IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 Mat.Appeal.No. 283 of 2011(A) ----------------------------- OP.344/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): 2ND RESPONDENT ----------------------------- POKKUTTY, S/O.CHEKKU HAJI, PULATH PULIKOTIL HOUSE, NADUVATH P.O., WANDOOR - VIA, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): PETITIONERS & IST RESPONDENT ------------------------------------------- 1. JASEENA, D/O.HAMZA, THACHUPARAMBAN HOUSE, KARUNALAYAPPADI, WANDOOR P.O., MALAPPURAM DISTRICT. 2. SHANA FARVEEN (MINOR), AGED 10 YEARS, REPRESENTED BY MOTHER/IST RESPONDENT. 3. RIFA SHAMNA (MINOR), AGED 6 YEARS, REPRESENTED BY MOTHER/IST RESPONDENT. 4. NOUSHADALI, S/O.POKKUTTY, PULATH PULIKOTIL HOUSE, NADUVATH P.O., WANDOOR - VIA MALAPPURAM DISTRICT. ADV. SRI.U.K.DEVIDAS THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Mat. Appeal No.283 of 2011 ----------------------------------------------- Dated 7th April, 2011. J U D G M E N T Joseph, J. I.A.1039 of 2011 : Allowed. The appeal is directed against Annexure D order of the Family Court, Malappuram. O.P.No.344/09 was filed by the respondents 1 to 3, claiming inter alia maintenance, return of gold ornaments and return of money. The same was decreed ex parte against the appellant, and the second respondent in the O.P., as per Annexure A order. The appellant challenged the ex parte decree and it culminated in Annexure B order of the Family Court. It is against the same that the appellant filed Mat.Appeal No.524/2010 before this Court and as per Annexure C judgment, this Court set aside the impugned ex parte order, to the extent it was against the appellant herein, subject to certain conditions. This Court further directed the appellant and the respondents 1 to 3 to be present before the Family Court on 1.12.2010 and the Family Court was directed to dispose of the matter within a period of eight months from the said date. Thereafter, Annexure D order has been passed, wherein, it is stated that the petitioners (respondents 1 to 3 I.A.895/11 2 herein) are present. The respondent (appellant) is absent and both were directed to be present before this Court by the High Court of Kerala and even then, respondent (appellant) is absent and there is no application or representation. Thereafter, the order of the court, viz., Annexure A, was revived. 2. We heard learned counsel for the appellant and learned counsel appearing for respondents 1 to 3. Learned counsel for the appellant would point out that there is a direction of this Court that the matter is to be disposed of within a period of eight months. For the absence of the appellant on a single day, i.e., on 1.12.2010, the Family Court has proceeded to revive the earlier order. He would pray that an opportunity may be given to the appellant. According to him, the appellant is aged 70 years and since he was not keeping well, he could not be present. He prays that even within the original time, the matter can be disposed of as directed by this Court, for which the appellant is ready. Learned counsel for the respondents would point out that neither the appellant nor the counsel were present on 1.12.2010. He further points out that I.A.895/11 3 there is no need for interference. 3. We have already referred to the fact that this Court in the earlier appeal (M.A.524/2010) had directed to dispose of the matter within eight months from 1.12.2010. It is true that the appellant was not present on 1.12.2010, i.e., on one day. But, at the same time, we feel that for that reason alone, the Family Court should not have disposed of the case, by reviving the earlier order. 4. Having regard to the fact that the appellant has made good his case, we feel that the Family Court should not have passed Annexure D order. But, at the same time, we feel that appellant has to be put on terms, if he is to be granted the relief. Accordingly, we pass the following order :- The impugned order, Annexure D, as against the appellant, shall stand set aside and Annexure C will revive upon the appellant fulfilling the following conditions :- (i) The appellant will pay cost of Rs.5,000/- (Rupees five thousand only) to the counsel appearing for the respondents 1 to 3 before this Court and produce the I.A.895/11 4 memo, on or before 11.4.2011. (ii) The appellant shall further deposit 10% of the amount remaining to be paid, excluding the amount ordered to be paid as past maintenance, as per Annexure A order. The above conditions must be fulfilled within three weeks from today. (iii) We further direct that if the appellant fulfils these conditions, the Family Court, Malappuram will take up the matter and dispose of the matter within the period mentioned in Annexure C. (iv) In case the appellant does not fulfil either of the conditions, viz., payment of cost or deposit of 10%, the appeal will stand dismissed. The appeal is disposed of. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs