Abdul Khader, Abdul Rasheed and Sabeena v. Salmath C.P.

“C.R.” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942 OP (FC).No.362 OF 2020 AGAINST THE ORDER/JUDGMENT IN OP 779/2014 OF FAMILY COURT, TIRUR ## PETITIONER/S: 1 ABDUL KHADER AGED 56 YEARS S/O. KUNNIMARAKKAR, PALAKKAL (H), MUNAKAKADAVU, KADAPPURAM P.O, IQBAL NAGAR, CHAVAKKAD, THRISSUR DISTRICT-680 514 2 ABDUL RASHEED, AGED 36 YEARS S/O. ABDUL KHADER, PALAKKAL (H),MUNAKAKADAVU, KADAPPURAM P.O, IQBAL NAGAR, CHAVAKAD, THRISSUR DISTRICT-680 514 3 SABEENA, AGED 35 YEARS D/O. ABDUL KHADER, PALAKKAL (H), MUNAKAKADAVU, KADAPPURAM P.O, IQBAL NAGAR, CHAVAKAD, THRISSUR DISTRICT-680 514 BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT/S: SALMATH C.P AGED 29 YEARS D/O. C.P. HAMSA, CHAKANNAPARAMBIL (H), PURATHUR P.O, TIRUR TALUK, MALAPPURAM DISTRICT-676 102 R1 BY ADV. SRI.E.C.AHAMED FAZIL THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P.(FC) No.362/2020** **-2-** **==> picture [31 x 10] intentionally omitted <==** ## **J U D G M E N T** Dated this the 17th day of November 2020 ## Bechu Kurian Thomas, J. Respondents in O.P No.779 of 2014 on the files of the Family Court, Tirur were set _ex parte_ and a decree was passed on 05.04.2018. The aforementioned case was filed by the wife in a marital relationship, against her husband and in-laws, seeking recovery of money and gold ornaments. Two applications were thereafter filed as I.A. No.754/2019 and I.A. No.755/2019 - the former by the husband and the latter by the three in-laws (mother-in-law had expired in the meantime). The applications were allowed and the _ex parte_ decree was set aside on condition that ¼ of the decretal amount be deposited. The husband has chosen not to challenge the orders, while the in-laws have **-3-** ## **O.P.(FC) No.362/2020** challenged the order in this original petition. 2. The application for setting aside the _ex parte_ decree was filed along with a petition to condone the delay of 245 days in filing the same. The respondent objected to the applications and contended that the applicants were all along aware about the passing of _ex parte_ order and also that the delay was in fact 307 days and the same was not properly explained. 3. Considering the nature of the case and the prejudice that may be caused to the parties if an order on merits is not passed, the Family Court allowed the applications for setting aside the _ex parte_ order and condoned the delay on condition that the applicants deposit 1/4[th] of the decretal amount within one month. Petitioners challenge the condition of deposit of 1/4[th] of the decretal amount ordered in I.A. No.755/2019 and submits that it is too onerous a condition to be complied with. ## **O.P.(FC) No.362/2020** **-4-** 4. Adv.Dhanya P.Ashokan, learned counsel for the petitioners, submitted that the condition imposed is too onerous and harshly excessive, practically rendering the compliance of condition incapable of performance. 5. Adv.E.C.Ahammed Fazil, learned counsel for the respondent, on the other hand contended that the steps adopted by the petitioners all along were nothing but a ploy to delay the consideration of the main case. According to the learned counsel, the condition of deposit of 1/4[th] of the decretal amount was imposed by the Family Court after being convinced of the delaying tactics adopted by the petitioners even on earlier occasions. _ex_ 6. While considering an application for setting aside an _parte_ decree or order, the court should always be mindful of the requirement that litigation should not be terminated by default, whether it be of the plaintiff or defendant. The cause of justice **-5-** ## **O.P.(FC) No.362/2020** entails a requirement to have an adjudication to be done on merits, unless the circumstances warrant a different procedure. The expression sufficient cause is to receive a liberal construction, so as to advance substantial justice. When there is no negligence, inaction or wanton default attributable to the parties, the delay has to be condoned. The discretion is to be exercised, like any other judicial discretion, with vigilance and circumspection. The discretion is not to be exercised in any arbitrary, vague or fanciful manner as laid down in the decision in **GMG Engineering industries and others v. M/S Issa Green Power Solutions and Others** [(2015) 15 SCC 659]. The observation of the Supreme Court in **Robin Thapa v. Rohit Dora** [2019 (3) KLT 525], is also relevant in this context. It was observed as below: “8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the **-6-** ## **O.P.(FC) No.362/2020** defendant. The cause of justice does require that as far as possible, adjudication be done on merits.” 