IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 Mat.Appeal.No. 136 of 2007() ---------------------------- OPHMA.146/2005 of FAMILY COURT,KOLLAM .................... PETITIONER(S): APPELLANT/RESPONDENT. ------------------------------------ ULLASANAN @ ULLASAN, S/O.JANARDHANAN, KOCHUVILA PUTHEN VEEDU, MUTHALATHU, ALANCHERRY, EROOR, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, USHA S.BABU, W/O.SURESH BABU, AGED 40 YEARS, RESIDING AT NITHEESH BHAVAN, NAITHODU, POOYAPALLY P.O. BY ADV. SRI.R.SATISH KUMAR RESPONDENT(S): PETITIONER. -------------------------- AMBILI, D/O.THANKAMMA, KODIYIL VEEDU, VELAMANNOOR, KALLUVATHUKKAL VILLAGE. ADV. SRI.V.VENUGOPALAN NAIR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Application No.492 of 2007 & Mat.Appeal No.136 of 2007 ---------------------------------------- Dated this the 23rd day of November 2009 O R D E R & J U D G M E N T Basant,J This application is to condone the delay of 74 days in filing an appeal. The appeal in turn is directed against a decree passed under Section 13 of the Hindu Marriage Act for dissolution of the marriage between the appellant herein and his wife, the respondent herein - the petitioner before the court below. 2. The appellant/petitioner had entered appearance before the Family Court through a power of attorney holder, his brother; but he did not file a counter statement or take part in the proceedings. It is, in these circumstances, that the marriage was dissolved on the ground of cruelty and desertion. No children are born in the wedlock. 3. The short ground urged for condonation of delay of 74 days is that the power of attorney holder did not take necessary steps. Respondent has entered appearance through counsel before this court. No counter statement has been filed. C.M.Appl.No.492/07 &M.A.No.136/07 2 4. We have considered the prayer for condonation of delay. We are not satisfied that sufficient reasons have been shown to justify the prayer for condonation of delay. In our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in any miscarriage or failure of justice, we requested the learned counsel for the appellant to make submissions on facts to explain the nature of challenge against the impugned order. 5. No satisfactory reasons are shown to exist to justify the challenge against the impugned order on merits. On the available evidence, the conclusion of the court below does appear to be eminently reasonable and correct and perhaps the only possible conclusion. The grievance appears to be about the impropriety in setting the petitioner ex parte. The petitioner had the opportunity to apply before the court below to set aside the ex parte order. That option has not been availed of by the petitioner/appellant. 6. In these circumstances, we do not find any merit in the challenge raised in this appeal. We are convinced that our refusal to condone the delay does not result in any failure or miscarriage of justice. The learned counsel for the appellant C.M.Appl.No.492/07 &M.A.No.136/07 3 finally prays that the appellant may now be permitted to avail of his right to get the ex parte order set aside. We are not satisfied that any such reservation of rights need be ordered by us. 7. In the result, the application for condonation of delay is dismissed. Consequently, the Mat.Appeal shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge C.M.Appl.No.492/07 &M.A.No.136/07 4 C.M.Appl.No.492/07 &M.A.No.136/07 5 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009