IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP (FC).No. 633 of 2011(R) -------------------------- AGAINST THE ORDER DATED 27/12/2010 IN IA 3530/2010 IN OP.1073/2009 of FAMILY COURT, KOTTAYAM .................... PETITIONER -------------------- ANIYAMMA VARKEY, AGED 63 YEARS, W/O.K.V. VARKEY, KOKKATTU HOUSE, ARPOOKARA EAST.P.O, KOTTAYAM-8. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------------ 1. LITINA JIJO, AGED 37 YEARS, W/O. JIJO, KOMBANAL HOUSE, THODUPUZHA.P.O, IDUKKI DISTRICT - 685 584. 2. JIJO VARGHESE, AGED 40 YEARS, S/O.K.V. VARKEY, KOMBANAL HOUSE, THODUPUZHA.P.O, IDUKKI DISTRICT - 685 584. ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.S.ASHOK KUMAR. SRI.M.B.SANDEEP SMT.P.T.RAZEENA THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb OP (FC).No. 633 of 2011 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF THE PLAINT IN O.P.NO.1073 OF 2009 PF THE FAMILY COURT, KOTTAYAM DTD 29.10.2009 EXT.P2:- COPY OF THE OBJECTION FIELD BY THE PETITIONER IN O.P.NO.1073/2009 EXT.P3:- COPY OF THE JUDGMENT DTD 11.2.2010 IN O.P.NO.1073/2009 EXT.P4:- COPY OF THE I.A.NO.3530 OF 2010 IN O.P.NO.1073 OF 2009 DTD 21.12.2010 EXT.P5:- COPY OF THE ORDER DATED 27.12.2010 IN I.A.NO.3530 OF 2010 IN O.P.NO.1073/2009 RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A TO JUDGE dmb THOTTATHIL B.RADHAKRISHNAN & N.K.BALAKRISHNAN, JJ. ---------------------------------- OP(FC) No. 633 OF 2011 --------------------------------------------- Dated this the 11th day of July, 2011 J U D G M E N T THOTTATHIL B.RADHAKRISHNAN,J. Notwithstanding the earlier orders, we are the view that the presence of the second respondent, who is the first defendant in the suit, is not necessary for the purpose of relief sought for in this original petition. Notice to the second respondent herein is therefore dispensed with. 2. The petitioner is the second defendant in the O.P filed by her daughter-in-law before the Family Court. The wife sued the husband and his mother for recovery of amounts under different heads. There was an ex-parte decree. That was set aside at the instance of the mother-in-law. The matter was then posted to 21.10.2010 for cross examination of PW1. The matter was then adjourned to 13.12.2010 and 30.12.2010 since the Advocate appearing for the husband's mother was suffering from Chicken Pox and he ultimately relinquished engagement. The OP(FC) No. 633 OF 2011 2 mother-in-law applied to re-open the evidence for cross examining PW1. That is dismissed on 27.12.2010 by saying that several chances were given and PW1 was present on several postings. This is under challenge. 3. We need to note that the husband does not contest the litigation. The mother-in-law is trying to save her property from the clutches of the litigation on the plea that she needs her property. As already noted, after the ex-parte decree was set aside on 21.10.2010 there were only three postings, of which two went on the ground that the counsel had fallen sick. Under such circumstances, we are of the view that the impugned Ext.P5 order results in manifest miscarriage of justice in the course of trial of proceedings filed seeking recovery of Rs.24,57,500/- with interest. We may also note that the couple is not separated. We are of the view that it is highly necessary in the interest of justice that the petitioner before us is given an opportunity to contest the case including by cross examining PW1. We accordingly set aside the impugned Ext.P5 order and direct the parties to mark their appearance before the court below on OP(FC) No. 633 OF 2011 3 25.07.2011, so that PW1 can be cross-examined on such date, that may be fixed by the Family Court. Further proceedings would be completed without delay. The O.P ordered accordingly. THOTTATHIL B.RADHAKRISHNAN JUDGE. N.K.BALAKRISHNAN JUDGE dmb