Biju Menon v. Priya Eapen and others (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
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 Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Rafiq and Another v. Munshilal and Another | AIR 1981 SC 1400 | Positive | Court relies on the principle that litigants should not suffer due to counsel’s lapse, supporting condonation of delay. |
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