This matrimonial appeal challenged an order dismissing an application to set aside an ex parte judgment and decree. The High Court upheld the trial court's finding that the six-year delay was not bona fide, as the appellant had knowledge of the proceedings after being arrested in 2012.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 30TH DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945
MAT.APPEAL NO. 315 OF 2023
AGAINST THE COMMON ORDER IN I.A.NO.2/2021 & 3/2021 IN O.P.NO.220/2012 DATED 12/01/2023 OF FAMILY COURT, THODUPUZHA, IDUKKI DIST.
APPELLANT:-PETITIONER
SANEESH KARIM, AGED 39 YEARS, S/O ABDUL KARIM, KODIPARAMBIL (H), PATTAYMKAVALA KARA, KARIKODE VILLAGE, THODUPUZHA TALUK, IDUKKI (DIST.), PIN – 685 605.
BY ADVS. ANIL K.MUHAMED KRISHNAKUMAR G. AJIN SALAM
RESPONDENTS:RESPONDENTS
1 SHAFEENA V.A., AGED 31 YEARS, D/O ABDUL KARIM, VELLAMKUDIYIL (H), VANNAPURAM KARA, VANNAPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI (DIST.), PIN – 685 607. 2 ABDUL KARIM, AGED 75 YEARS, S/O MUHAMMED, KODIPARAMBIL (H), PATTAYMKAVALA KARA, KARIKODE VILLAGE, THODUPUZHA TALUK, IDUKKI (DIST.), PIN – 685 605. 3 NABEESATH BEEVI, AGED 62 YEARS, W/O ABDUL KARIM, KODIPARAMBIL (H), PATTAYMKAVALA KARA, KARIKODE VILLAGE, THODUPUZHA TALUK, IDUKKI (DIST.), PIN – 685 605.
Mat Appeal No.1707 of 2023
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BY ADVS. SANDEEP M.B K.P.SREEJA(K/788/2015)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat Appeal No.1707 of 2023
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AMIT RAWAL & C.S.SUDHA, JJ.
Mat Appeal No.315 of 2023
Dated this the 30th day of October, 2023
J U D G M E N T
Amit Rawal, J.
C.M.A.No.1/2023
For the reasons stated in the affidavit accompanying the application, filing delay of 99 days is condoned.
Mat. A. No.315 of 2023
This appeal is directed against the order dated 12.01.2023 rendered in I.A.No.2/2021 & 3/2021 in O.P.No.220/2012 whereby the application seeking setting aside of ex parte judgment and decree dated 26.06.2014 has been dismissed on merits as well as on the ground of delay. Respondent/wife instituted O.P.No.220/2012 for return of money and gold ornaments arraying husband/appellant and his parents as respondents. The notice sent by the Court was accepted by the parents but the summons addressed in the name of the appellant was not accepted by them. Parents contested the matter, resulted into an ex parte judgment against the husband.
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After delay of 2785 days, I.A.Nos.2/2021 & 3/2021 have been preferred for setting aside the ex parte judgment and decree on the ground that appellant received the notice of execution petition bearing No.6 of 2020 when he came down to his native town in 2020. When the original petition was filed he was working abroad and could not appear before the court or contest the matter. The decree has been passed on false allegation. Learned trial court on the basis of the evidence brought on record dismissed the application.
2 . Learned counsel appearing on behalf of the appellant submitted that the impugned order is wholly illegal and improper. The evidence adduced in this case has not been considered in a proper manner. Appellant after relinquishing the job abroad returned to India only in 2020 and when received the notice on execution petition, filed the application. Therefore, the delay was not intentional. The parents did not inform the husband of institution of the petition by the respondent/wife as he did not gel along. All these factors are essential and necessary in case the ex parte judgment and decree is set aside subject to any terms and conditions of this Hon'ble Court.
3. Though notice was effected on all the respondents, there is no appearance.
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4 . We have heard learned counsel for the parties and appraised the
paper book.
5 . We are of the view that the findings recorded by the trial court
would not call for a different finding as neither it is perverse nor erroneous for the following reason that the appellant had obtained employment on 15.04.2012 whereas the original petition was filed on 26.05.2012 . No doubt the petition was filed subsequently and had the petitioner not visited India during all this period and actually came back in 2020 as per the averments, there would have been some force. But it is not so, for it is uncontroverted that on 04.12.2012, on a visit to India, was arrested by the police and produced before the judicial magistrate. An attempt to settle the matter was also done and the maintenance ordered in the name of child was paid. In fact the arrest was made on account of non payment of the maintenance. This fact was not disclosed or averred in the petition. It has come only in the evidence on behalf of the parents. Once there was knowledge of the ex parte judgment and decree dated 26.06.2014 when the petitioner was arrested, no explanation of 6 (six) years in not submitting the application for setting aside the judgment and decree, has been given. All these factors
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has been rightly considered by the trial court. Judgment and decree of the
trial court do not call for any interference.
Appeal stands dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA JUDGE
ak
2 issues framed by the court
Whether the High Court should set aside the ex parte judgment and decree dated 26.06.2014 on grounds of delay.
Whether the appellant's explanation regarding non-payment of maintenance and his presence in India was sufficient to justify the 6-year delay in filing an application to set aside the decree.
Saneesh Karim
Shafeena V.A.
Abdul Karim
Nabeesath Beevi
Amit Rawal
C.S. Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
