Dismissed

Reeba Joseph v. Binil Abraham

Kerala HC9 Feb 2023OP (FC)/315/2022

Case brief

AI extract

What is this about?

An appeal was filed against a Family Court order setting aside an ex parte decree and condoning delay. The High Court examined issues of service of notice and condonation of delay, referring to a High Court Apex Court decision on limitation. The High Court dismissed the appeal, upholding the Family Court's decision to allow the petition and restore the proceedings.

What did the court decide?

Appeal dismissed; Family Court order setting aside ex parte decree and condoning delay remained.

Reeba Joseph Vs Binil Abraham — Matrimonial and Divorce | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶4

¶5

THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

¶6

THURSDAY, THE 9^TH DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 O.P.(FC) NO. 315 OF 2022

¶7

AGAINST THE ORDER DATED 29.01.2022 IN I.A.NOS.1 OF 2021 AND 2 OF 2021 IN O.P.NO.926 OF 2018 ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

¶8

PETITIONER:

¶9

REEBA JOSEPH AGED 37 YEARS

¶10

NATTASSERI EDATHIL (H), I.T.I.CHENAKKAL ROAD, KALAMASSERY, HMT P.O., KOCHI, PIN – 683503.

¶11

BY ADVS.

¶12

ARUN KRISHNA DHAN ARJUN SREEDHAR T.K.SANDEEP ALEX ABRAHAM VEENA HARIKUMAR

¶13

RESPONDENTS:

¶14

1 BINIL ABRAHAM AGED 40 YEARS S/O.K.A.ABRAHAM, RESIDING AT FLAT NO.1301, ANIRUDDHA HEIGHTS, PLOT NO.168, SECTOR 34, KAMOTHE, NAVI, MUMBAI, PIN – 410209.

¶15

¶16

O.P.(FC) No.315 of 2022

¶17

2 K.A. ABRAHAM AGED 70 YEARS RESIDING AT FLAT NO.1301, ANIRUDDHA HEIGHTS, PLOT NO.168, SECTOR 34, KAMOTHE, NAVI, MUMBAI, PIN – 410209.

¶18

BY ADV DAISY IRENE DANIEL

¶19

THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

¶21

O.P.(FC) No.315 of 2022

¶22

JUDGMENT

¶23

P.G. Ajithkumar, J.

¶24

This Original Petition under Article 227 of the

¶25

Constitution of India is filed by respondent in I.A.Nos.1 and 2 of 2021 in O.P.No.926 of 2018 before the Family Court, Kottayam at Ettumanoor. As per Ext.P8 order (sic), the Family Court allowed the said interlocutory applications on payment of a cost of Rs.5,000/-. The petitioner seeks to set aside Ext.P8 order.

¶26

On 06.06.2022, notice on admission was directed to be served on the respondents. Further proceedings in O.P.No.926 of 2018 was directed to be kept in abeyance for a period of one month. The interim order was later extended.

¶27

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

¶28

The Family Court holding that there was no due service of notice on the petitioner, set aside the exparte decree dated 16.11.2019 in O.P.No.926 of 2018. Paragraph

¶29

¶30

O.P.(FC) No.315 of 2022

¶31

No.6 of the impugned order reads,-

¶32

“6. A perusal of records would go to show that the respondents have been set exparte. Admittedly there was no direct service. The notices were returned unclaimed. The returned notices would also show that it was sent to Kurichy address. A perusal of the original petition would also show that the respondents in the O.P are residing at Navy Mumbai. But the permanent address is shown as at Kurichy. This is inspite of the petitioner is knowing that the respondents are residing in Navy Mumbai in Maharashtra. There is no reason as to why the notices were not sent to the place where the respondents are available. So there is force in the contention by the applicants that they have not been served with notice. At the same time as far as delay is concerned, admittedly the petitioner came to know about exparte decree on 03.12.2020. These petitions are filed only on 15.03.2021. There is no proper explanation for the delay. The petitioner also came down to meet his counsel only on 16.01.2021. The counsel had received the certified copies of order before 16.01.2021. Inspite of all these, the petition is filed only on 15.03.2021. So it is evident that there is no proper explanation for the delay. At the same it is always desirable to have a final disposal of the case after hearing both sides. In that view of the matter this court is inclined to allow this petition. At the same

¶33

¶34

O.P.(FC) No.315 of 2022

¶35

time this court cannot be oblivious of the inconvenience caused to the respondent/petitioner in the O.P. Therefore the petitions can be allowed only on terms. Considering the facts and circumstances of the case a cost of Rs.5,000/- appears to be a reasonable cost.”

¶36

The exparte decree was passed on 16.11.2019. I.A.Nos.1 and 2 of 2021 were filed on 15.03.2021. The delay was sought to be condoned on the ground that the respondents did not received any notice in O.P.No.926 of 2018 and knew about the case only on 03.12.2020. It may be noted that on account of the decision of the Apex Court in In

¶37

Re:Cognizance for Extension of Limitation [2021 (5)

¶38

KHC 508] , the delay from 15.03.2020 till 15.03.2021 on which date these applications were filed, is liable to be excluded while computing the period of delay.

¶39

The learned counsel appearing for the petitioner would submit that the finding of the Family Court that there was no service of notice on the respondents is incorrect, and therefore the impugned order is liable to be set aside. The learned counsel would point out that the petitioner has been

¶40

¶41

O.P.(FC) No.315 of 2022

¶42

residing at his address at Navi Mumbai given in O.P.No.926 of 2018 and notice sent from the court in that address returned unclaimed, and therefore it can only be said that there is valid service. Ext.P5 is a copy of the envelope of the notice sent in the Navi Mumbai address of the 1^st respondent from the court. From the endorsement that the notice was unclaimed, it cannot be said that the respondents did get notice regarding the original petition. Hence, it is incorrect to say that the respondents, after getting information regarding the pendency, failed to appear before the court in O.P.No.926 of 2018. In that view of the matter the finding of the Family Court that there was no proper service of notice on the respondents cannot be found fault with. At any rate, the said facts and circumstances justify condonation of delay and setting aside of the exparte decree.

¶43

I.A.Nos.1 and 2 of 2021 were allowed by the Family Court on a cost of Rs.5,000/-. The cost was already paid and O.P.No.926 of 2018 was restored on file. The dispute is between parties to a marriage. Considering all such

¶44

¶45

O.P.(FC) No.315 of 2022

¶46

circumstances, we are of the view that there is no reason to interfere with the order of the Family Court dated 29.01.2022

¶47

in I.A.Nos.1 and 2 of 2021 in O.P.No.926 of 2018. Hence, this appeal is dismissed.

¶48

Sd/-

¶49

ANIL K. NARENDRAN, JUDGE

¶50

Sd/-

¶51

P.G. AJITHKUMAR, JUDGE

¶52

dkr

¶53

¶54

O.P.(FC) No.315 of 2022

¶55

APPENDIX OF OP (FC) 315/2022 PETITIONER EXHIBITS

¶56

EXHIBIT1 TRUE COPY OF THE COMMON JUDGMENT DATED 10.07.2013 IN O.P 1260/2011 & O.P 1510/2012 OF FAMILY COURT, KOTTAYAM

¶57

EXHIBIT-P1(A) TRUE COPY OF THE PETITION FILED IN O.P 926/2018 DATED 21.07.2018 BEFORE FAMILY COURT, KOTTAYAM AT ETTUMANOOR EXHIBIT-P2 TRUE COPY OF THE JUDGMENT AND DECREE IN O.P.NO.926/2018 OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

¶58

EXHIBIT-P3 TRUE COPY OF THE I.A NO.1/ 2021 IN O.P 926/2018 ON THE FILE OF FAMILY COURT KOTTAYAM AT ETTUMANOOR

¶59

EXHIBIT-P4 TRUE COPY OF THE I.A NO.2/ 2021 IN O.P 926/2018 ON THE FILE OF FAMILY COURT KOTTAYAM AT ETTUMANOOR

¶60

EXHIBIT-P5 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD CARRYING THE ENDORSEMENT "UNCLAIMED" (AND 'INT' 01/09/18 - REFERS TO INTIMATION GIVEN ON 01/09 / 18) RECEIVED BY THE FAMILY COURT

¶61

EXHIBIT-P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 1/2021 IN O.P. 926/2018 EXHIBIT-P7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A. NO. 2/2021 IN O.P. 926/2018

¶62

EXHIBIT-P8 TRUE COPY OF THE JUDGMENT DATED 29.01.2022 IN I.A. NO. 1/2021 & I.A. NO. 2/2021 IN O.P. 926/ 2018 BY THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

¶63

¶64

O.P.(FC) No.315 of 2022

¶65

EXHIBIT P9 CERTIFIED COPY OF THE MEMO DATED 02.03.2022 ON THE FILES OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR

Reeba Joseph v. Binil Abraham

Case brief

What is this about?

What did the court decide?

Reeba Joseph v. Binil Abraham

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Remsi.a. Vs Muneer. M

A.L.Varadarajan, Vs State of Kerala

Hari Krishnan Vs S. Padmakumar

Hasheen Mehmood Vs Salman Bin Ameer Ali

The Cochin Devaswom Board Vs Sasi K

Suo Motu Vs Travancore Devaswom Board - Tdb