IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 RPFC.No. 462 of 2009() -------------------------------- AGAINST THE ORDER IN CMP.841/08 & 842/08 IN MC.496/2006 of FAMILY COURT. .................... REV.PETITIONER /PETITIONER/RESPONDENT ---------------------------- MANKUZHI VALAPPIL, MOHAMMED RAFI, S/O.KUTTYALI, (P.O) KOODALLOOR, (VIA) THRITHALA, OTTAPPALAM TALUK. BY ADV. SMT.K.V.BHADRA KUMARI RESPONDENT(S): RESPONDENTS/PETITIONERS --------------------------- 1. KARINMBANAKKAL SUBAIDA, D/O.IBRAHIM, (P.O) PERASSANNOOR, (VIA) KUTTIPPURAM, MALAPPURAM (DT). 2. RAMESA SHERINE (MINOR) REPRESENTED BY SUBAIDA (MOTHER) KARINMBANAKKAL (P.O) PERASSANNOOR, (VIA) KUTTIPPURAM, MALAPPURAM (DT). BY ADVS. MR.C.V. MANUVILSAN MR. P.G. SURESH MR. NAZER AHAMMED THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MA. NO.12821/2009 IN RPFC. NO.462/2009 DISMISSED 23/03/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NO. 462 OF 2009 = = = = = = = = = = = = = = = Dated this the 23rd day of March, 2010. O R D E R This revision is preferred against the order passed in C.M.P.Nos.841/08 and 842/08 in M.C.496/06 of the Family Court, Malappuram. The maintenance case was filed by the wife and the daughter for maintenance and an exparte order of maintenance was passed by directing the maintenance at the rate of Rs.2,000/- to the wife and Rs.1,500/- to the child. With a delay of 17 months, petitions were filed to condone and set aside the exparte order. The Family Court did not find in favour of the petitioner therein and dismissed those applications. 2. Heard the counsel for both the sides. Learned counsel for the revision petitioner would contend before me that the revision petitioner is only an employee in a hotel at Madras and he did not have the real opportunity to contest the case. On the other hand the counsel for the respondent would contend the present petition to set aside the exparte order is R.P.(F.C.) NO. 462 OF 2009 -:2:- passed only after he was arrested in the execution proceedings that too after almost an year. Now the guiding principles in condoning the delay is given in the decision reported in Collector, Land Acquisition v. Mr.Katiji other others (AIR 1987 SC 1353). It is true that it was a judgment given in a civil case but what should be the approach of the Court is very clearly laid down therein. 3. The Hon'ble Supreme Court held that refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Again it was cautioned that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. A litigant does not stand to benefit by resorting to delay. The Apex Court also observed that it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical R.P.(F.C.) NO. 462 OF 2009 -:3:- grounds but because it is capable of removing injustice and is expected to do so. So bearing in mind these broad principles I feel that an opportunity can be given to the husband to put forth his contentions so that the matter can be disposed of on merits after hearing both the sides. But at the same time the husband has to continue to pay at the rate of Rs.2,200/- as ordered by this Court as an interim measure till a final decision is taken in the matter. 4. In the result, the orders in the CMPs are set aside and also the exparte order is set aside and the matter is remitted back to the Family Court for fresh consideration of the M.C. in accordance with law after affording equal opportunities to both the sides to produce documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. As an interim measure the order of this Court to pay a maintenance at the rate of Rs.2,200/- per month shall continue to be paid till a final decision is taken in the matter. R.P.(F.C.) NO. 462 OF 2009 -:4:- If the husband defaults in making the payment of two consecutive instalments of maintenance then the Family Court is at liberty to strike off the defence and pass appropriate orders. Parties are directed to appear before the Family Court on 26.4.2010. M.N. KRISHNAN, JUDGE. ul/-