Assainar and Hafsath v. Sabira and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939 OP (FC).No. 114 of 2017 (R) ---------------------------- (AGAINST THE ORDER IN I.A.NOS.1482/2015 & 1483/2015 IN O.P.NO.952/2010 OF FAMILY COURT, MALAPPURAM) PETITIONERS: ----------- 1. ASSAINAR AGED 57 YEARS, MALIYEKKALAKATH HOUSE, NEAR PALLIKKULAM, ARAYAN KADAPPURAM P.O KOOTAYI,TIRUR TALUK, MALAPPURAM DISTRICT 2. HAFSATH AGED 47 YEARS, W/O. ASSAINAR, MALIYEKKALATH HOUSE NEAR PALLIKKULAM, ARAYAN KADAPPURAM, P.O KOOTAYI, TIRUR TALUK, MALAPPURAM DISTRICT BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS: ----------- 1. SABIRA D/O. ALIKOYA,AGED 29 YEARS KALATHALAKATH HOUSE, OTTUMPURAM P.O TANUR 676 302 MALAPPURAM DISTRICT 2. ASNA AGED 9 YEARS, (MINOR) REPRESENTED BY MOTHER AND GUARDIOAN, SABIRA, D/O. ALIKOYA KALATHALAKATH HOUSE, OTTUMPURAM P.O TANUR 676 302 MALAPPURAM DISTRICT 3. BILAL AGED 8 YEARS,(MINOR) REPRESENTED BY MOTHER AND GUARDIAN SABIRA, D/O. ALIKOYA, KALATHALAKATH HOUSE, OTTUMPURAM,P.O TANUR 676 302 MALAPPURAM DISTRICT 4. RAFEEQ S/O. ASSAINAR MALIYEKKALAKATH HOUSE, NEWAR PALLIKKULAM, ARAYAN KADAPPURAM, P.O KOOTAYI, TIRUR TALUK, MALAPPURAM DISTRICT R1-R3 BY ADV. SRI.K.K.SAIDALAVI THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 16-062017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 114 of 2017 (R) ---------------------------- APPENDIX PETITIONERS' EXHIBITS --------------------EXHIBIT P1 TRUE COPY OF THE O.P NO 952/2010 OF FAMILY COURT, MALAPPURAM EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE PETITIONERS AND 4TH RESPONDENT IN O.P NO 952/2010 OF FAMILY COURT, MALAPPURAM EXHIBIT P3 TRUE COPY OF THE ORDER DATED 5/7/2011 IN O.P NO 952/2010 OF FAMILY COURT, MALAPPURAM EXHIBIT P4 TRUE COPY OF THE I.A 1482/2015 FILED BY THE PETITIONERS IN O.P NO 952/2010 OF FAMILY COURT, MALAPPURAM EXHIBIT P5 TRUE COPY OF THE I.A NO 1119/2016 FILED BY THE 4TH RESPONDENT IN O.P NO 952/2010 OF FAMILY COURT, MALAPPURAM EXHIBIT P6 TRUE COPY OF THE I.A NO 1120/2016 FILED BY THE 4TH RESPONDENT IN O.P NO 952/2010 OF FAMILY COURT, MALAPPURAM EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 30/11/2016 IN OP(FC) NO 386/2016 OF THIS HON'BLE COURT EXHIBIT P8 TRUE COPY OF THE ORDER DATED 3/2/2017 IN I.A NOS 1482/2015 & 1483/2015 IN O.P NO 952/2010 RESPONDENTS' EXHIBITS --------------------- NIL TRUE COPY PA TO JUDGE ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** O.P.(FC) No.114 of 2017 ---------------------------------------Dated this the 16[th] day of June 2017 ## **J U D G M E N T** ## **Shaffique, J** Though notice is not served on the 4[th] respondent, we do not think it necessary for the purpose of disposing of the above original petition. 2. The short facts involved in the case would show that the 1[st] respondent is the wife of the 4[th] respondent and respondents 2 and 3 are the children born to them. Respondents 1 to 3 filed a petition seeking past maintenance, future maintenance, return of gold ornaments and return of money which was decreed ex parte as per Ext.P3 order dated 05/07/2011. As per the decree, the 4[th] respondent herein along with the petitioners herein have been directed to return 45 sovereigns of gold ornaments along with Rs.5,50,000/-. The main contention urged by the petitioners is that the 4[th] respondent, their son, was conducting the case and he did not inform the petitioners about the case being decided ex parte. In fact, the O.P.(FC) No.114/2017 2 property belonging to the 2[nd] respondent having an extent of 10 cents was attached at the time of execution and sale was also conducted. The auction purchaser had deposited 1/3[rd] of the amount before the Court below. 3. The petitioners having come to know about the ex parte decree, filed I.A.No.1482/2015 to condone the delay of 1583 days in filing a petition to set aside the ex parte decree along with an application I.A.No.1483/2015 to set aside the ex parte decree against them. The Family Court, having considered the matter, observed that a lenient view has to be taken in the matter especially on account of the factual situation involved in the case and accordingly allowed the petition, but with a condition that the petitioners shall deposit 30% of the decree amount and also pay Rs.10,000/- as cost. 4. When the above matter came up for admission, this Court directed the petitioners to remit Rs.10,000/- which was directed to be paid as cost and it is submitted by the learned counsel for the petitioners that the said amount has already been deposited and it is acknowledged by the learned counsel appearing for the respondents 1 to 3. O.P.(FC) No.114/2017 3 5. The learned counsel for the petitioners contended that the direction of the Family Court to pay 30% of the decree amount is too onerous. First of all, there is no obligation to pay any such amount. They have not taken any of the gold ornaments or money. Their son is responsible for the conduct of the case and the petitioners did not get proper opportunity to contest the case. It is also contended that there is collusion between their son and the 1[st] respondent and they were living together and a third child had been born to them. Therefore, the only intention of the couple is to deprive the right of the petitioners to the only property they are having. Petitioners are fishermen and they have other children to be taken care of and at this stage, if they are directed to pay 30% of the decree amount to condone the delay, they will be put to serious hardship. 6. On the other hand, learned counsel appearing for respondents 1 to 3 denied the allegation of collusion. According to the learned counsel, there was an earlier judgment of this Court in O.P.(FC) No.386/2016 by which execution proceedings were stayed on condition that the 1[st] petitioner shall deposit 30% of the decree amount and it is, in the said circumstances, that the O.P.(FC) No.114/2017 4 Family Court had directed to deposit 30% of the decree amount as a condition to allow I.A.Nos.1482/2015 and I.A.No.1483/2015. The 1[st] petitioner in O.P.No.386/2015 is none other than the 4[th] respondent herein. Therefore, we do not think that the judgment in O.P.No.386/2016 will render any assistance to the respondents in contending that there is justification on the part of the Family Court in directing 30% of the decree amount. It is also contended that the 4[th] respondent has left the 1[st] respondent and he has remarried another person and is living separately. 7. Be that as it may, while considering an application to condone the delay and the application to set aside the ex parte decree, the Court will have to consider the factual aspects involved in the matter and primarily the question to be considered is whether there is sufficient cause to condone the delay. This is an instance where the contention urged by the petitioners was that their son was contesting the matter on their behalf. They came to know about the proceedings prior to the execution and proper applications were filed in this regard. This contention appears to be justifiable. The 4[th] respondent did not take further steps to contest the matter and an ex parte had been passed by O.P.(FC) No.114/2017 5 the Family Court. Thereafter, he remained quiet for a considerably long period and ultimately he had only come before this Court by filing O.P.No.386/2015 along with the petitioners herein. The Family Court, however, found that there is justification to condone the delay, but directed payment of 30% of the decree amount. 8. It is trite that the conditions, which are too onerous, cannot be imposed while condoning delay or setting aside the ex part decree. We are fortified to take this view in the light of the judgment in **Antony Varkey v. South Indian Bank Ltd.** _[1991 (1) KLT 414]_ , the Division Bench judgment in **Kerala Packaging Pvt.Ltd. v. M/s.Ramalinga Iyer** _[2000(3) KLT SN 65 (C.No.70)]_ and the Apex Court judgment in **V.K.Industries v. M.P.Electricity Board** _[(2002) 3 SCC 159]_ . When the Court below is satisfied that the ex parte decree has to be set aside, we are of the view that the direction to pay 30% of the decree amount as a condition is too onerous which the petitioners will not be in a position to comply, especially on account of their contention that they are only in possession of 13 cents of land which is already under attachment and execution proceedings O.P.(FC) No.114/2017 6 had been initiated against the said property. 9. Having regard to the overall facts and circumstances of the case, we are of the view that an opportunity has to be given to the petitioners to contest the case. However, we do not intend to disturb the decree passed by the Family Court against the 4[th] respondent. In the result, this original petition is disposed of as under: i) The order in I.A.No.1482/2015 and 1483/2015 dated 03/02/2017 directing deposit of 30% of the decree amount is hereby set aside. ii) In so far as the direction to pay cost has already been complied, decree as against the petitioners herein alone shall stand set aside. iii) The Family Court shall permit the petitioners herein to contest the matter, in accordance with law and the matter shall be disposed of within a period of six months from today. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(ANU SIVARAMAN, JUDGE)** jsr