IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Mat.Appeal.No. 759 of 2008 ---------------------------- IA 271/2006 and I.A. 272/06 IN OS.280/1991 of FAMILY COURT, PALAKKAD .................... PETITIONER: APPELLANT ------------------------ KANNAN NAIR, AGED 66 YEARS, S/O.ACHUTHAN NAIR, RESIDING AT OUKKAT HOUSE, CHUNANGAD (POST), OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.T.P.RAMACHANDRAN (THACHETH) RESPONDENT: RESPONDENT ------------------------- PADMAPRIYA, D/O.PREMAKUMARI, KATTILMADATHIL HOUSE, KUNATHARA AMSOM, DESOM, OTTAPALAM TALUK. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== MAT APPEAL NO. 759 OF 2008 ============================ DATED THIS THE 28TH DAY OF OCTOBER 2009 JUDGMENT Basant,J. The one thing that we can undoubtedly agree with the learned counsel for the appellant is that the facts of the case are really strange and weird. The appellant has come before this Court to assail a common order passed in two applications filed by the appellant before the Family Court. Those applications are for setting aside an ex parte decree dated 4-7-1994 passed in a suit for maintenance along with an application to condone the long delay of 11 years, six months and seven days in seeking that relief. 2. We shall briefly advert to the facts stated at the Bar, though they did not appear to be crucially relevant while considering the challenge raised in the appeal. One Premakumari, mother of the respondent filed an application for M.A.759/2008 -2- maintenance under Section 125 of the Code of Criminal Procedure before the Judicial First Class Magistrate Court, Ottappalam. She claimed maintenance from one Kuttan Menon on behalf of herself and the child born to her. It is submitted that the said application was closed on the basis of agreement/consent between the claimants and the said Kuttan Menon. After disposal of that case, the mother of the respondent herein/the claimant submitted a letter to the Magistrate to inform the learned Magistrate that her lawyer had played fraud on her and that really the intention was to file a claim against the appellant herein and not against the said Kuttan Menon. The learned Magistrate took serious note of the same and initiated proceedings. The matter came up to this Court and to cut a long story short, in the prosecution on that complaint, the accused have ultimately been acquitted. The learned counsel submits that the appellant was not an accused in that case. Be that as it may, it is further submitted that Kuttan Menon had later gone to the civil court for a declaration that he is not the husband/father M.A.759/2008 -3- of the claimants. That claim is allowed also, it is submitted. 3. Long later, O.S.No.280/1991 was filed before the Sub Court, Ottappalam by the mother of the respondent herein representing her claiming maintenance from the appellant. In that proceedings, the appellant herein entered appearance and conceded that he is the father of the respondent. It is submitted that he had raised the contention before the Sub Court that he was actually maintaining the child and in these circumstances no decree for maintenance is liable to be passed. That contention was not substantiated and the appellant did not appear before the court thereafter. In these circumstances, an ex parte decree was passed on 4-7-1994. The appellant did not move his little finger against the ex parte decree passed and long later on 11-1- 2006 the present applications were filed to set aside the ex parte order and to condone the long delay of 11 years, six months and seven days in filing the said petition. The application was opposed stoutly by the respondent. The court below considered the oral evidence of the appellant (PW1) and Exts.A1 and A2 M.A.759/2008 -4- documents suggesting cardiac ailment of the appellant during 1993 and came to the conclusion that the appellant is not entitled to get the ex parte decree passed against him set aside after condoning the delay. Accordingly, the Family Court proceeded to pass the impugned order. 4. The ex parte decree was passed by the Sub Court. But in the meantime the Family Court was constituted and in the light of Section 7 and the explanation, the application to set aside the ex parte decree was filed before the Family Court and disposed of by the said court. 5. The appellant claims to be aggrieved by the impugned order. What is his grievance? The learned counsel for the appellant submits that the court below must have condoned the delay and must have set aside the ex parte decree. Admittedly the appellant did get notice in the proceedings before the Sub Court. Admittedly he entered appearance. Admittedly he filed written statement. Admittedly in the written statement he conceded that he is the father of the claimant-minor child who M.A.759/2008 -5- had staked the claim through her mother/guardian. On that admission, the appellant should have known that if he did not succeed in establishing his plea that he was actually maintaining the child, he would suffer a decree. Admittedly the appellant did not take part in the proceedings and did not adduce any evidence. He did not challenge the evidence of the claimant. It was in these circumstances that the decree was passed. 