IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 FAO.No. 237 of 2004() --------------------- AGAINST THE ORDER IN IA.2218/01 & 2219/01 IN OS.415/1994 of FAMILY COURT,TRIVANDRUM .................... APPELLANTS/PETITIONER/DEFENDANTS: ---------------------------------------------------------- MADHAVAN NAIR, S/O. KESAVA PILLAI, AMBALATHUNKUZHI, THOTTARIKATHU VEEDU, KANDAYATHUKONAM, PUTHUKULANGARA. FROM CHAMAKKARA VEEDU, PUTHUKULANGARA, VELLANADU VILLAGE, NEDUMANGADU TALUK. BY ADV. DR.K.P.KYLASANATHA PILLAY SRI.ARUN.B.VARGHESE SRI.T.P.DEYANANTHAN SMT.SREEDEVI KYLASANATH RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------ SUVARNAKUMARI, AZHAKATHU VEEDU, PUTHUKULANGARA, UZHAMALAKKAL VILLAGE, NEDUMANGADU TALUK. ADV. SRI.M.R.RAJESH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 24/06/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 237 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order dated 22.7.2004 in I.A. Nos. 2218 of 2001 and 2219 of 2001 in O.S. No.415 of 1994, the petitioner before the court below has come up in appeal. The parties and facts are hereinafter referred to as they are available before the court below. 2. The respondent had instituted proceedings for maintenance against the petitioner. She got a decree in her favour. It is seen that even though the petitioner had notice of the proceedings before the court below and had engaged a counsel for himself, he did not further take part in the proceedings. An ex- parte order seems to have been passed in favour of the wife. 3. Two petitions were thereafter filed by the petitioner, namely, I.A. 2218 of 2001 under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree and I.A. 2219 of 2001 to condone the delay of six years and 190 days in filing the F.A.O. 237/2004. 2 petition for setting aside the ex-parte decree. 4. The court below after an elaborate consideration of the materials before it found that there was absolutely no bonafides or good faith in the claim made by the petitioner for his absence and non- participation in the proceedings and dismissed both the petitions. The said order is challenged in this appeal. 5. Petitioner would claim that he obtained divorce from his wife on 27.11.1988. Suppressing the material facts, the wife sued for maintenance. According to the petitioner, on receiving summons he had engaged a counsel to appear for him. According to the petitioner, he was under the bonafide belief that his counsel would be prosecuting the suit diligently on his behalf. The petitioner claims to have fallen ill and says that he has to undergo prolonged treatment. In fact he was affected by Hemi Plegia and had to remain in bed. Due to acute health problems he was unable to attend the court. This resulted in his inability to meet his counsel and to give necessary instructions. According to the petitioner, on 21.11.2001 when the wife along with others came to the property, he came to know that there has been a F.A.O. 237/2004. 3 decree against him. He then understood that they have come in pursuance of E.P. 44 of 1999 filed before the Family Court for execution of the maintenance decree obtained by his wife. He also came to know that his property had been sold and sale certificate had been issued in the name of his wife. Petitioner claims that he has no notice of the execution proceedings. Had he received notice in execution proceedings, he would have taken appropriate steps earlier. Pointing out that there was no wilful laches or negligence on his part, he prayed for setting aside the ex-parte decree against him and also to have the delay condoned in filing the petition for setting aside the ex- parte decree. 6. The respondent resisted the petitions. It was pointed out by her that there is absolutely no good faith or bonafides in the petition and the intention of the petitioner is to prolong the matter. According to her, the properties involved in the proceedings were settled in favour of the petitioner at the time of marriage and it was intended for her benefit. She has been in possession and enjoyment ever since then. Petitioner was an ex-military man and thereafter he worked as Security F.A.O. 237/2004. 4 officer in a private concern. He had deserted the respondent and her children and thereafter married another woman and they have three children. According to her, the petitioner was aware of the proceedings and deliberately refrained from attending the court. The claim of illness and prolonged treatment etc., are false. Pointing out that no grounds are made out to allow the petitions, she prayed for a dismissal of the same. 7. As already noticed, the court below dismissed the petitions. 8. Assailing the order of the court below, learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the petitions. Reasons were given for the non- appearance and non-prosecution of the proceedings by the petitioner, and the court below was not justified in not accepting the same. According to the learned counsel, this has resulted in miscarriage of justice and he prays for an opportunity for him to have the matter decided on merits. F.A.O. 237/2004. 5 9. Though the above claim may, at the first blush, look innocuous, on a closer scrutiny, it can be seen that there is no basis at all. The petitioner has no case that he did not have notice in the proceedings. In fact, what he would say is that he had engaged a counsel. Nowhere in the petition or affidavit he has stated that subsequent to engaging a counsel, he had ever met his counsel. According to him, he was ill and was laid up due to Hemi Plegia. He had undergone prolonged treatment. Interestingly enough though he claims that he has undergone medical treatment for a long time, no documents whatsoever were produced in support of his claim. If what he says is true, there would have been documents to prove the same. Surely, he would have obtained necessary documents from his Doctor to establish his claim. Atleast he would have examined the Doctor, who had treated him. One must remember that the delay is of six and odd years. The decree was one for maintenance. Not even a scrap of paper was produced by the petitioner. It has also come out that he is married to another lady and in that relationship he had three children. F.A.O. 237/2004. 6 10. The court below has considered the matter in great detail, and has come to the conclusion that the allegations put forward by the petitioner cannot be accepted. There is no reason to take a different view, especially in the light of the fact that no evidence whatsoever was produced by the petitioner in support of his case. The accusation of the respondent before the court below that the attempt of the petitioner is only to protract the matter in order to deny the claims available to the respondent seems to be fully justified. The result is that there is no merit in this appeal and so, it is dismissed confirming the order of the court below with costs to the respondent. P.R. Raman, Judge P. Bhavadasan, Judge sb.