Thomas Koshy v. Susamma Thomas

``` 1 ``` Mat.Appeal No.802 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 ``` ``` WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 ``` ``` MAT.APPEAL NO.802 OF 2022 ``` ``` AGAINST THE ORDERS DATED 21.07.2022 AND 17.08.2022 IN I.A.NO.2 OF 2021 AND THE ORDER DATED 17.08.2022 IN R.P.No.12 OF 2021 IN O.P.(Div)No.218 of 2017 OF FAMILY COURT, PATHANAMTHITTA ``` ## **`APPELLANT/RESPONDENT/PETITIONER:`** ``` THOMAS KOSHY ``` ``` AGED 62 YEARS S/O.KOCHUKOSHY, KUZHIMANNIL MELETHIL VEEDU, ELAVUMTHITTA P.O., MEZHUVELI, KOZHENCHERRY, PATHANAMTHITTA-689625. ``` ``` BY ADVS. D.KISHORE R.MURALEEKRISHNAN (MALAKKARA) MEERA GOPINATH ``` ## **`RESPONDENT/PETITIONER/RESPONDENT:`** ``` SUSAMMA THOMAS @SARASAMMA GEORGE, AGED 59 YEARS D/O. E.T. GEORGE, KAVINEDATHU HOUSE, PAZHAVANGADI, KARIMALAM P.O., RANNI, NOW RESIDING AT LANE F, HOUSE NO. F1, CHALAKUDY ROAD, PATTOM P.O., THIRUVANANTHAPURAM-695004. ``` ``` THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` Mat.Appeal No.802 of 2022 ## **“CR”** ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellant filed O.P.(Div)No.218 of 2017 before the Family Court, Pathanamthitta, against the respondent herein–wife, under Section 10(1)(x) of the Indian Divorce Act, 1869, seeking a decree of divorce on the ground of cruelty. On 14.11.2018, the Family Court passed an _ex parte_ decree of divorce in that original petition. The respondent-wife filed I.A.No.1 of 2021 to set aside that _parte_ decree, which was renumbered as R.P.No.12 of 2021. That petition was supported by I.A.No.2 of 2021 filed for condonation of delay of 814 days. By the order dated 21.07.2022, the Family Court allowed I.A.No.2 of 2021, on payment of a cost of Rs.2,000/to the District Legal Services Authority, within two weeks. The cost was paid and accordingly, I.A.No.2 of 2021 was allowed by the order dated 17.08.2022. Thereafter, by another order dated 17.08.2022 the Family Court allowed R.P.No.12 of 2021, on the ground that I.A.No.2 of 2021 is allowed. The appellant filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, seeking an order to set aside the orders dated 21.07.2022 and 17.08.2022 in I.A.No.2 of 2021 and also the order dated 17.08.2022 in R.P.No.12 of 2021 in O.P.(Div)No.218 of 2017. ``` 3 ``` Mat.Appeal No.802 of 2022 2. On 16.11.2022, when this appeal came up for admission, this Court issued notice to the respondent. 3. On 24.11.2022, in I.A.No.1 of 2022, this Court granted an order of stay of all further proceedings in O.P.(Div)No.218 of 2017 on the file of Family Court, Pathanamthitta, for a period of one month. The said interim order, which was extended from time to time, is still in force. 4. Heard the learned counsel for the appellant-husband. Despite service of notice, none appears for the respondent-wife. 5. O.P.(Div)No.218 of 2017 is one filed by the appellanthusband seeking a decree of divorce under Section 10(1)(x) of the Indian Divorce Act, against the respondent-wife, to dissolve the marriage solemnised between them on 06.09.1986. On 14.11.2018, when that original petition was listed before the Family Court, the respondent-wife and her counsel were absent. Therefore, she was set _ex parte_ and an _ex parte_ decree of divorce was also passed on 14.11.2018. Seeking an order to set aside that _ex parte_ decree, she filed I.A.No.1 of 2021, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, which was re-numbered as R.P.No.12 of 2021. The said application was supported by I.A.No.2 of 2021 filed under Section 5 of the ``` 4 ``` Mat.Appeal No.802 of 2022 Limitation Act, 1963 for condonation of delay of 814 days. The restoration petition and also the application for condonation of delay were supported by the affidavits sworn to by the Advocate for the respondent-wife, wherein it is stated that the absence of the respondent and her counsel before the Family Court on 14.11.2018 was on account of an omission on the part of the Advocate Clerk in noting the date of posting. An application for setting aside the _ex parte_ decree was prepared and entrusted to the then Advocate Clerk, for filing. The learned counsel was under the impression that notice has already been ordered in that application and that, the said application is listed along with the connected matter, i.e., O.P.No.1010 of 2013, for return of notice. The then Advocate Clerk left employment. For the above reasons and also on account of the restrictions imposed in connection with Covid-19 pandemic, the learned counsel could not make necessary enquiry. He came to know about the omission to file such an application in O.P.(Div)No.218 of 2017 only when the connected matter, i.e., O.P.No.1010 of 2013, was listed for evidence. 6. In **Abdul Kareem v State of Kerala [2006 (2) KLT 408]** this Court held that any application filed under Order XLI, Rule 3A of the Code of Civil Procedure for condonation of delay, ``` 5 ``` Mat.Appeal No.802 of 2022 ## when the delay has occurred only because there was misplacing of files by the counsel, the application filed with an affidavit of the counsel is sufficient. ## 7. In **Balakrishnan v Geetha N.G. [2015 (1) KHC 775]** , in the context of Order IX, Rule 9 of the Code of Civil Procedure, a Division Bench of this Court held that, in a suit dismissed for default, an application filed by the Advocate for restoration, supported by his affidavit, is legally permissible. 8. The principle laid down in the decisions of this Court in **Abdul Kareem [2006 (2) KLT 408]** and **Balakrishnan [2015** **(1) KHC 775]** can be applied in a case in which the absence of the respondent in an original petition or a defendant in an original suit before the court on the day on which he was set _ex parte_ was on account of any laches on the part of the Advocate or his Clerk. Similarly the said principles can be applied in a case in which the absence of the petitioner in an original petition or the plaintiff in an original suit before the court on the day on which the original petition or the original suit was dismissed for default was on account of any laches on the part of the Advocate or his Clerk. In such cases an application for setting aside the _ex parte_ decree or an application for restoration can be filed along with an affidavit ``` 6 ``` Mat.Appeal No.802 of 2022 sworn to by the counsel. Similarly, if there occurred delay in filing an application to set aside the _ex parte_ decree or an application for restoration on account of any laches on the part of the Advocate or his Clerk, the application for condonation of delay can also be filed along with an affidavit sworn to by the counsel. The said principle cannot be extended in the case of an interlocutory application filed in an original petition or original suit for amendment of pleadings or for production of additional documents in support of the facts pleaded. In such matters, the affidavit in support of the interlocutory application should be that of the party and not that of his Advocate. 