IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933 RPFC.No. 88 of 2011() --------------------- AGAINST THE ORDER DATED 31/01/2011 IN ORDER IN MC.279/2009 of the Family Court, Kannur .................... (S): REVISION PETITIONER/PETITIONER -------------------------------------------------- P.M.ABDUL ROUF, S/O. MAMMU, AGED 41, POOMANGALORAKATH HOUSE, PERUMALABAD, CHAPPARAPADAVU.P.O., KANNUR DISTRICT. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S): --------------- NALARAKETTIL UNDA NABEESA, D/O. MAMMAD, AGED 36, KARAKKUDI,PALLIVAYAL.P.O., KARIMBAM VIA. THALIPARAMBA, KANNUR DISTRICT. PIN-670141. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- R.P.F.C.NO.88 OF 2011 ------------------------------------------------- Dated this the 1st day of April, 2011. ORDER The above revision petition is preferred by the petitioner in M.C.No.279 of 2009 of the Family Court, Kannur aggrieved by the order dated 31.01.2011 in the above case, which is proceedings instituted at the instance of the petitioner under Section 127 of Cr.P.C., to cancel the order dated 29.05.2007 in M.C.No.400/2005 of the same Family Court, by which the petitioner herein is directed to pay monthly maintenance to the respondent herein at the rate of Rs.1,000/- under Section 125 of Cr.P.C, dismissing the above petition for default. 2. I have heard the counsel appearing for the revision petitioner and I have perused the order impugned. 3. The learned counsel for the revision petitioner submitted that aggrieved by the order in M.C which indicated above, the petitioner herein approached the Family Court by filing a petition under Section 127 of Cr.P.C R.P.F.C.NO.88 OF 2011 2 to cancel the said order. According to the counsel in the above proceedings, unfortunately, the posting date of the above case mistakenly noted by the counsel appearing for the petitioner in the Family Court and as such there was no representation when the case was called on 31.01.2011 and therefore, the learned judge dismissed the petition. The counsel for the petitioner submitted that when the revision petitioner preferred the above M.C under Section 127 of Cr.P.C the respondent herein who is the wife and claimant in the original M.C preferred another petition under Section 127 of Cr.P.C for enhancement of the amount already ordered towards the maintenance which was pending as M.C.No.372/2009. The counsel for the petitioner submitted that the petitioner has got substantial grounds to cancel the order issued by the Family Court under Section 125 of Cr.P.C. 4. On hearing the counsel for the petitioner and after perusal of the order impugned and on scrutiny of the facts and circumstances involved in this case, I am of the view R.P.F.C.NO.88 OF 2011 3 that this revision petition can be disposed of without entering into the merits of the case but granting an opportunity to the petitioner to prosecute the matter pending under Section 127 of Cr.P.C. 5. The specific case of the revision petitioner is that the petitioner came to know subsequently i.e., after the order to pay maintenance that the wife/ the claimant, who is the respondent herein has got sufficient property and has her own income to maintain herself and with the intention to bring those facts to the notice of the court below and to cancel the earlier order the petitioner has filed the present petition in the court below but the same is dismissed for default due to the failure on the part of the counsel who appeared for the revision petitioner in the court below in noting down the exact date of posting of the case. If that be so, according to me, it is only just and proper to grant the revision petitioner one more opportunity to prosecute the matter on merit but the same can be done only on terms. In the result, this revision petition is disposed of R.P.F.C.NO.88 OF 2011 4 setting aside the order dated 31.01.2011 of the Family Court, Kannur in M.C.No.279/2009 and remanded the matter back to the same court for fresh consideration and disposal on condition the petitioner paying a sum of Rs.1,000/- to the respondent, the claimant in M.C.No.400/2005 under Section 125 of Cr.P.C within one month from today. On paying the above amount the revision petitioner is directed to file a memo in the Family Court showing the payment and on receiving such memo, the Family Court, Kannur is directed to restore M.C.No.279/2009 on file and post along with M.C.No.372/2009 and to proceed to here the same in accordance with the procedure and law and dispose it on merit. V.K.MOHANAN, JUDGE pm