7. Purposeful delays, repeated acts of willful defaults, delaying tactics deployed are some of the instances when the _ex_ courts can adopt a different procedure, while setting aside _parte_ orders. Courts are not denuded of the power to impose conditions while setting aside _ex parte_ decree, as there is a discretionary jurisdiction vested upon the courts, not only when sufficient cause for non-appearance has been shown on the date when the decree was passed, but also even on other attendant circumstances. Putting the defendant to terms by imposing costs is a method often deployed by courts, while setting aside _ex parte_ orders/decrees. 8. However, it is trite law that while imposing conditions or terms, as the case may be, the conditions or terms should not be unreasonable, or harshly excessive. Costs should be so assessed as to reasonably compensate the party for the ## **O.P.(FC) No.362/2020** **-7-** loss of time and inconvenience caused by relegating the proceedings back to the earlier stage. While exercising the power to impose conditions, courts ought not exercise its power in such a manner, that the terms imposed, itself, may have the effect of prejudging the controversy involved in the suit and virtually decreeing the suit or amounts, in effect, execution of a possible decree that may be granted in the suit ultimately. Reference can profitably be made to the decision in **Vijay Kumar Madan and Others v. R.N Gupta Technical Education Society and Others** [(2002) 5 SCC 30] **, V.K.Industries and Others v. M.P. Electricity Board, Rampur, Jabalpur,** [(2002) 3 SCC 159], and **Tea Auction Ltd. v. Grace Hill Tea Industry and Another** [(2006) 12 SCC 104]. 9. Thus, it has been a consistent rule of law enunciated by the courts that though conditions can be imposed while setting aside _ex pate_ orders/decrees, the conditions imposed shall not ## **O.P.(FC) No.362/2020** **-8-** be too onerous in nature or impossible of performance. By directing the deposit of 1/4[th] of the decretal amount for the purpose of condoning the delay and to set aside _ex parte_ decree, the petitioners have, in fact been converted into judgment debtors. It is informed across the Bar, that the amount involved in the decree is more than Rs.16 lakhs and thus, if the impugned order is upheld, the petitioners would end up paying Rs.4 lakhs as conditions for setting aside the _ex parte_ order. The aforesaid condition is too onerous and legally improper. 10. Reckoning the various aspects of this case and having regard to the fact that substantial amounts are claimed in the suit, we are of the view that the condition imposed by the Family Court, Tirur in I.A. No.755 of 2019 in O.P. No.779 of 2014 is untenable and irregular. We set aside the order dated 29.08.2019 in I.A. No.755 of 2019 in O.P. No.779 of 2014 on the files of the Family Court, Tirur, to the extent it imposes a **-9-** ## **O.P.(FC) No.362/2020** condition of deposit of 1/4[th] of the decretal amount. 11. Even though we set aside the order imposing the condition, taking note of the factual situation, as revealed from the order impugned and from the submissions of the learned counsel, we are of the view that the petitioners ought to be mulcted with terms for allowing this original petition. Having regard to the facts of the case, we impose a cost of Rs.10,000/against the petitioners which shall be paid to the respondent through demand draft, within two weeks from the date of receipt of a copy of this judgment . It is made clear that if there is any default in payment of terms, the petitioners will not be able to derive any benefit from this judgment and the order impugned will stand revived. 12. Both counsel are unanimous in their view that since the original petition is of the year 2014, a speedy disposal of the case would be beneficial to both parties. Taking note of the **-10-** ## **O.P.(FC) No.362/2020** above submission and having regard to the facts of the case, we are of the view that the above said submission is not unjustified. 13. Accordingly, while setting aside the order in I.A. No.755/2019 in O.P. No.779/2014, there will be a direction to the Family Court, Tirur to dispose of O.P. No.779 of 2014 pending on its files, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. ## The original petition is allowed as above. Sd/S.V.BHATTI JUDGE Sd/- BECHU KURIAN THOMAS JUDGE Vps/jjj **-11-** ## **O.P.(FC) No.362/2020** ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF O.P. NO. 779/2014 DATED 27.12.2014 ON THE FILE OF THE FAMILY COURT, TIRUR. EXHIBIT P2 TRUE COPY OF MEDICAL CERTIFICATE DATED 03.10.2020 ISSUED FROM THE TRICHUR HEART HOSPITAL LTD. EXHIBIT P3 TRUE COPY OF I.A. NO.755/2019 IN O.P. NO. 779/2014 DATED 02.04.2019 ON THE FILE OF THE FAMILY COURT, TIRUR. EXHIBIT P4 TRUE COPY OF COUNTER DATED 22.06.2019 TO EXHIBIT P3. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 29.08.2019 IN I.A. NO. 755/2019 IN OP NO. 779/2014 ON THE FILE OF THE FAMILY COURT, TIRUR.