Savad V.P. vs B. Shaniba

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** **OP (FC).No.60 OF 2020** **AGAINST THE ORDER IN I.A NO.1529/2019 IN OP 720/2018 DATED** **03-01-2020 OF FAMILY COURT, THALASSERY** ## **PETITIONER/RESPONDENT IN OP:** **SAVAD V.P., S/O. MOOSA HAJI, SAFA MANZIL, (VALIYAPARAMBATH), MOKERI ROAD, P.O. VALLANGAD, PANOOR, THALASSERY TALUK, 670 692 REPRESENTED BY POWER OF ATTORNEY HOLDER SAJEER P, S/O. USMAN, AGED 32 YEARS, PACHARATH HOUSE, P.O. MOKERI AMSOM, DESOM, KANNUR DISTRICT.** **BY ADVS. SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR** ## **RESPONDENT/PETITIONER IN OP:** **B.SHANIBA AGED 33 YEARS D/O. LATE MUHAMMED, NO JOB, ASKAR MAHAL, NEERVELI, P.O.NIRMALAGIRI, THALASSERY TALUK, 670 701.** **R1 BY ADV. SRI.C.P.PEETHAMBARAN** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.60 OF 2020** ..2.. ## **JUDGMENT** ## **C.S.DIAS,J.** The petitioner is the respondent in O.P.No.720/2018 on the file of the Family Court, Thalassery. 2. The petitioner challenges the order dated 03.01.2020 passed in I.A.No.1529 of 2019 in the above original petition, whereby the Family Court allowed the application to set aside the ex-parte decree, but directed the petitioner to deposit 1/4[th] of the value of the gold ornaments due as per the impugned decree. 3. The petitioner has pleaded in the original petition that the said condition is very onerous and beyond the settled proposition of law. 4. The petitioner had filed the above application seeking to set aside the _ex-parte_ **OP (FC).No.60 OF 2020** ..3.. decree that was passed against him. According to him, he could could not appear before the Family Court as he was abroad, and that he could not get a power of attorney executed, to file an application to set aside the ex-parte decree. So the prayer to set aside the exparte decree was disallowed on 16.10.2019. 5. The respondent in this original petition, opposed the application by filing a written objection. According to the respondent, the court was pleased to set aside the _ex-parte_ order passed against the petitioner on condition that he deposits an amount of Rs.3,000/-, as cost. Thereafter, three postings were given to the petitioner to appear for conciliation. However, the petitioner deliberately avoided the court. Finally, the court was pleased to set him _ex-_ **OP (FC).No.60 OF 2020** ..4.. _parte_ on 16.10.2019. There is no _bona fides_ in the application. So the application may be dismissed. 6. The Family Court after considering the pleadings and the proceedings found that on an earlier occasion, the _ex-parte_ decree that was passed against the petitioner was set aside, on condition that the petitioner deposits an amount of Rs.3,000/-. Though the petitioner deposited the cost, even after three postings, the petitioner did not appear before the Family Court. Therefore, the Family Court justifiable again set the petitioner _ex-parte_ on 16.10.2019. 7. The petitioner then filed I.A.No.757/2019 and 758/2019 through his counsel, to set aside the _ex-parte_ order and to condone the delay. The Family Court allowed **OP (FC).No.60 OF 2020** ..5.. the said applications, on condition that the petitioner deposits 1/4[th] of the value of the gold ornaments, as the petitioner is continuously absenting himself. 8. It is assailing the above order, this original petition is filed. 9. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 10. The learned counsel for the petitioner argued that the condition imposed by the Family Court, directing the petitioner to deposit 1/4[th] of the value of the gold ornaments is onerous and unreasonable. 11. The learned counsel for the respondent, on the other hand argued that the respondent has been perpetually absenting himself from the proceedings before the **OP (FC).No.60 OF 2020** ..6.. Family Court, and that the court was justified in passing the present order, which is in a way to compel the presence of the petitioner to attend the court proceedings, if he is genuinely and seriously interested in contesting the proceedings. 12. After going through the averments in the original petition and the impugned order, we find that the petitioner has pleaded sufficient reasons for his non-appearance before the Family Court, especially because he is employed abroad. Therefore, he was prevented from appearing before the Family Court. The petitioner even though made an attempt to prosecute the case through a power of attorney holder, he could not produce the power of attorney before court. His cardinal grievance is that the condition imposed by the **OP (FC).No.60 OF 2020** ..7.. Family court in the impugned order to deposit 1/4[th] of the value of the gold ornaments is onerous and reasonable. 13. The Hon'ble Supreme Court in _**M/s. GMG Engineering Industries & others**_ v. _**M/s. ISSA Green Power Solution and Others with**_ . v. _**A.C.Govindaraj & Ors M.Krishnamoorthy & Ors.**_ [ _**AIR 2015 SC 2675]**_ has held that unreasonably and onerous conditions shall not be imposed while setting aside an _ex-parte_ order. 14. We find that the condition imposed by the Family Court to deposit 1/4[th] of the value of the gold ornaments is against the law declared in the above authoritative precedent. Hence, the said condition is liable to be set aside. **OP (FC).No.60 OF 2020** ..8.. 15. Taking into consideration the inconvenience and hardship that has been caused to the respondent, due to the nonappearance of the petitioner as directed by the Family Court, we are of the opinion that the respondent has to be adequately compensated. 16. In the facts and circumstances of the case, we feel that an amount of Rs.10,000/(Rupees ten thousand only) as to be paid by the petitioner to the respondent as cost, which, would be sufficient to compensate the hardship of the respondent. The amount shall be paid to the respondent or her counsel appearing before this Court, and receipt evidencing payment shall be filed before the Family Court within a period of one month from today. On production of this judgment and the **OP (FC).No.60 OF 2020** ..9.. receipt within the stipulated time period, the _ex-parte_ order passed by the Family court in I.A.No.1529/2019 in O.P.No.720/2018 shall stand set aside. If the payment is paid within the stipulated time period, the parties shall appear before the Family court on 08.04.2020. It is made clear that the petitioner is bound to appear before the Family court, either in person or through agent, as directed by the Family Court, and as provided under Rules 24 and 25 of the Family Court (Kerala) Rules, 1989. 17. The Family Court shall, taking into consideration the fact that the original petition is of the year 2018, dispose of the original petition as expeditiously as possible, at any rate, within a period of six months from the date the cost is paid to **OP (FC).No.60 OF 2020** ..10.. respondent/her counsel. This original petition is ordered accordingly. **==> picture [79 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> SB/20/02/2020<br>**----- End of picture text -----**<br> **Sd/K.HARILAL JUDGE Sd/C.S.DIAS JUDGE** **OP (FC).No.60 OF 2020** ..11.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AFFIDAVIT FILED IN I.A.NO.1529 OF 2019 IN O.P.NO.720 OF 2018 BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P2** **TRUE COPY OF THE COUNTER IN I.A.NO.1529 OF 2019 IN O.P.NO.720 OF 2018 BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P3 TRUE COPY OF ORDER PASSED IN I.A.NO.1529 OF 2019 IN O.P. 720 OF 2018 BY THE FAMILY COURT, THALASSERY DATED 3.1.2020.** **RESPONDENTS EXTS: NIL** **// TRUE COPY //** **P.A TO JUDGE**