Dismissed

Dharmajan v. Ramya

Kerala HC14 Nov 2023Mat.Appeal/562/2023

Case brief

AI extract

What is this about?

The High Court at Kochi disposed of a matrimonial appeal by dismissing the application for condonation of delay. The appellants sought to file the appeal against an ex parte decree after a delay of 3700 days, citing health issues and lack of legal counsel. The Court found the averments under Section 5 of the Limitation Act insufficient and dismissed the application, leading to the dismissal of the

What did the court decide?

Application for condonation of delay dismissed; appeal stood dismissed.

Dharmajan Vs Ramya — Matrimonial and Divorce | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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&

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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TUESDAY, THE 14TH DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945

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MAT.APPEAL NO. 562 OF 2023

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AGAINST THE DECREE IN OPOS 566/2010 OF FAMILY COURT, ALAPPUZHA APPELLANTS/RESPONDENTS 2 & 3:

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1 DHARMAJAN

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AGED 67 YEARS
S/O KOCHUCHERUKKAN, DHARMAPURAM VEETTIL MALAMELBHAGOM
MURI KEERIKAD, ALAPPUZHA, PIN – 690508

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2BAVA DHARMAJAN
AGED 62 YEARS
W/O DHARMAJAN, DHARMAPURAM VEETTIL MALAMELBHAGOM MURI,
KEERIKAD, ALAPPUZHA, PIN – 690508
BY ADV
M.R.SASITH

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RESPONDENT/PETITIONER & RESPONDENT NO.1:

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1RAMYA
AGED 39 YEARS
D/O ANANDAVALLY, PEEDIKAYIL HOUSE
THAMALLAKKAL SOUTH MURI, KUMARAPURAM VILLAGE,
PIN – 690514

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2DHANESH DHARMAJAN
AGED 41 YEARS
S/O DHARMAJAN, DHARMAPURAM, VEETTIL MALAMELBHAGOM MURI
KEERIKAD, ALAPPUZHA, PIN – 690508
BY ADV
K.K.SATHISH

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MAT.APPEAL NO. 562 OF 2023 -2-

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JUDGMENT

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C.M.Appln.No.1 of 2023 & Mat.A.No.562 of 2023

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AMIT RAWAL, J.

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Against the ex parte judgment and decree for return of the gold ornaments rendered in O.P.OS No.566 of 2010 dated 19.04.2013 present appeal with the application for condonation of delay of nine and half (9¹ /2) years i.e., three thousand and seven hundred (3700) days has been preferred by making the following averments in paragraph No.5 of the affidavit accompanying the application for condonation of delay:

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“It is respectfully submitted that, the fair copy of the impugned order was received by me on 17.11.2022. That the time for filing the appeal before this Hon’ble Court expired on 23.05.2013. But in the meanwhile, the appellants had filed two IAs before the Family Court below as IA 1/2022 filed under Order 9 Rule 13 of the Code of Civil Procedure to set aside the ex parte decree dated and also filed another IA as IA no. 2/2022 for condoning delay of 3700 days. The appellants also pleaded the

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MAT.APPEAL NO. 562 OF 2023 -3-

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reasons for such delay. The 2nd respondent was working in Indian Army and couldn’t come home. The 1st appellant was seriously ill due to heart problems and the 2nd appellant had to take care of the 1^st appellant herein due to which they couldn’t appear before the court below. But the learned Family court judge did not accept this reasoning for non-appearance. Due to said reason they were set ex-parte and the case was decreed ex-parte subsequently. Also, the appellants herein failed to follow-up with the family court counsel at the right time with respect to the developments in their case which added to further delay. Now that, only on 30.05.2023, the appellants were able to find a lawyer at Ernakulam and entrust the required files for drafting the present appeal.”

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The aforementioned averments does not suffice

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the requirement of provisions of Section 5 of the Limitations Act for condoning each every days of delay much less even a month’s delay have not been explained as required in law, rather there was an admission that they did not follow up with the counsel before the Family Court. Even there is no averment as to how and in what manner they inquired about the ex parte judgment. The

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MAT.APPEAL NO. 562 OF 2023 -4-

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certified copy was stated to have been applied on 10.11.2022 and after that it took more than six months to find and engage a lawyer at Ernakulam on 30.05.2023.

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We are of the view that such a tardy approach in contesting the ex parte decree does not require any interference or concession. No ground for interference is made out. Application for condonation of delay is dismissed, consequently the appeal stands dismissed.

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Sd/-

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AMIT RAWAL JUDGE

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Sd/-

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C.S. SUDHA JUDGE

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vv

Dharmajan v. Ramya

Case brief

What is this about?

What did the court decide?

Dharmajan v. Ramya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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