9. In the instant case, the averments in the affidavit filed in support of I.A.No.1 of 2021, which was renumbered as R.P.No.12 of 2021, and that in the affidavit filed in support of I.A.No.2 of 2021 are to the effect that the absence of the respondent-wife and her counsel before the Family Court on 14.11.2018 and also the delay in filing R.P. No.12 of 2021 occurred because there was an omission on the part of the Advocate and his Clerk in noting the posting date and filing the application to set aside the _ex parte_ decree, within the period of limitation. In such circumstances, the petition for setting aside the _ex parte_ decree, ``` 7 ``` Mat.Appeal No.802 of 2022 invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, and the application for condonation of delay filed under Section 5 of the Limitation Act can be filed along with an affidavit sworn to by the Advocate of the respondent-wife. In that view of the matter, we find no merit in the contention of the appellanthusband that the affidavit filed in support of the petition for restoration and that filed in support of the application for condonation of delay should have been sworn to by the respondent-wife, instead of her Advocate. 10. Order IX, Rule 13 of the Code of Civil Procedure provides for setting aside decree _ex parte_ 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 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 subrule (1), where the decree is of such a nature that it cannot be set ``` 8 ``` Mat.Appeal No.802 of 2022 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. 11. 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 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. ``` 9 ``` Mat.Appeal No.802 of 2022 The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. 12. In **G.P. Srivastava** , 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. 13. In **Peeves Enterprises v Muhammed Ashraf [2015** **(3) KHC 981]** , relying on the law laid down by the Apex 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 ``` 10 ``` Mat.Appeal No.802 of 2022 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. 14. In an application filed under Order IX Rule 13 of the Code of Civil Procedure, the applicant has to satisfy the court that the summons was not duly served on him or that he was prevented by any ‘sufficient cause’ from appearing when the suit or original petition was called for hearing. Then the court shall make an order setting aside the _ex parte_ decree. Therefore, an application filed under Order IX Rule 13 of the Code of Civil Procedure cannot be allowed, by a cryptic order, merely on the ground that the application for condonation of delay has been allowed. For allowing an application for setting aside the _ex parte_ decree, the Court has to record its satisfaction that the summons was not duly served on the applicant or that he was prevented by any ‘sufficient cause’ from appearing when the suit or original petition was called for ``` 11 ``` Mat.Appeal No.802 of 2022 hearing. 15. In **Breen v Amalgamated Engineering Union [(1971) 1 All ER 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 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. 16. In **Chairman and Managing Director, United Commercial Bank v R.C. Kakkar [(2003) 4 SCC 364]** following the principle laid down in the decisions referred to above, the Apex Court 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 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 ``` 12 ``` Mat.Appeal No.802 of 2022 out reasons for the order made, in other words, speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi-judicial performance. 17. In **Assistant Commissioner, Commercial Tax Department v Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion, showing proper application of mind. Violation of either of them could, in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the court should meet this requirement with a higher degree of satisfaction. 18. The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities, when exercising initial jurisdiction is essential for the reason that, it is calculated to prevent unconscious unfairness or arbitrariness in reaching conclusions. The very search of reasons will put the judicial or ``` 13 ``` Mat.Appeal No.802 of 2022 quasi-judicial authorities on the alert and minimise the chances of unconscious infiltration of personal bias or unfitness in the conclusion. A cryptic order, by 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 such an order. 19. In the instant case, cryptic order like the impugned order dated 17.03.2022 in R.P. No.12 of 2021 in O.P. No.218 of 2017 of the Family Court, Pathanamthitta virtually made the appellate jurisdiction of this Court under Section 19(1) of the Family Courts Act negatory and ineffective, inasmuch as, such an order, by its silence, is no assistance to this Court while analysing the reason essential to such a decision. In that view of the matter, the order dated 17.08.2022 of the Family Court, Pathanamthitta in R.P.No.12 of 2021 in O.P.No.218 of 2017, which is a cryptic order, cannot be sustained in law. In such circumstances, this appeal is allowed by setting aside the order dated 17.08.2022 of the Family Court, Pathanamthitta in R.P.No.12 of 2021 in O.P.No.218 of 2017 and the said court is directed to pass fresh orders in that restoration petition, after adverting to the rival contentions, with specific reference to the ``` 14 ``` Mat.Appeal No.802 of 2022 requirements of Order IX Rule 13 of the Code of Civil Procedure. A reasoned order shall be passed by the Family Court, as expeditiously as possible, at any rate within a period of two weeks from the date of receipt of a certified copy of this judgment. Till such orders are passed, the interim order granted in this appeal shall continue to be in force. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV