O.P. (FC) No. 523 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** **THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 O.P.(FC) NO. 523 OF 2022** **AGAINST THE ORDER DATED 23.03.2022 IN I.A.NO.1 OF 2021 IN O.P.NOs.878 OF 2017, 889 OF 2017, 963 OF 2017 AND M.C.NO.288 OF 2013 OF THE FAMILY COURT,KOZHIKODE** ## **PETITIONERS:** - **1 MUHAMMED SAJEER, AGED 37 YEARS, S/O. ABDURAHIMAN HAJI, SHAFEEQUE MANZIL, AYYAMPAKI, KALLAMPARAM, PERUMUGHAM P.O., KOZHIKODE, PIN – 673631.** - **2 AMINA, AGED 61 YEARS, W/O. ABDURAHIMAN HAJI, SHAFEEQUE MANZIL, AYYAMPAKI, KALLAMPARAM, PERUMUGHAM P.O., KOZHIKODE, PIN – 673631.** - **3 FATHIMA SHAFEEQUE, AGED 35 YEARS, D/O. ABDURAHIMAN HAJI, SHAFEEQUE MANZIL, AYYAMPAKI, KALLAMPARAM, PERUMUGHAM P.O., KOZHIKODE, PIN – 673631.** **BY ADV K.RAKESH** ## **RESPONDENT:** **SUFAINA M.M. AGED 31 YEARS, D/O. HASSAN KUTTY, MALAYIL MARAKKATTIL, VATTAPPARAMBU, CHALIYAM P.O., KOZHIKODE, PIN – 673001. BY ADVS. MUHAMMED SHAFI M T.RASINI** **2** O.P. (FC) No.523 of 2022 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** O.P. (FC) No.523 of 2022 ## **JUDGMENT** ## Ajithkumar, J. The petitioners are the respondents in O.P.No.878 of 2017 and connected cases on the file of the Family Court, Kozhikode. As per the judgment/order dated 12.10.2021, O.P.No.878 of 2017 and connected cases, namely, O.P.Nos.879 & 963 of 2017 and M.C.No.288 of 2017 were allowed ex parte. The petitioners filed I.A.No.1 of 2021 seeking to set aside the said common judgment/order. The Family Court, Kozhikode dismissed I.A.No.1 of 2021 holding that there was no sufficient reason to set aside the ex parte judgment/order. The said order dated 23.03.2022 in I.A.No.1 of 2021 (Ext.P4) is under challenge in this Original Petition filed under Article 227 of the Constitution of India. 2. When the matter was filed, the Registry raised an objection that the impugned order was appealable, in our view, rightly. We have considered the matter on the judicial side and on finding that there occurred a palpable error in entertaining a common interlocutory application for setting **4** ## O.P. (FC) No.523 of 2022 aside judgment/order in four distinct cases, we, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, has directed the Registry to number the Original Petition. 3. On 02.09.2022, notice on admission was directed to be served on the respondent. An interim stay as prayed for was granted for a period of one month. 4. Today, we heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondent. 5. The learned counsel appearing for the petitioners would submit that the reasons stated for dismissing I.A.No.1 of 2021 are untenable and the said order is liable to be set aside. The learned counsel however concedes that it was quite incorrect and not allowed in law to file a single interlocutory application to set aside the judgment/order in four cases. 6. The learned counsel appearing for the respondent would submit that despite ordering payment of maintenance at the rate of Rs.10,000/- from May 2017 onwards, the 1[st] **5** O.P. (FC) No.523 of 2022 petitioner-husband has not hitherto paid any amount and without giving any heed to the order directing payment of monthly maintenance, the petitioners approached this Court. Their intention is to protract the matter and to deny the respondent-wife even the monthly maintenance, which is absolutely necessary for her sustenance. 7. As per the common judgment/order dated 12.10.2021, the Family Court, Kozhikode, allowed O.P.Nos.878, 879 and 963 of 2017 and also M.C.No.288 of 2017. O.P.No.878 of 2017 was filed by the respondent seeking a decree of dissolution of marriage between herself and the 1[st] petitioner. O.P.No.879 of 2017 was filed by the respondent seeking maintenance, which was allowed ordering payment of Rs.10,000/- per month towards monthly maintenance and Rs.3,60,000/- towards past maintenance. O.P.No.963 of 2017 was filed seeking a direction to return gold ornaments and the same was also allowed. M.C.No.288 of 2017 was filed by the respondent seeking monthly maintenance and the claim was allowed ordering the 1[st] petitioner to pay monthly **6** ## O.P. (FC) No.523 of 2022 maintenance at the rate of Rs.10,000/-. All the said judgments/orders were ex parte. It is the said common judgment/order which are sought to be set aside by filing I.A.No.1 of 2021. 8. Cause of action for filing interlocutory application to set aside each of the said judgment/order is distinct, and separate applications was necessary. The Family Court did not consider that aspect while receiving I.A.No.1 of 2021 on file and deciding the same on merits. 