Sunitha Ann Varghese and Sevyan v. Nibu Mathew Titus, Lessy Titus and Binu Abraham Titus

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022/ 1ST AGRAHAYANA, 1944 O.P.(FC) NO. 65 OF 2022** **AGAINST THE ORDER DATED 21.06.2018 IN I.A.NO.825 OF 2017 IN O.P.NO.358 OF 2013 OF THE FAMILY COURT, THIRUVALLA PETITIONERS:** **1 SUNITHA ANN VARGHESE, AGED 39 YEARS, D/O.LATE GEEVARGHESE SAMUEL, PUTHUPARAMBIL EBENEZAR VILLA, MUTHOOR P.O., THIRUVALLA, PATHANAMTHITTA, PRESENTLY RESIDING AT PO BOX 1476, 81025 DAJEEJ, FARWANIYA, KUWAIT, REPRESENTED BY HER BROTHER, POWER OF ATTORNEY HOLDE, SUNIL CHANDY VARGHESE, AGED 37 YEARS, S/O.LATE GEEVARGHESE SAMUEL, PUTHUPARAMBIL EBENEZAR VILLA, MUTHOOR P.O., THIRUVALLA, PATHANAMTHITTA-689 101.** **2 SEVYAN, AGED 9 YEARS, S/O.NIBU MATHEW TITUS, PUTHUPARAMBIL EBENEZAR VILLA, MUTHOOR P.O., THIRUVALLA, PATHANAMTHITTA, REPRESENTED BY HER MOTHER SMT.SUNITHA ANN VARGHESE.** **BY ADV V.VIJITHA** ## **RESPONDENTS:** **1 NIBU MATHEW TITUS, AGED 40 YEARS, S/O.TITUS ABRAHAM, PAROLIL HOUSE, CHELLAKADU P.O., RANNY TALUK, PATHANAMTHITTA-689 677 (FORMERLY WORKING AT BRONZIA PROJECT GENERAL TRADING AND CONTRACTING CO., WLL OFFICE NO.4, WABES BUSIENSS CENTRE, FREE TRADE ZONE, SHUWAIK, KUWAIT).** 2 ## O.P.(FC) No.65 of 2022 - **2 LESSY TITUS, AGED 63 YEARS, W/O.LATE TITUS ABRAHAM, PAROLIL HOUSE, CHELLAKADU P.O., RANNY TALUK, PATHANAMTHITTA-689 677.** - **3 BINU ABRAHAM TITUS, AGED 38 YEARS, S/O.LATE TITUS ABRAHAM, PAROLIL HOUSE, CHELLAKADU P.O., RANNY B TALUK, PATHANAMTHITTA-689 677.** **BY ADVS.** **MANU RAMACHANDRAN M.KIRANLAL** **T.S.SARATH R.RAJESH (VARKALA) SAMEER M NAIR HARSHA SUSAN SAM GEETHU KRISHNAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.65 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. This Original Petition under Article 227 of the Constitution of India is filed seeking to set aside Ext.P8 which is the order in I.A.No.825 of 2017 in O.P.No.358 of 2013 on the file of the Family Court, Thiruvalla. 2. On 04.02.2022, this Original Petition was admitted. Pursuant to the notice, the respondents entered appearance. 3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 4. The petitioners have filed O.P.No.358 of 2013 for recovery of money and gold ornaments. It was dismissed for default. So she filed a petition, I.A.No.1279 of 2015 to restore the original petition. That petition was dismissed again for default. She therefore filed a petition, I.A.No. 533 of 2016 to restore the earlier petition for restoration. That subsequent application for restoration also ended in dismissal. Again she filed a petition, I.A.No.337 of 2017 to restore I.A.No. 533 of 4 O.P.(FC) No.65 of 2022 2016. That petition was allowed on 29.4.2017 as per Ext. P5 order. But the Family Court instead of restoring I.A.No. 533 of 2016 on file, restored O.P.No.358 of 2013. The respondents therefore filed I.A.No.825 of 2017 seeking to review the order dated 29.04.2017, whereby O.P.No.358 of 2013 was restored on file. The Family Court allowed that review petition as per Ext. P8 order and recalled the order dated 29.04.2017. Resultantly, O.P.No.358 of 2013 was dismissed. 5. This Original Petition was filed pointing out the series of errors in the proceedings of the Family Court. The incidents transpired after the dismissal of O.P.No.358 of 2013 till allowing I.A.No.825 of 2017 are narrated by the Family Court in paragraph No.5 of Ext. P8, which reads,- “5. The brief facts of the proceedings is that the OP 358 of 2013 was filed by the original petitioner (The first counter petitioner herein) for patrimony. The case was posted for the evidence of the original petitioner as last chance to 07.10.2015. Since she failed to attend to adduce evidence, the OP was dismissed for default. Thereupon IA 1279/2015 was filed to restore the OP, that was dismissed on 5 O.P.(FC) No.65 of 2022 28.04.2016 for default as petitioner and her counsel were absent. Then to restore the said petition, IA 533 of 2016 was filed. That also was dismissed as per order dated 21.3.2017 for the reason that petitioner as well as her counsel were absent and there was no representation and no steps were taken to issue notice to counter petitioners No.1 to 3 (R1 to R3). Then to restore the said petition, IA 337 of 2017 was filed. IA 337 of 2017 was the review petition to review the above said order dated 21.3.2017 in IA 533 of 2016. The said order was passed by the learned predecessor. In the said order, it is not stated that IA 533 of 2016 was restored. It is only stated that petition is allowed. As the hand written order is not legible, by mistake, on the misconception that the OP was restored, myself had ordered to restore the OP and so the OP was restored. Later, the mistake was brought to my notice and thereupon order restoring the OP was cancelled and IA 533 of 2016 was restored and without going through the earlier proceedings, mistakenly the said IA was allowed and consequently IA 1279 of 15 was restored and without noticing the fact that notice was not served to counter petitioners No. 1 to 3 (R1 to R3) the said petition was also allowed and as per order dated 19.7.2017, the OP was again restored.” 6 O.P.(FC) No.65 of 2022 6. At that stage, the respondents have filed I.A.No.825 of 2017, which was one for review, pointing out that without giving them notice, I.A.No.533 of 2016 was allowed and the error in restoring O.P.No.358 of 2013 without first allowing I.A. No.1279 of 2015. Accepting that contention, the Family Court on 21.06.2018 allowed I.A.No.825 of 2017, and set aside the order dated 19.07.2017, by which O.P.No.358 of 2013 was restored. As a consequence the Family Court had dismissed O.P.No.358 of 2013 again. A copy of the judgment dated 21.06.2018 thus dismissing O.P.No.358 of 2013 is made available for our perusal by the learned counsel appearing for the respondents. 7. The learned counsel appearing for the petitioners would submit that there was sufficient reason for the nonappearance of the petitioners in time; since the 1[st] petitioner was held up in Kuwait and she could not come over to India to prosecute the case. There was a lack of communication between herself and the lawyer also. In such circumstances, the absence of the petitioners to appear before the Family 7 ## O.P.(FC) No.65 of 2022 Court, though occurred on more than one occasions, resulting in dismissal of the Original Petition and also the Interlocutory Applications, is said to be for sufficient reasons. The respondents vehemently contended that the said stand taken by the petitioners is incorrect. 9. In **Rohin Thapa v. Rohit Dora [(2019) 7 SCC 359]** the Apex Court held that ordinarily, a litigation shall be decided based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or the defendant. The cause of justice does require that as far as possible, adjudication be done on merits. 10. In **Kozhikkara Veettil Saidalavi (died) and others v. P.B.Abdul Hameed and others [2022 (1) KHC 13]** this Court took the view that disposal of litigations on merits is a requirement of law, unless there is sufficient reason to deviate from it. 11. The marriage between the 1[st] petitioner and the 1[st] respondent was already separated. The claim of the petitioners is that they are entitled to get back the gold and 8 O.P.(FC) No.65 of 2022 money given in connection with the marriage of the 1[st] petitioner. In the nature of the dispute involved in the matter and the fact that both the 1[st] petitioner and the 1[st] respondent were working abroad, it is only appropriate to enable them to participate in the trial and to get a resolution on the dispute on merits. 12. It is true that going by the strict rule of procedure, each of the restoration applications, which were dismissed for default in succession, has to be considered one by one. This Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, however, on taking into account the convenience of the parties and the interest of justice, can adopt a different course, but of course, without offending the law of procedure. We are therefore of the view that Ext.P8 order is liable to be set aside and the Family Court, Thiruvalla to restore O.P.No.358 of 2013 on file treating I.A.Nos.1279 of 2015, 533 of 2016 and 337 of 2017 as allowed. Accordingly, this Original Petition is allowed. Ext. P8 order in I.A.No.825 of 2017 is set 9 O.P.(FC) No.65 of 2022 aside. The Family Court will, Thiruvalla will restore O.P.No.358 of 2013 on file and proceed with it in accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.65 of 2022 ## **APPENDIX OF OP (FC) 65/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** - **EXHIBIT P2 TRUE COPY OF THE IA NO.1279/2015 IN OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** - **EXHIBIT P3 TRUE COPY OF THE IA NO.533/2016 IN IA NO.1297/2015 IN OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** - **EXHIBIT P4 TRUE COPY OF THE IA 337/2017 IN IA NO.533/2016 IN IA NO.1297/2015 IN OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 29.04.2017 IN IA NO.337/2017 IN OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** - **EXHIBIT P6 TRUE COPY OF THE IA NO.825/2017 IN OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** - **EXHIBIT P7 TRUE COPY OF THE OBJECTION PREFERRED BY THE PETITIONERS TO IA NO.825/2017 IN OP NO.358/2013 BEFORE THE FAMILY COURT, THIRUVALLA.** **EXHIBIT P8** - **TRUE COPY OF THE ORDER DATED 21.06.2018 IN IA NO.825/2017 IN OP NO.358/2013 OF THE FAMILY COURT, THIRUVALLA.**