Unnikrishnan alias Shaju v. Vijaya

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941** **Mat.Appeal.No. 424 of 2017** **AGAINST THE ORDER IN OP 237/2014 of FAMILY COURT, TIRUR DATED 06-06-2015** ## **APPELLANT :** **UNNIKRISHNAN @ SHAJU, AGED 33 YEARS, S/O.AYYAPPUTTY, KODAKKALLUPARAMBU HOUSE, FEROKE, CHUNGAM, FEROKE COLLEGE P.O.- 673 632.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** ## **RESPONDENT :** **VIJAYA, AGED 29 YEARS, D/O.NEELAKANDAN, POKKATTUPADI HOUSE, KOORIYAD, VENGARA, THIRURANGADI TALUK, MALAPPURAM DISTRICT - 673 632.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **Mat.Appeal.No. 424 of 2017** 2 ## JUDGMENT Annie John, J. This appeal is filed against the judgment dated 06.06.2015 in O.P.No.237/2014 of the Family Court, Tirur. The appellant is the respondent/ husband in O.P.No.237/2014 of the Family Court, Tirur. The original petition has been filed by the respondent/ wife under Sections 13(1)(a) & (1)(b) of the Hindu Marriage Act. The case of the respondent/ wife is that the appellant married the respondent on 01.05.2011. After the marriage, the respondent has mentally and physically tortured by the appellant, after consuming liquor. Due to cruelty and total neglect shown by the appellant, the respondent is living separately in her parental home. The respondent has filed a criminal case against the appellant and his mother for **Mat.Appeal.No. 424 of 2017** 3 treating her with cruelty. As the matrimonial relationship has broken irreparably, the respondent had filed a petition for dissolution of marriage. The case was posted to 10.02.2015 on which day the appellant was present. It was further posted for mediation on 25.03.2015, on that day, the appellant was present. Later, it was adjourned to 28.04.2015. But, the appellant mistakenly noted the date as 24.04.2015. So he could not appear and it was reported that mediation failed. The appellant had entrusted his counsel in the lower court to file his objection. But, the counsel failed to represent and the petitioner was set ex parte. Aggrieved by the ex parte decree passed against the appellant on 06.06.2015 in O.P.No.237/2014, this memorandum of Matrimonial Appeal is filed. 2. The learned counsel for the appellant contended that the learned Judge has mechanically passed **Mat.Appeal.No. 424 of 2017** 4 an order in the original petition and there was no appearance for the respondent. The counsel also submits that unless the appellant is given an opportunity to contest the case on merits, he will be put to irreparable injury and loss. 3. Now the points to be considered is whether the order passed by the Family Court is justified or not and whether there was reasonable cause, on the side of the appellant, in not appearing before the lower court when the case was posted for hearing. According to the appellant, though the case was adjourned to 28.04.2015, he noted it mistakenly as 24.04.2015. But, no evidence is adduced to substantiate the said contention. So it cannot be said that he was prevented from appearing before the court, by sufficient cause. They have pointed out that without their presence and without getting any evidence on the side of the respondent/ wife, the Family Court has disposed of the case **Mat.Appeal.No. 424 of 2017** 5 by granting ex parte decree in favour of the respondent/ wife by granting dissolution of marriage between the appellant and the respondent under Sections 13(1)(a) & (1)(b) of the Hindu Marriage Act. It is true that the ex parte decree was passed on the basis of the averments in the affidavit alone. 4. Adjudication of a lis on merits is always desirable than dismissal on technicality. Therefore we are inclined to take a liberal view, to contest the disputes on merits. An opportunity shall be given to the appellant to contest the matter on merits. In the matter of appeal against ex parte decree, the court has to take liberal approach in deciding this matter. ## 5. In Sarojini Amma M.C. And Others v. P.Gopalan & Others [2016 KHC 896] it has held that “the court must be liberal in considering application to condone the delay and also to set aside ex parte decree - While considering the **Mat.Appeal.No. 424 of 2017** 6 words 'sufficient cause', pragmatic approach must be taken by the Court - As far as possible, an opportunity must be given to the parties to meet their case on merit and justice should not suffer on technical ground of limitation. 6. In the decision reported in Mahesh Kumar Joshi v Madan Singh Negi [AIR 2015 SC 974 : 2015 (12) SCC 254] it has been held in paragraph 11, after due consideration it has held that it will be fair and just to give the appellant an opportunity to contest the suit on certain conditions. 7. In G.P.Srivastava v. R.K.Raizada and Others [2003 (3) SCC 54], it has held that “was prevented by any sufficient cause from appearing, occurring in Order 9 Rule 13 must be liberally construed where defence is reasonable, defendant approaches court for setting aside ex parte decree within statutory period and non-appearance is not mala fide **Mat.Appeal.No. 424 of 2017** 7 or intentional - Courts have wide discretion and thus expression must be construed as an elastic expression and no hard and fast guidelines can be prescribed. It has further held that even where defendant is found to be negligent, the other side may be compensated by costs and the decree set aside on appropriate terms and conditions. 8. Now the appellant's grievance is that by mistake he could not appear before the court and contest the matter. He has got serious contentions in considering the matter of dispute, that too, between husband and wife. We are constrained to give an opportunity to the appellant to agitate the matter before the Family Court. Accordingly this Mat Appeal is allowed and the ex parte decree passed against the appellant is hereby set aside. The Family Court is directed to take fresh evidence by giving a chance to the appellant to file objection and to give evidence **Mat.Appeal.No. 424 of 2017** 8 in this matter and to dispose the case, within three months from the date of receipt of a copy of this judgment. Sd/K.HARILAL, JUDGE Sd/ANNIE JOHN, JUDGE RKM