9. A learned single Judge of this Court in **Paulochan** ## **v. Noble Enterprises [1987 (2) KLT SN 41 (C.No.58)]** held, “The Kerala Civil Rules of Practice is having the force of law in the matter of regulating procedure of the civil courts, having been made under legislative authority derived from S.122 CPC. R.32 of the said Rules makes it incumbent en the court to return defective plaints, petitions, memorandum of appeal or other proceeding for representation after curing defects or to direct the party or pleader to cure them. Due to many reasons, known or unknown, defects can creep in. Courts are existing for dispensation of justice. R.32 must necessarily have been inserted to see that nobody is **7** O.P. (FC) No.523 of 2022 denied justice on the ground of such defects without giving an opportunity to cure them. It is primarily the duty of the office to point out such defects and the presiding officer will have to give opportunity and the necessary directions. When the Subordinate Judge found that the application was defective in various respects it was his imperative duty to have given an opportunity to cure them. If even after such a direction and opportunity the defects’ were not cured the application could have been dismissed for default without going into the merits. An application which is fatally defective need not and cannot be considered on the merits. Consideration of the prayers on the merits could be had only when the court is able to give a decision on the merits. Otherwise consideration on the merits is likely to prejudice the parties because the ultimate decision could only be dismissal. Such a procedure will also be wastage of time and energy. At any rate non-compliance of the provisions of R.32 of the Civil Rules of Practice is an illegality which has resulted prejudice.” We respectfully endorse the said view. 10. In the light of the aforesaid principle of law, the Family Court, Kozhikode, fell in error in entertaining I.A.No.1 of 2021. That application should have been returned as defective as provided in Rule 32 of the Civil Rules of Practice **8** ## O.P. (FC) No.523 of 2022 Kerala, 1971. When it was considered on merits, there occurred miscarriage of justice and therefore Ext.P4 order is unsustainable in law and liable to be set aside. 10. At the same time, the attitude of the 1[st] petitioner in not making payment of the maintenance despite the order by the Family Court cannot be appreciated. The learned counsel appearing for the respondent would submit that more than Rs.5 lakhs is now due as per the judgment in O.P.No.879 of 2017 as also the order in M.C.No.288 of 2017. We find it just and appropriate to direct the 1[st] petitioner to pay at least a part of the maintenance amount to the respondent as an interim arrangement, since the Family Court would have to consider the matter again in view of the direction in this judgment. 11. Taking the entire facts and circumstances of this case, we are of the view that Ext.P4 order can be set aside on the condition of payment of a part of the maintenance amount due to the respondent. Hence, this Original Petition is allowed as follows: **9** ## O.P. (FC) No.523 of 2022 - (i) Ext.P4 order is set aside on the condition of payment of Rs.4 lakhs to the respondent towards interim maintenance in two instalments; the first instalment of Rs.2 lakhs shall be paid within 15 days from the date of obtaining a certified copy of the judgment and the second instalment of Rs.2 lakhs shall be paid within one month thereafter; - (ii) On payment of the first instalment of Rs.2 lakhs, Ext.P4 will stand set aside; - (iii) On setting aside Ext.P4, the petitioner will be free to file separate interlocutory applications in O.P.Nos.878, 879 and 963 of 2017 and also M.C.No.288 of 2017; and - (iv) The Family Court, Kozhikode, will thereupon consider the said applications and pass appropriate orders in accordance with law. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** ## **Sd/P.G. AJITHKUMAR, JUDGE** dkr **10** O.P. (FC) No.523 of 2022 ## **APPENDIX OF OP (FC) 523/2022** |**PETITIONER**|**EXHIBITS**| |---|---| |**Exhibit P1**|**A TRUE COPY OF THE EX-PARTE COMMON**| ||**JUDGMENT IN O.P.NO.878/2017 AND**| ||**CONNECTED CASES PASSED BY THE FAMILY**| ||**COURT, KOZHIKODE ON 12-10-2021**| |**Exhibit P2**|**A TRUE COPY OF I.A.NO.1/2021 FILED IN**| ||**O.P.NO.878/2017 AND CONNECTED CASES**| ||**DATED 18-10-2021 OF THE FAMILY COURT,**| ||**KOZHIKKODE**| |**Exhibit P3**|**A TRUE COPY OF THE COUNTER AFFIDAVIT**| ||**DATED 16-11-2021 SUBMITTED BY THE**| ||**RESPONDENT AS AGAINST EXHIBIT P2**| |**Exhibit P4**|**A TRUE COPY OF THE ORDER DATED 23-3-**| ||**2022**<br>**IN**<br>**I.A.NO.1/2021**<br>**IN**| ||**O.P.NO.878/2017 AND CONNECTED CASES**|