6. What is the explanation that the appellant can offer for such conduct of his? He admittedly appeared and filed written statement. He did not participate in the proceedings thereafter. He went into a long Rip Van Winkle slumber thereafter. He wakes up after a period of about 12 years and makes his application to set aside the ex parte order. 7. According to the learned counsel for the appellant, the appellant was laid up. When was he laid up? It is submitted that he has suffered four cardiac attacks and had to undergo treatment for a long period of time. When did the cardiac ailment affect him? When did the treatment start? When did the M.A.759/2008 -6- treatment end? What did he do after the treatment ended? No satisfactory explanations are forthcoming. Evidently the ailment could not have remained for the long period of 11 years,six months and seven days. What was the appellant doing in the meantime? Why he did not approach the court earlier to get the ex parte order set aside? Less said about the conduct of the appellant better. The conclusion is irresistible in these circumstances that the appellant was willing to suffer a decree and did not want to challenge the decree. No other reasonable explanation appears to be available now to justify such conduct of the appellant not taking any action against the ex parte decree which he must have known was (or at least would be) passed against him. 8. The appellant has yet another curious contention to advance. According to him, after the passing of the impugned decree after a lapse of about a decade, he had paid an amount of Rs.1,57,500/- to the mother of the respondent/claimant. Why did he make the payment? He now wants the court to believe M.A.759/2008 -7- that notwithstanding the fact that he was maintaining the child properly for all these years, that amount was again paid to the mother of the respondent towards maintenance of the respondent. It is stated that the said amount has been credited to the Bank account of the mother of the respondent. Admittedly recording of satisfaction of the decree has not been insisted and has not been made. If the said amount were paid to satisfy the impugned decree, that plea must be raised in the execution proceedings and cannot obviously be advanced as a ground to set aside the ex parte decree. It is not necessary for this Court to embark on a wild goose chase to find out whether such a payment was made and if at all made what prompted, the appellant to make such payment. 9. The learned counsel for the appellant contends that though the respondent child is illegitimate, he is a doting father and has been looking after all the necessities of the child. The child is so much attached to him and would not speak against him, he contends. He prays that if the appeal be admitted, he M.A.759/2008 -8- would get a chance to interact with his child. Impassioned appeal is made by the learned counsel for the appellant on behalf of the appellant. We must say that we are not impressed at all. If it is the case of the appellant that the respondent is not interested in claiming amounts under the decree, he should simply have insisted that the respondent must be directed to appear before court and examine herself in the execution petition. That has obviously not been done. Execution proceedings are pending before the court below, it is submitted. The appellant can even now request the court to satisfy itself that it is the respondent herself who is choosing to execute the decree and the same is not being done by any one else in the name of the unwilling respondent. But to resolve that controversy, this appeal does not deserve to be admitted. 10. Rhetoric requests are made that the appeal may be admitted to give the appellant who is said to be a person aged about 66 years, an opportunity to meet his daughter and to endeavour to settle the dispute. We are afraid that for that M.A.759/2008 -9- purpose alone this appeal cannot be admitted. We are convinced that there is no merit whatsoever in the applications to set aside the ex parte order and to condone the inordinate delay of about 12 years in filing such application to set aside the ex parte order. The appellant if wants to meet his daughter and settle the disputes, avenues are still available before the executing court and that desire does not justify admission of this Mat Appeal. In any view of the matter, we are satisfied that this appeal does not merit admission. 11. Admission of an appeal cannot be an indulgence on the part of the court. This court must be satisfied that there is a serious point for consideration and the Court requires the assistance of the respondent for resolution of that question/dispute. Without that it is not necessary, and it would be unnecessary and harsh on the part of this Court to extend an unnecessary and undeserved invitation obliging the litigant unnecessarily to come before this Court. This Court cannot be unmindful of the plight of a person who receives such an M.A.759/2008 -10- undeserved and unnecessary invitation to come to this Court obliging him to expend his time and resources unnecessarily. 12. We are satisfied that this appeal is only to be dismissed in limine. We do so. R. BASANT, JUDGE ks. M.C. HARI RANI,JUDGE