Prakash Kamapalan v Priya

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023/10TH KARTHIKA, 1945 ``` ``` MAT.APPEAL NO.353OF 2015 ``` ``` AGAINST THE COMMON ORDER DATED 19.02.2015 IN I.A.NO.2124 OF 2012 & I.A.NO.2125 OF 2012 IN OS.NO.245 OF 2007 OF THE FAMILY COURT, KOLLAM ``` ## **`APPELLANT/DEFENDANT:`** ``` PRAKASH KAMAPALAN, AGED 51 YEARS S/O.LATE KAMAPALAN, P.K.BHAVAN, VALATHUNGALCHERRY, ERAVIPURAM VILLAGE, KOLLAM DISTRICT, KERALA STATE, INDIA NOW RESIDING AT 20- WELLINGTON ROAD, CROYDON, CRO 2SH, LONDON U.K REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SURENDRA BABU, S/O.GANGADHARAN, KRISHNA KRIPA, KALAKKODU P.O, POOTHAKULAM, PARAVOOR, KOLLAM DISTRICT, KERALA STATE, 691 302. ``` ## **`BY ADV SRI.BIJU ABRAHAM`** ## **`RESPONDENT/PETITIONER:`** ``` PRIYA, D/O.PRAKASH, NALANDA, MYLAKKAD, THAZHUTHALA VILLAGE, KOLLAM NOW RESIDING AT 114 PENDEVON ROAD, WEST CROY DON, CRO 3 QP, SURREY, LONDON, UNITED KINGDOM REPRESENTED BY HER POWER OF ATTORNEY HOLDER SHOBHANA, AGED ABOUT 57 YEARS, CHARUVILA VEEDU (NALANDA) MYLAKKAD P.O, THAZHUTHALA, KOLLAM. ``` ``` BY ADV SRI.ABDUL JALEEL.A ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 1.11.2023, ALONG WITH MAT.APPEAL.406 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` Mat.Appeal Nos.353 and 406 of 2015 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` WEDNESDAY, THE 1[ST] DAY OF NOVEMBER 2023/10TH KARTHIKA, 1945 MAT.APPEAL NO. 406 OF 2015 ``` ``` OS NO.245 OF 2007 OF THE FAMILY COURT, KOLLAM ``` ``` APPELLANT/DEFENDANT: ``` ``` PRAKASH KAMAPALAN, AGED 51 YEARS S/O.LATE KAMAPALAN, P.K.BHAVAN, VALATHUNGALCHERRY, ERAVIPURAM VILLAGE, KOLLAM DISTRICT, KERALA STATE, INDIA, NOW RESIDING AT 20-WELLINGTON ROAD, CROYDON, CRO 2SH, LONDON U.K., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SURENDRA BABU, S/O.GANGADHARAN, AGED 59 YEARS, KRISHNA KRIPA, KALAKKODU P.O., POOTHAKULAM, PARAVOOR, KOLLAM DISTRICT, KERALA STATE, INDIA - 691 302. ``` ``` BY ADV SRI.BIJU ABRAHAM ``` ## **`RESPONDENT/PETITIONER:`** ``` PRIYA, D/O.PRAKASH, NALANDA, MYLAKKAD, THAZHUTHALA VILLAGE, KOLLAM, NOW RESIDING AT 114, PENDEVON ROAD, WEST CROY DON, CRO 3 QP, SURREY, LONDON, UNITED KINGDOM, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SHOBHANA, AGED ABOUT 57 YEARS, CHARUVILA VEEDU (NALANDA), MYLAKKAD P.O., THAZHUTHALA, KOLLAM. ``` ``` BY ADVS. SRI.ABDUL JALEEL.A SMT.M.A.SULFIA ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2023, ALONG WITH MAT.APPEAL.353 of 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` Mat.Appeal Nos.353 and 406 of 2015 ## **JUDGMENT** ## **Anil K. Narendran, J.** These appeals arise out of O.S No.245 of 2007 on the file of the Family Court, Kollam, which was one filed by the respondent-daughter against the appellant-father, for realisation of Rs.10,00,000/- towards her marriage expenses and in default, allow her to realise the same from the plaint schedule property and by personally proceeding against the appellant. In that suit, though the defendant entered appearance, he did not file a written statement. Therefore, the defendant was set _ex-parte_ . Thereafter, the Family Court decreed the suit _ex-parte_ by the judgment and decree dated 30.01.2008. Paragraphs 3, 4 and also the operative portion of the judgment, read thus; “3. Defendant entered appearance but did not file written statement. He is set _ex parte_ . 4. Plaintiff through the Power of Attorney Holder filed an affidavit. The Power of attorney is marked as Ext.A1 Through the affidavit of the power of attorney holder of the plaintiff plaint averments are proved. The affidavit would show that the power of attorney holder has present knowledge about the averments in the affidavit. Hence the plaintiff is entitled to a decree as prayed for. In the result, suit is decreed directing the defendant to ``` 4 ``` Mat.Appeal Nos.353 and 406 of 2015 pay to the plaintiff Rs.10 lakhs towards her marriage expenses, in default plaintiff is allowed to realise the same from the scheduled property and personally from the defendant. The parties shall bear their respective costs.” 2. The appellant-father filed I.A.No.2124 of 2012, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside the _ex-parte_ decree passed in O.S No.245 of 2007. That application was accompanied by I.A. No.2125 of 2012, filed under Section 5 of the Limitation Act to condone the delay of 4 years, 6 months and 24 days in filing the former application. Those applications ended in dismissal by a common order dated 19.02.2015. Paragraphs 9, 10 and also the operative portion of that order, read thus; “9. Original defendant gave evidence as PW1. He would depose that he has not entrusted anybody to file petition before the court. In page No.4 of the deposition, he would depose that “ഈ കേസ് നട്ᩈാൻ ഞാനാരെയ ും അധിോെരെട ്ᩈിയി്ᨾി്ᩤ. ആരെരയ്ഝില ും case നട്ᩈാനായി അധിോെ പത്ര്ങൾ ഏൽെി്ചിെ കനാ ? ഇ്ᩤ. Indian Embassy - യിൽ വ്ച് ഒെി്ᨾ യാരരാെ കപെറ ും ഈ കേസിന കവ്ᩂി ഞാനയ്ചി്ᨾി്ᩤ . Further, in page No.5 it is stated that O.S.No.245/07 കേസ് നട്ᩈ നരിന് ഞാനാരെയ ും അധിോെരെട ്ᩈിയി്ᨾി്ᩤ. ഈ കേസ് നട്ᩈാന ്ᩦ അധിോെപത്രും Indian Embassy - യിൽ രോ്ᩂ കപാേ േകയാ ഒെിട േകയാ രെയ്തി്ᨾി്ᩤക്ᩤാ ? ഇ്ᩤ. (A). “On a perusal of the deposition of PW1 it is seen that he has no knowledge regarding the power of attorney produced ``` 5 ``` Mat.Appeal Nos.353 and 406 of 2015 along with I.A.2124/12. He admitted that in the first and fourth pages of the power of attorney notary or solicit or was not affixed his signature. He also admitted that അ്ᨸാമ്തെ പേജിൽ താ്തെ അവസാനമായി കാണു്ᩐ ഒ്ᩔ് Notary Public രെരായിെിക് ും. ഒെി്ᨾ ആൾ ആരെന് രിെി്ചറിയാന ്ᩦ identity എഴ രിയി്ᨾി്ᩤ. 10. On a perusal of Ext.A1 power of attorney it is seen that the power of attorney holder has not properly attested the Power of Attorney and the signature of Prakash Kamapalan differs from page to page. He also admitted that fact during cross-examination. Except the 5[th] page of Ext.A1, the other pages were not signed by the notary or solicitor. In the last page, the signature of the executant is seen cancelled but not attested by anybody. It is also seen that the name of the 2[nd] witness is also cancelled and was not attested by the executant or the notary. Another name was shown as 2[nd] attester, but he has not affixed his signature. It is seen that Ext.A1 was attested by somebody on 2.8.2012. But the signature does not have any name or office. On a reading of the testimony of PW1, it is clear that he has no definite knowledge regarding the execution of Ext.A1 power of attorney. From the available evidence it is seen that Ext.A1 power of attorney, is a document which cannot be accepted in evidence. Moreover there is a delay of 54 months and 24 days which was not properly explained by the petitioner. From the available evidence this court finds that both the petitions are devoid of merits and are only to be dismissed. Point found accordingly. In the result, both petitions are dismissed. No costs.” 3. The appellant-father filed Mat. Appeal No.353 of ``` 6 ``` Mat.Appeal Nos.353 and 406 of 2015 2015 against the common order dated 19.02.2015 in I.A No.2124 of 2012 in O.S No.245 of 2007, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. The said appeal was filed on 07.04.2015. On 08.04.2015, when that appeal came up for admission, this Court issued notice to the respondent. In I.A.No.1463 of 2015, this Court granted an interim stay of the execution of the _ex-parte_ decree in O.S.No.245 of 2007 of the Family Court, Kollam, for a period of two months. The said interim order, which was extended from time to time, was extended until further orders on 08.12.2015. 4. After the filing of Mat. Appeal No.353 of 2015, the appellant filed Mat. Appeal No.406 of 2015, challenging the _exparte_ judgment and decree dated 30.01.2008 in O.S No.245 of 2007. That appeal was filed on 20.05.2015, along with C.M. Application No.1443 of 2015, for condonation of the filing delay of 2635 days. In that application, the delay was calculated from the date of the _ex-parte_ judgment and decree. In C.M. Application No.1443 of 2015, the respondent-daughter filed a detailed counter affidavit dated 14.07.2015, opposing the relief sought for. By a separate order dated this date, C.M. Application No.1443 of 2015 in Mat. Appeal No.406 of 2015 was allowed, `7` Mat.Appeal Nos.353 and 406 of 2015 condoning the delay in filing that appeal, taking note of Mat. Appeal No.353 of 2015, which was one filed within the period of limitation, in which this Court has already granted an interim stay against the execution of the _ex-parte_ decree in O.S.No.245 of 2007. 5. Heard the learned counsel for the appellant-father and also the learned counsel for the respondent-daughter. 6. In **Breen v. Amalgamated Engineering Union [(1971) 1 All. E.R. 1148]** Lord Denning, M.R. Observed that the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to the denial of justice. Reasons are live links - between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. 7. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing** ## **Director, United Commercial Bank v. P.C. Kakkar [(2003)** **4 SCC 364]** held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by `8` Mat.Appeal Nos.353 and 406 of 2015 its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. The right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, speaking out. The 'inscrutable face of a sphinx' is ordinarily incongruous with a judicial or quasijudicial performance. 8. A Constitution Bench of the Apex Court has laid down in **Krishna Swami v. Union of India [(1992) 4 SCC 605]** that undoubtedly, in a parliamentary democracy governed by rule of law, any action, decision or order of any statutory/public authority/ functionary must be founded upon reasons stated in the order or staring from the record. Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and ``` 9 ``` Mat.Appeal Nos.353 and 406 of 2015 unjust, violating Article 14 or unfair procedure offending Article 21 of the Constitution of India. 9. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 10. In the instant case, the Family Court decreed O.S No.245 of 2007 _ex-parte_ , by the judgment dated 30.01.2008, even without adverting to the averments in the proof affidavit ``` 10 ``` Mat.Appeal Nos.353 and 406 of 2015 filed on behalf of the plaintiff, which was one sworn to by her power of attorney holder. The averments in the said proof affidavit, as to the personal knowledge of the power of attorney holder, about the plaint averments, are also not adverted to in the impugned judgment, before passing an _ex-parte_ decree directing the appellant-father to pay a sum of Rs.10 Lakhs to the respondent-daughter towards her marriage expenses. Viewed in the light of the law laid down in the decisions referred to supra, the impugned _ex-parte_ judgment of the Family Court, which is one rendered without considering the aforesaid aspects, cannot be sustained in law. 11. A reading of the common order dated 19.02.2015 of the Family Court in I.A.No.2124 of 2012, the application to set aside the _ex-parte_ decree and I.A.No.2125 of 2012, the application for condonation of delay, would show that those applications were dismissed on the ground that there are certain defects in the power of attorney produced and that the delay in filing that application was not properly explained. During the course of arguments, on a query made by this Court, the learned counsel on both sides would submit that the appellant-father and the respondent-daughter are settled in UK. `11` Mat.Appeal Nos.353 and 406 of 2015 12. Since, this Court has already held that the _ex-parte_ judgment dated 30.01.2008 of the Family Court in O.S No.245 of 2007, which is under challenge in Mat. Appeal No.406 of 2015, is one rendered even without adverting to the averments on the proof affidavit filed on behalf of the plaintiff, which was one sworn to by her power of attorney holder, and the averments in the said proof affidavit, as to the personal knowledge of the power of attorney holder, about the plaint averments, which cannot be sustained in law, in the light of the law laid down in the decisions referred to supra, the common order dated 19.02.2015 of the Family Court in I.A.No.2124 of 2012, the application to set aside the _ex-parte_ decree and I.A. No.2125 of 2012 is also liable to be dismissed. 13. In the result, these appeals are allowed by setting aside the _ex-parte_ judgment and decree dated 30.01.2008 of the Family Court, Kollam, in O.S.No.245 of 2007 and also the common order dated 19.02.2015 in I.A.Nos.2124 of 2012 and 2125 of 2012 in O.S.No.245 of 2007 and the suit stands restored to file. The Family Court is directed to finally dispose of O.S No.245 of 2007, after affording the appellant-father an opportunity to file a written statement, and an opportunity to `12` Mat.Appeal Nos.353 and 406 of 2015 both sides to adduce oral and documentary evidence. The legal and factual contentions raised by both sides, including the contentions raised in the counter affidavits filed before this Court by the respondent-daughter, are left open to be raised before the Family Court, at the appropriate time. Both parties shall appear before the Family Court, Kollam, on **08.01.2024** , through counsel. Registry to return LCR to the Family Court, Kollam, by special messenger. Sd/- **G. GIRISH, JUDGE** vgd