High Court of KeralaDivision BenchDisposed of

Biju Menon v. Priya Eapen and others (Mat Appeal No. 807 of 2022)

Case / Petition Number:MAT.APPEAL NO. 807 OF 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Amit Rawal, J.
  • C.S. Sudha, J.
Judgment Date
2023-09-15
Court Decision / Holding
The High Court condones the 900‑day delay subject to conditions: the appellant must pay costs of Rs. 25,000 to the respondent wife; deposit 50% of Rs. 17,20,150 within one month from receipt of a certified copy of the judgment; furnish security for the balance to the satisfaction of the trial court. If there is non‑compliance, the ex‑parte judgment dated 04.10.2018 will stand revived. The trial court is directed to endeavour to complete the trial within six months from appearance. This Matrimonial Appeal is disposed of by allowing the condonation on terms and permitting the husband to contest subject to compliance with the conditions.
Final Disposition
Disposed of

Parties to the Case

Appellants / Petitioners

  • Biju Menon

Respondents

  • Priya Eapen (Priya Biju Menon)
  • M/S Desai Homes Owners and Promoters & Builders
  • Housing Development Finance Corporation Ltd

Legal Representation & Advocates

Counsels for Petitioners

  • • K.K. Jyothilakshmy

Counsels for Respondents

  • • Adv. Mary Benjemin

Case Synopsis & Summary

This matrimonial appeal challenges two Family Court orders (I.A. Nos. 2184/2021 and 2185/2021 in O.P. No. 1714/2015) in Ernakulam, arising from a long‑drawn dispute between spouses who married in 2005 and separated in 2008. The wife filed for divorce (O.P. 239/2010) and later sought recovery of a share in jointly acquired property; divorce was granted in 2015 by the Family Court, Coimbatore. In 2018, the Family Court at Ernakulam passed a decree in O.P. 1714/2015, declaring the wife entitled to Rs. 17,20,150 from the sale proceeds of property in joint names and issuing a prohibitory injunction preventing the husband from receiving sums from respondents 2–4. The husband, served but ex‑parte, contends he was unaware of proceedings while posted in Gujarat; he requested condonation of a 900‑day delay and setting aside the ex‑parte decree. The trial court dismissed the delay and set‑aside petitions. The Kerala High Court, after consideration, condones the 900‑day delay on terms: the husband must pay Rs. 25,000 as costs to the wife, deposit 50% of Rs. 17,20,150 within one month, and furnish security for the balance, with the trial court to complete trial within six months, failing which the ex‑parte decree may be revived. With these conditions, the appeal stands disposed of in the wife’s favor, preserving the wife’s rights while providing a controlled opportunity for the husband to contest.

Provisions of Law Cited

Section 498A of the Indian Penal Code

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the non‑participation was due to counsel’s failure to inform him or conduct the case, and relies on the Supreme Court decision in Rafiq and Anr. v. Munshilal and Anr. (AIR 1981 SC 1400) to argue that litigants should not bear the consequences of counsel’s lapse. He sought condonation of the 900‑day delay and an opportunity to lead evidence, subject to terms deemed appropriate by the Court. He asserts genuine interest in contesting the proceedings and a willingness to comply with reasonable conditions and to discharge any due obligations, including costs and security, so that the matter can proceed to a just resolution.

