IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 RPFC.No. 340 of 2009() --------------------------------- CMP.1868/2008 IN MC.806/2006 of FAMILY COURT, PALAKKAD. .................... REVISION PETITIONER/PETITIONR/RESPONDENT ------------------------------------------------------------------------ JAGANNIVASAN, AGED ABOUT 42 YEARS, S/O. VELAYUDHAN, CHUNGAMANNAM VEEDU, MAHALIKUDAM THENKURUSSI, PALAKKAD REP. BY POWER AGENT AND BROTHER SHRI C.V. MOHANAN AGED 51 YEARS, RESIDING AT CKV NIVAS, CHUKANMANAM, VILAYANNUR, PALAKKAD. BY ADV. MR.U.BALAGANGADHARAN RESPONDENTS/RESPONDENTS/PETITIONER: ------------------------------------------------------------------ 1. SUMITHRA AGED 35 YEARS, D/O. APPU NAGARPADAM, MUTHALAMADA, CHITTUR TALUK, PALAKKAD. 2. VINOY, AGED 13 YEARS (MINOR) REP. BY HIS MOTHER SUMITHRA, THE FIRST RESPONDENT S/O. THE FIRST PETITIONER NAGARPADAM, MUTHALAMADA, CHITTUR TALUK, PALAKKAD. 3. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY SR.PUBLIC PROSECUTOR MR.BENNY VARGHESE. R1 & R2 BY MR.P.SANTHALINGAM, SENIOR ADVOCATE, ADV. MR.S.SHARAN. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RPFC.No. 340 of 2009 ORDER ON CRL.MA.NO.8762/2009 IN RP(FC) NO.340/2009 CLOSED 08/02/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.340 OF 2009 ............................................. Dated this the 8th day of February, 2010. O R D E R This revision is preferred against the order of the Family Court, Palakkad in CMP.No.1868/2008 in MC.No.806/2006. Husband is the petitioner. The wife moved an application for maintenance as M.C.No.33/2004 and an ex parte order was passed therein. Thereafter she has moved another application, M.C.No.806/2006, for variation of the amount as contemplated under Section 127 of the Cr.P.C. Meanwhile the husband made an attempt to get the ex parte order in MC.No.33/2004 set aside by filing two petitions-CMP.Nos. 1986 and 1987/2007 and those petitions were dismissed by the family court. After dismissing the same the family court proceeded to decide M.C.No.806/2006 and passed an order partly allowing the same. It is submitted that since two other applications were dismissed, he was under the impression that the other case would be adjourned. It is also averred that the power of attorney holder of the client was not well and he was unable to : 2 : R.P.(F.C).No.340 OF 2009 attend the court. It is stated that the case was taken up for orders on 30.9.2008 and it was pronounced only on 30.10.2008 and therefore the petitioner could have moved an application in between the two. 2. Whatever it may be there was negligence on the part of the husband to prosecute the proceedings that is why he moved petitions for setting aside the ex parte order. At least when that was turned down, the court should have given some breathing time to prosecute the petition filed under Section 127 of the Cr.P.C. I think the court did not apply its mind properly in refusing to grant time to the revision petitioner to contest M.C.No.806/2006. 3. Therefore I find that interest of justice requires an opportunity has to be given. So, the order under challenge is set aside and CMP.No.1868/2008 is allowed and the family court is directed to consider the matter afresh by affording equal opportunities to both sides to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the family : 3 : R.P.(F.C).No.340 OF 2009 court on 05.03.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 4 : R.P.(F.C).No.340 OF 2009