IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941
Mat.Appeal.No.725 OF 2018
AGAINST THE ORDER/JUDGMENT IN OP 856/2012 DATED 25-01-2018 OF FAMILY COURT, THIRUVALLA
## APPELLANT/S:
1 DILEEP KUMAR S/O. LATE SASIDHARAN NAIR, AGED 53 YEARS, RESIDING AT DEEPA BHAVANAM, KADAYANIKKADU P.O., VELLAVOOR VILLAGE, CHANGANASSERRY TALUK, KOTTAYAM DISTRICT.
2 RATNAKUMARIYAMMA
W/O. LATE SASIDHARAN NAIR, AGED 61 YEARS, RESIDING AT DEEPA BHAVANAM, KADAYANIKKADU P.O., VELLAVOOR VILLAGE, CHANGANASSERRY TALUK, KOTTAYAM DISTRICT.
BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH
## RESPONDENT/S:
M.K.MANJU AGED 30 YEARS, D/O. MURALEEDHARAN, RESIDING AT KIZHAKKEVEETTIL HOUSE, VALANJAVATTOM P.O., KADAPRA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA.
R1 BY ADV. GIREESH VARMA R. R1 BY ADV. NANDAKUMAR V.K
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
## **Dated this the 30th day of October 2019**
## K. HARILAL,J.
The appellants herein, who are the respondents 1 and 3 in O.P. No. 856 of 2012 on the files of the Family Court, Thiruvalla, are confronting with an ex parte decree passed against them. The first appellant is the son of the second appellant. The respondent herein has obtained the ex parte decree on 12.09.2014 directing the appellants to return the money and gold ornaments to her. Aggrieved by the same, they have filed I.A. No. 1346 of 2016 to set aside the ex parte decree and I.A. No. 1345 of 2016 to condone the delay in filing I.A. No. 1346 of 2016. As per the averments in the petition to condone the delay, they came to know about the ex parte decree only on 12.10.2016 when she received the copy of the EP filed on the basis of the ex parte decree. The 2[nd] appellant has filed an affidavit explaining the cause of delay by stating that her husband fell ill and was undergoing treatment and he died on 23.10.2014 and therefore, she could not reach the office of her counsel and to contest the case on merits. She got distressed and was not in a mental condition to face all those problems occurred in her life. It was also alleged that the first appellant was suffering
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from psychological disorder. The husband of the second appellant was also suffering from cardiac problems, for the last several years.
2. The respondent herein resisted the said application contending that there is no bona fides in the cause of delay stated in the affidavit. The first appellant is not suffering from any kind of mental disorder. According to them, both the appellants were well aware of the passing of the ex parte decree against them and they got information immediately after the passing of the ex parte order. Though they made an application to set aside the ex parte order subsequently they abandoned the proceedings and caused the passing of ex parte decree against them. The father of the first appellant died on 23.10.2014 i.e., after the passing of the ex parte decree against them. Therefore, the cause of delay averred in the petition are absolutely false. It cannot be connected with the death of her husband.
3. On the aforesaid contentions, the second appellant was examined as PW1and five documents were marked in evidence. No evidence was adduced by the respondent. After considering the evidence on record, in the light of the averments in the I.A., the Family Court dismissed the application to condone the delay on a finding that the averments in the petition are absolutely false and
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without any bona fides and the evidence on record would show that she came to know about the ex parte order on 25.06.2014. The legality and correctness of the aforesaid findings are challenged in this appeal.
4. Heard the learned counsel for the appellants and the
learned counsel for the respondent.
5. It is not disputed that the ex parte decree was passed on 12.09.2014. On 11.06.2014, all the appellants were absent and they were not even represented by the counsel. Therefore, they were set ex parte and the case was posted to 25.06.2014 for ex parte evidence. On 25.06.2014, the first appellant filed a petition along with an affidavit to set aside the ex parte order against them. Thereafter, they had neither appeared before the court nor were they represented by the counsel in that proceedings to set aside the ex parte order. Eventhough the OP was posted to 16.07.2014, on that day also, there was no representation on the side of the respondent. Thereafter, the case was adjourned to 23.07.2014 and on that day, the case was again adjourned to 01.08.2014 for hearing. On all those days, there was no representation for the appellants herein. In fact, ex parte decree was passed on 12.09.2014 only. The sequence of events stated above would show
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that they came to know about the ex parte order and filed the petition to set aside the ex parte order, fourteen days after the passing of the ex parte order. In view of the sequence of events, it cannot be believed that they came to know about the ex parte decree on 12.10.2016 only i.e., after 746 days, when they got notice in EP on 12.10.2016. Even if they came to know about the ex parte decree on 12.10.2016, when they got notice in EP, it can safely be concluded that after the filing of the petition to set aside the ex parte order on 25.06.2014, the appellants were negligent in making an enquiry about the fate of the proceedings for a long period of more than two years and it cannot be excused, at any point of view.
6. As regards the other grounds, we find that the Family Court meticulously examined the contention that the first appellant was undergoing treatment for mental disorder and the husband of the second appellant was undergoing treatment for an acute cardiac problem and she had to nurse both of them and therefore, she could not enquire about the case. The appellants have produced Exts.A1 to A3. Ext.A1 shows that one Dileep Kumar was a patient undergoing treatment for the disorder in connection with the alcoholic consumption and for the injuries suffered by him in the road traffic accident. It is pertinent to note that the address of the
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said Dileep Kumar is not shown in Ext.A1. So, it cannot be held beyond doubt that the first appellant is the Dileep Kumar mentioned in Ext.A1. More importantly, the doctor, who treated the said Dileep Kumar, was not examined in evidence, when the address of the said Dileep Kumar is not stated in Ext.A1. Unless the doctor is examined in evidence, no reliance can be placed on Ext.A1. Even if Ext.A1 is admitted at its entirety, it would show that the person, who was undergoing treatment under Ext.A1, was suffering from disorder in connection with alcoholic consumption and injuries suffered by him in a road traffic accident. Ext.A2 is the presentation slip dated 02.03.2012 for the head injuries suffered by the person in it. So, it can never be believed that the second appellant could not make any enquiry as regards the progress of his case due to the mental agony caused by the treatment of the fist appellant. As rightly observed by the Family Court, had he been suffering from such a great mental disorder, he could not have represented himself in the suit. On the other hand, he could have been represented by the court guardian. Coming to the mental agony caused by the heart disease of the husband, it has come out in evidence that the husband died on 23.10.2014 i.e., one month and 9 days after the passing of the ex parte decree. There is no evidence to show that he was
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undergoing treatment for cardiac problem as alleged and he died in consequence of that cardiac problem. Therefore, the case of the 2[nd] appellant that she could not make any enquiry about her case due to the mental agony caused by the heart disease of the husband could never be swallowed without a pinch of salt. Thus, the evidence
on record produced by the appellants themselves disproved the cause of delay alleged in the petition to condone the delay of 746 days. It follows that the explanation to cause of delay is concocted and the grounds urged in the application are fanciful and lack bona fides.
7. In the matter of condoning the delay, a liberal view is the general rule with certain exceptions. In Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [2013(12) SCC 649], the Supreme Court has laid down certain guidelines in the matter of condoning the delay with certain exceptions, which reads thus:
“The lack of _bona fides_ imputable to a party seeking condonation of delay is a significant and relevant fact. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. It is to be borne in mind that no-one gets away with fraud, misrepesentation or interpolation by taking recourse to the technicalities of law of limitation. The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.”
8. When applying the principles laid down in the aforesaid
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decision to the instant case, we find that the explanation to the cause of delay would fall under the exceptions to the general rule. Therefore, we do not find any reason to interfere with the impugned order under challenge. Hence, this appeal is dismissed.
sd/- K. HARILAL, JUDGE.
sd/- ANNIE JOHN, JUDGE.
Rv
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