Contentions of Respondents

The wife and respondents submit that the delay is wilful and lacks a plausible explanation; there is a pattern of dilatory conduct and a failure of due diligence by the appellant. They contend that reliance on counsel’s lapse cannot justify setting aside an ex‑parte decree, and a costly condonation would erode the finality of the decree. They urge dismissal of the delay petitions with exemplary costs and maintain that the ex‑parte decree should stand unless the appellant convincingly demonstrates a timely, bona fide attempt to participate, which they argue was not done.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Rafiq and Another v. Munshilal and AnotherAIR 1981 SC 1400PositiveCourt relies on the principle that litigants should not suffer due to counsel’s lapse, supporting condonation of delay.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945** ## **MAT.APPEAL NO. 807 OF 2022** **AGAINST ORDER, DATED 15.03.2022 IN I.A. NO. 2184/2021 &** **I.A. NO. 2185/2021 IN** **O.P.NO. 1714/2015 OF FAMILY COURT,ERNAKULAM** ## **APPELLANT/PETITIONER/1ST RESPONDENT IN O.P.:** **BIJU MENON AGED 45 YEARS S/O GOPINANTHAN, RESIDING AT 19/70(2), HOUSE NO.44, AYILYAM, AKG NAGAR, WEST YAKKARA, MURIKKAVU, PALAKKAD, PIN – 678001** **BY ADV K.K.JYOTHILAKSHMY** ## **- RESPONDENTS/PETITIONER RESPONDENTS 2 & 4 IN O.P.:** **1 PRIYA EAPEN (PRIYA BIJU MENON) AGED 39 YEARS D/O EAPEN NINAN, RESIDING AT 102 A, SIVARAM NAGAR, SOUTH ENCLAVE, CHUNGAM, COIMBATORE, PIN – 641045** **2 M/S DESAI HOMES OWNERS AND PROMOTERS & BUILDERS, HAVING ITS PRESENT OFFICE AT 40/7669, C40, FIRST FLOOR, D.D VASTRA MAHAL, MARKET ROAD, COCHIN, PIN – 682011, REPRESENTED BY ITS MANAGING PARTNER MR. SIDHARTH .V.DESAI.,** **3 HOUSING DEVELOPMENT FINANCE CORPORATION LTD PK COMPLEX, FIRST FLOOR, MISSION SCHOOL JUNCTION,** **MAT.APPEAL NO. 807 OF 2022 2** **PALAKKAD, REPRESENTED BY ITS BRANCH MANAGER, PIN – 678014** **R1 BY ADV. MARY BENJEMIN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MAT.APPEAL NO. 807 OF 2022 3** ## **JUDGMENT** ## AMIT RAWAL, J. The present matrimonial appeal is directed against the order dated 15.03.2022 passed in I.A No. 2184/2021, for condonation of delay of 900 days in filing the petition to set aside the ex-parte judgment and I.A. No. 2185/2021, for setting aside the ex-parte judgment, filed by the appellant/husband in O.P. No. 1714/2015 filed by the first respondent/wife. Marriage between the parties, as per the averment in the petition, was solemnized on 16.11.2005. The parties could not live together and parted away in 2008. The first respondent wife instituted O.P. No. 239/2010 for divorce and also lodged a complaint to the police under Section 498(A) of the Indian Penal Code on 12.01.2010. It was realised that at the time of the husband was as in marriage, working Manager Dhanalakshmi Bank. In that year, a villa was purchased in Palakkad for a sum of Rs.26 Lakhs, which was sold for Rs.31 Lakhs. The loan availed for that purpose was closed and the remaining amount was deposited in the name of father of the ## **MAT.APPEAL NO. 807 OF 2022 4** husband. In the year 2008, a residential apartment of approximately of 16,000 sq.ft was purchased for a value of Rs.35,20,150/- in the joint name of the husband and the wife. The allegation in the divorce petition was that the husband was now employed in Ahmedabad and had married a Gujarati lady, but was not extending any financial help to bring up the child born out of the wedlock. We have been informed that in O.P. No. 239/2010, divorce has been granted by the Family Court, Coimbatore on 10.03.2015. For recovery of the gold ornaments and other amounts, the first respondent/wife preferred O.P. No. 1714/2015, claiming half of the amount of the price of the property purchased in the joint name. The appellant/husband in the aforementioned proceedings, despite having been served along with his parents, remained ex-parte. The Family Court, vide judgment and decree dated 04.10.2018, decreed the aforementioned original petition granting declaration in favour of the respondent-wife that she is entitled to an amount of Rs.17,20,150/- out of the total consideration of Rs.35,20,150/- and also a prohibitory injunction ## **MAT.APPEAL NO. 807 OF 2022 5** was issued to the first respondent therein/husband from receiving the amount from respondents 2 to 4 therein with a further direction to disburse the amount. 2. The aforementioned two applications, one for setting aside the ex-parte judgment and for condonation of delay of 900 days, were preferred by the appellant-husband on the ground that he was not aware of the proceedings as he was employed in Gujarat and the lawyer engaged by him did not inform him about the outcome of the aforementioned proceedings, neither conducted the case. In other words, he was unaware of the posting dates and came to know only in 2021, when a notice was received in an Execution Petition bearing No. 21/2019 and thus, the delay of 900 days occurred. The trial court, on the basis of the evidence brought on record in support of the averments made in the application for setting aside and as well as for the condonation of delay, framed the following issues:- _“1) Whether any sufficient cause is proved by the petitioner to condone the delay of 900 days in_ ## **MAT.APPEAL NO. 807 OF 2022 6** _filing the petition to set aside the exparte decree in O.P. No. 1714/2015?_ _2) Whether the exparte decree passed in O.P. 1714/2015 is liable to be set aside as per the order in I.A. No. 2184/2021.”_ 3. By examining the veracity of the documents and the testimony of the witnesses, the Family Court, Ernakulam dismissed both the applications. It is in this background, the present appeal has been filed. 4. The learned counsel appearing on behalf of the appellant submitted that no doubt the appellant-husband had been remiss in not contesting the petition O.P.No. 1714/2015 seeking refund of the amount, for the reason that he had engaged a lawyer but the lawyer did not inform him and resulted into an ex-parte decree. Relied upon the judgment of the Supreme Court in **Rafiq and Another v. Munshilal and Another [AIR 1981 SC 1400]** , to contend that litigants should not be made to suffer on the lapse of the lawyer. Even the divorce was granted in 2015, at that relevant point of time, O.P.No.1714/2015 was pending **MAT.APPEAL NO. 807 OF 2022 7** consideration and was hopeful of expecting a call from the lawyer to suffer a statement or any other material. At present, the appellant is willing to join the proceedings and tender evidence, subject to any terms and conditions which this court deem it appropriate. 5. On the other hand, learned counsel appearing for the first respondent/wife submitted that it is a wilful attempt and adoption of a dilatory tactics, for husband has been lackadaisical in not conducting the petition. No plausible explanation for seeking condonation of delay of each and every day or a month has been given in the application. It is a common practice among the litigants to put blame on the lawyers. The litigant is also expected to ascertain the information of the pendency of the matter. There was no such exercise of due diligence, therefore, the the trial court had no other ground but to dismiss the application and urged this Court for dismissal of the petition with exemplary cost. ## **MAT.APPEAL NO. 807 OF 2022 8** 6. We have heard the learned counsel appearing for the parties and appraised the paper book. 7. The facts as noticed above, with regard to the marriage, child, and granting of divorce are undisputed. We would not like to delve upon the ownership of the property of which 50% has been ordered, but the said opinion was only prima facie on the basis of the material and documents on record. 8. We cannot ignore the fact that there have been a spate of cases where allegations have been levelled against the Advocates in not divulging the information regarding the pendency of the matter, but that cannot be a ground for setting aside the ex-parte proceedings, for, litigants are expected to exercise due diligence in ascertaining the hearing of the matter. The application seeking condonation of delay as well as setting aside of the ex-parte judgment do not spell out or reflect any effort made in this regard. We are of the view that no useful purpose would be served in allowing the ex-parte decree to **MAT.APPEAL NO. 807 OF 2022 9** sustain when the appellant-husband has approached for contesting the same subject to any terms and conditions. 9. Accordingly, we condone the delay of 900 days, subject to the payment of cost of Rs.25,000/- to the first respondent wife and also set aside the ex-parte judgment, dated 04.10.2018 rendered in O.P. No. 1714/2015, subject to the condition that the appellant-husband deposits 50% of Rs.17,20,150/-, within a period of one month from the date of receipt of a certified copy of this judgment and also furnish security of the balance amount to the satisfaction of the trial court. It is made clear in case of failure on the part of the appellanthusband in making the payment of costs or compliance with the aforesaid directions, this judgment will not be in force and the first respondent-wife will be at liberty to seek the execution of the ex-parte judgment dated 04.10.2018. Since the matter is quite old, if the conditions imposed by this Court are complied with, the trial court shall endeavour to complete the trial within a period of six months from the date of the appearance. **MAT.APPEAL NO. 807 OF 2022 10** This Mat. Appeal stands disposed of. Sd/- **AMIT RAWAL JUDGE Sd/C.S. SUDHA JUDGE** DCS/15.09.2023