Mat.Appeal Nos.654 ad 655 of 2022

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944 MAT.APPEAL NO. 654 OF 2022** **AGAINST THE ORDER DATED 14.01.2022 IN R.P.NO.544 OF 2019 IN O.P.NO.294 OF 2016 ON THE FILE OF THE FAMILY COURT, MAVELIKKARA** ## **APPELLANT:** **SUDEVAN PILLAI AGED 49 YEARS, S/O. R.NARAYANAN UNNITHAN, PERUMPALLIL VEEDU, MULAVANA PO, MULAVANA VILLAGE, KOLLAM-691503.** **BY ADV M.RAJESH** ## **RESPONDENT:** **DEEPA S. PILLAI, AGED 33 YEARS, D/O. SUMANGALI DEVI, SUMANGALI NIVAS, VEDARAPLAVU P.O., CHARUMMOODU, THAMARAKKULAM VILLAGE, ALAPPUZHA-690505. BY ADVS. S.SHANAVAS KHAN SHAHUL HAMEED S.INDU** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 09.01.2023, ALONG WITH Mat.Appeal.655/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.Appeal Nos.654 ad 655 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 9[TH] DAY OF JANUARY 2023 / 19TH POUSHA, 1944 MAT.APPEAL NO. 655 OF 2022** **AGAINST THE ORDER DATED 14.01.2022 IN R.P.NO.542 OF 2019 IN O.P.NO.15 OF 2016 ON THE FILE OF THE FAMILY COURT, MAVELIKKARA** ## **APPELLANT:** **SUDEVAN PILLAI** **AGED 55 YEARS, S/O. R.NARAYANAN UNNITHAN, PERUMPALLIL VEEDU, MULAVANA P.O., MULAVANA VILLAGE, KOLLAM-691503.** **BY ADV M.RAJESH** ## **RESPONDENT:** **DEEPA S PILLAI** **AGED 39 YEARS, D/O. SUMANGALI DEVI, VEDARAPLAVU P.O., CHARUMMOODU, THAMARAKKULAM VILLAGE, ALAPPUZHA (DIST.)- 690505.** **BY ADVS. S.SHANAVAS KHAN SHAHUL HAMEED S.INDU** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 09.01.2023, ALONG WITH Mat.Appeal.654/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal Nos.654 ad 655 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The respondent in O.P.Nos.15 of 2016 and 294 of 2016 before the Family Court, Mavelikkara is the appellant. Those original petitions were filed by the respondent-wife. O.P.No.15 of 2016 was filed for realisation of money and return of gold ornaments. O.P.No.294 of 2016 was filed by the respondent seeking dissolution of marriage. Both original petitions were decreed exparte on 06.02.2019. The respondents filed R.P.No.542 of 2019 in O.P.No.15 of 2016 and R.P.No.544 of 2019 in O.P.No.294 of 2016 seeking to set aside the respective exparte decrees. As per the common order dated 14.01.2022, the Family Court, Mavelikkara dismissed both those petitions. The appellant challenges correctness and legality of the said common order in these appeals filed under Section 19(1) of the Family Courts Act, 1984. 2. After condoning the delay, these appeals were admitted. 4 Mat.Appeal Nos.654 ad 655 of 2022 3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 4. The appellant contended that he had a fall inside his house on 12.01.2019 compelling him to undergo ayurvedic treatment. His knee bone was dislocated and was suffering from acute pain. Therefore, he was not able to appear before the court, resulting in decreeing O.P.Nos.15 of 2016 and 294 of 2016 exparte. 5. The said contention was denied by the respondent. Her contention was that on earlier occasions when these original petitions were posted for evidence, namely, 23.01.2019, 30.01.2019 and 05.02.2019 also the appellant did not appear before the court. The contention that the appellant fell down and had to undergo treatment was denied by the respondent. 6. The appellant gave evidence as PW1 and stated regarding his inability to appear before the court when it was taken up for evidence. He produced Ext.A1 stating to be a 5 Mat.Appeal Nos.654 ad 655 of 2022 medical certificate issued from Kottakkal Aryavaidyasala, Anandavalleswaram Branch. The respondent deposed before the court denying the contentions of the appellant. 7. The Family Court, after considering depositions of both parties, held that in the absence of any evidence to prove contents of Ext.A1, the case put forward by the appellant could not be believed. The R.Ps. were accordingly dismissed. The Family Court also had taken note of the fact that the respondent remarried after the statutory period from the date of grant of the decree of divorce and therefore setting aside the decree of dissolution of marriage without sufficient cause will cause prejudice to the petitioner. 8. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , a Division Bench of this Court held that, on an application filed under Order IX, Rule 13 of the Code of Civil Procedure, the Court has to find out whether the erring party has made out sufficient cause for setting aside the ex parte decree. When no negligence or inaction is imputable to the erring party and the absence was not mala 6 Mat.Appeal Nos.654 ad 655 of 2022 fide or intentional, the discretion has to be exercised in his favour, especially when the application is within the statutory time limit. In appropriate cases, the plaintiff can be compensated by adequate costs for the loss of time and the inconvenience caused to him. But any such condition shall not be too onerous. 9. In the light of the law laid down in the aforesaid decision, the petition to set aside exparte decree filed in time is liable to be allowed ordinarily. Here, the evidence let in by the appellant is insufficient to prove that he really was prevented from appearing before the court when the original petitions were posted for evidence. Although the original petitions were posted repeatedly, the appellant or his counsel did not appear before the Family Court. It was in such circumstances, the exparte decrees were passed on 06.02.2019. The observation of the Family Court that the respondent contracted a second marriage, after waiting for the statutory period of appeal, is certainly a relevant consideration. For the fault of the appellant, the respondent 7 Mat.Appeal Nos.654 ad 655 of 2022 cannot be put to peril. If there was total disability for the appellant to appear before the Family Court while the petition for divorce, O.P.No.294 of 2016 was taken up for consideration, the exparte decree could have been set aside. Here the appellant did not prove that there was sufficient cause for his non-appearance. 10. In the said circumstances, on taking into account the insufficiency of cause for non-appearance and also the prejudice that would be caused to the respondent in the event of setting aside the exparte decree in O.P.No.294 of 2016, we are of the view that the order of the Family Court in R.P.No.544 of 2019 is not liable to be interfered with. 11. However, in O.P.No.15 of 2016 the decree is one for return of gold ornaments and money. It is seen that the decree was passed without considering the evidence in detail. Sufficient evidence was not seen let in in support of the claim in O.P.No.15 of 2016. In such circumstances, even though the cause shown by the appellant is not sufficient, we are of the view that in the interest of justice, the decree 8 Mat.Appeal Nos.654 ad 655 of 2022 dated 06.02.2019 in O.P.No.15 of 2016 is liable to be set aside. 12. Hence, we allow Mat.Appeal No.655 of 2022 and the order dated 14.01.2022 in R.P.No.542 of 2019 in O.P.No.15 of 2016 is set aside. The Family Court, Mavelikkara will restore O.P.No.15 of 2016 to file and proceed with it in accordance with law. Mat.Appeal No.654 of 2022 is dismissed. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr