Muhammed Shafi v. Raihanath

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` WEDNESDAY, THE 29[TH] DAY OF MARCH 2023 / 8TH CHAITHRA, 1945 MAT.APPEAL NO.187 OF 2023 ``` ``` AGAINST THE ORDER DATED 12.01.2023 IN I.A.NO.2629 OF 2019 IN O.P.NO.706 OF 2013 OF FAMILY COURT, OTTAPPALAM APPELLANT/1[ST] RESPONDENT: ``` ``` MUHAMMED SHAFI AGED 31 YEARS S/O HYDRU, RESIDING AT THEKKINKATTIL VEETTIL, KIZHAKKE OTTAPALAM, OTTAPALAM TALUK, PALAKKAD DISTRICT-, PIN - 679101 BY ADVS. T.C.SURESH MENON B.DEEPAK ``` ## **`RESPONDENT/PETITIONER:`** ``` RAIHANATH AGED 26 YEARS D/O HAMSA, RESIDING AT THOTTINGAL VEETTIL, KUTTIKKODE COLONYIL, CHUDUVALATHOOR AMSOM, DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT-, PIN - 679101 BY ADVS. C.M.MOHAMMED IQUABAL P.ABDUL NISHAD ISTINAF ABDULLAH MUHAMMED AMEEN ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Mat.Appeal No.187 of 2023 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant is the 1[st] respondent in O.P.No.706 of 2013 on the file of the Family Court, Ottapalam, which was one filed by the respondent herein-wife, seeking an order for the return of gold ornaments, maintenance and for other reliefs. On receipt of the notice, the appellant entered appearance and filed counter. Initially, the Family Court passed an order granting interim maintenance to the respondent-wife and two children. Later, on an application filed by the respondent-wife, the defence of the appellant was struck off for non-payment of maintenance, as ordered by the Family Court. Thereafter, the original petition was allowed by the judgment and decree of the Family Court dated 11.02.2016, which was under challenge before this Court in Mat.Appeal No.598 of 2016, filed under Section 19(1) of the Family Courts Act, 1984. That appeal was allowed, by directing the appellant-husband to deposit an amount of Rs.1,80,000/before the Family Court. Thereafter, the original petition was listed before the Family Court on 29.07.2019 and 02.08.2019 for cross-examination of the respondent-wife. The matter was adjourned due to the inconvenience of the learned counsel for the appellant. The application filed by the appellant-husband to Mat.Appeal No.187 of 2023 3 reopen the evidence was allowed on payment of cost. Thereafter, the case was posted for cross examination, on 26.09.2019 and 04.10.2019. According to the appellant, since he was suffering from Dengue fever and varicose vein, he could not instruct his counsel appropriately. On 04.10.2019, the learned counsel for the appellant reported no instructions. Therefore, the appellant was set _ex parte_ and thereafter, an _ex parte_ decree was passed on 31.10.2019, by allowing the original petition. The appellanthusband filed I.A.No.2629 of 2019 was filed by the appellant to set aside the _ex parte_ decree and that application was allowed by the order dated 12.01.2023, on condition that the appellant shall deposit 50% of the arrears of maintenance. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act. The appeal is filed along with C.M.Appl.No.1 of 2023, an application seeking an order to condone the filing delay of 7 days, which was condoned by the order dated 24.03.2023. 2. Heard the learned counsel for the appellant-husband and also the learned counsel for the respondent-wife. 3. The learned counsel for the appellant-husband would point out that, when an application filed by the appellant, invoking the provisions under Order IX Rule 13 of the Code of Mat.Appeal No.187 of 2023 4 Civil Procedure, 1908, was one filed within the period of limitation, the Family Court ought to have allowed that interlocutory application without imposing a condition, in view of the law laid down by this Court in **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** . 4. On the other hand, the learned counsel for the respondent-wife would contend that, since the appellanthusband defaulted payment of maintenance to the respondentwife and the two minor children aged 13 and 6 years respectively, the Family Court cannot be found fault with, in imposing such a condition while allowing an application filed under Order IX, Rule 13 of the Code of Civil Procedure Code, to set aside an _ex parte_ decree. 5. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside of _ex parte_ decree against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed _ex parte_ against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms Mat.Appeal No.187 of 2023 5 as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. As per the first proviso to sub-rule (1), where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also. As per the second proviso to sub-rule (1), no court shall set aside a decree passed _ex parte_ merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. As per the Explanation, where there has been an appeal against a decree passed _ex parte_ under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that _ex parte_ decree. 6. In **G.P. Srivastava v. R.K. Raizada [(2000) 3 SCC 54]** in the context of an application filed under Order IX, Rule 13 of the Code, for setting aside an _ex parte_ decree, the Apex Court held that, the word ‘was prevented by any sufficient cause from appearing’ occurring in Order IX, Rule 13 of the Code must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction Mat.Appeal No.187 of 2023 6 is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 of the Code has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 7. In **G.P. Srivastava [(2000) 3 SCC 54]** , the Apex Court held further that, ‘sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding _ex parte_ and cannot be stretched to rely upon other circumstances anterior in time. If ‘sufficient cause’ is made out for non-appearance of the defendant on the date fixed for hearing when _ex parte_ proceedings initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the _lis_ decided on merits. 8. In **Peeves Enterprises v. Muhammed Ashraf [2015 (3) KHC 981]** , relying on the law laid down by the Apex Mat.Appeal No.187 of 2023 7 Court in **G.P. Srivastava [(2000) 3 SCC 54]** , 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 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. As held by this Court in In **Peeves Enterprises [2015 (3) KHC 981]** , when the application under Order IX, Rule 13 of the Code of Civil Procedure is one filed within the period of limitation, the discretion has to be exercised in favour of the defendant, when no negligence or inaction is imputable to the defendant and his absence was not mala fide or intentional. In the instant case, the original petition filed by the respondent-wife is pending before the Family Court for nearly 10 years. On account of the default on the part of the appellant-husband in payment of interim maintenance to the wife and two minor children, his defense was struck off. The said order of the Family Mat.Appeal No.187 of 2023 8 Court was followed by the judgment and decree dated 11.02.2016 of the Family Court in O.P.No.706 of 2013. That judgment and decree was under challenge before this Court in Mat.Appeal No.598 of 2016, which was allowed by the judgment dated 11.07.2018 by setting aside the order dated 11.02.2016 of the Family Court in I.A.No.123 of 2016 and also the judgment and decree dated 11.02.2016 in O.P.No.706 of 2013 on condition that the appellant-husband shall deposit Rs.1,80,000/- before the Family Court within one month from the date of that judgment, towards the maintenance of his wife and children. Thereafter, that original petition was listed before the Family Court on 29.07.2019 and 02.08.2019 for cross examination of the respondent herein-wife. Due to inconvenience of the learned counsel for the appellant, the matter was adjourned. Thereafter the evidence was closed on 02.08.2019. I.A.No.1710 of 2019 was filed to re-open the evidence, which was allowed on payment of a cost of Rs.750/-. Though the case was posted for cross examination on 26.09.2019 and 04.10.2019, the counsel for the appellant-husband reported no instructions and therefore, he was set ex-parte on 04.10.2019 and an ex-parte decree was passed on 31.10.2019. Taking note of the above aspects, the Family Court, while allowing I.A.No.2629 of 2019 by the order Mat.Appeal No.187 of 2023 9 dated 12.01.2023, directed the appellant to pay 25% of the arrears of maintenance (both past and future) on or before 09.02.2023 and the remaining 25% on or before 09.03.2023, as a condition for setting aside the ex-parte decree. 10. Viewed in the light of the law laid down in the decisions referred to supra, we are of the considered opinion that the condition imposed by the Family Court for setting aside the exparte decree dated 31.10.2019 in O.P.No.706 of 2013 is too onerous. For the delay caused on account of the causal approach of the appellant-husband in defending O.P.No.706 of 2013, the respondent-wife can be compensated by payment of adequate costs. 11. In such circumstances, this appeal is allowed by setting aside the order dated 12.01.2023 in I.A.No.2629 of 2019 in O.P.No.706 of 2013, on payment of a sum of Rs.1,00,000/- to the respondent-wife, within a period of four weeks from the date of receipt of a certified copy of this judgment. On such payment being made, a sum of Rs.25,000/- shall be adjusted towards cost and the balance amount of Rs.75,000/- towards the maintenance payable to the wife and two minor children, and I.A.No.2629 of 2019 will stand allowed thereby setting aside the ex-parte decree and restoring O.P.No.706 of 2013 to file, and the Family Court Mat.Appeal No.187 of 2023 10 shall finally dispose of the said original petition, as expeditiously as possible, at any rate, within a further period of two months. In case of any default on the part of the appellant-husband in complying with the condition stipulated hereinbefore, within the aforesaid time limit, I.A.No.2629 of 2019 will stand dismissed. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd**