IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 WP(C).No. 8483 of 2010(R) ------------------------------------ OP.1080/2005 of FAMILY COURT, NEDUMANGAD .................... PETITIONER(S): ---------------------- SUDARSANAN, S/O.GOVINDAN, AGED YEARS, THEKKEVILA HOUSE, MUDAPURAM, KIZHUVILLAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENT(S): ------------------------- 1. JALAJA, W/O.SUDARSANAN, PLAVILA HOUSE, PAPPALA, KILIMANOOR, THIRUVANANTHAPURAM DISTRICT. 2. DHRISYA, MINOR, DAUGHTER OF SUDARSANAN, PLAVILA HOUSE, PAPPALA, KILIMANOOR, THIRUVANANTHAPURAM DISTRICT (MINOR 2ND RESPONDENT IS REPRESENTED BY HER MOTHER WHO IS HER NEXT FRIEND AND GUARDIAN). BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.8483 OF 2010: PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF IA.654/2009 IN OP.1080/2005 TO SET ASIDE THE EXPARTE DECREE. EXT.P2.TRUE COPY OF THE EP 22/2009 IN OP.1080/2005 OF FAMILY COURT, NEDUMANGADU. EXT.P3.TRUE COPY OF THE IA 2516/2009 IN IA.654/2009 IN OP.1080/2005 OF FAMILY COURT, NEDUMANGADU. EXT.P4.TRUE COPY OF THE ORDER DATED 25.9.2009 IN IA.2516/2009 IN IA.654/2009 IN OP.1080/2005 OF FAMILY COURT, NEDUMANGADU. EXT.P5. TRUE COPY OF THE OP.1080/05 OF FAMILY COURT, THIRUVANANTHAPURAM. EXT.P6.TRUE COPY OF THE EXPARTE DECREE IN OP.1080/2005 OF FAMILY COURT, THIRUVANANTHAPURAM. K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- W.P.( C) No.8483 of 2010-R ----------------------------------------- Dated, this the 21st day of November, 2011 J U D G M E N T K.M.Joseph, J. Petitioner has approached this Court under Article 227 of the Constitution seeking the following prayers. “1. Issue a writ in the nature of Certiorari or any other appropriate writ, direction or order calling for the records leading to the order dated 23/09/2009 in I.A.2516/2009 in I.A.654/2009 in O.P.No.1080/2005 on the file of the Family Court Nedumangadu quashing the same to the extent the same imposed a condition to pay Rs.1,40,000/- for allowing the petition as well as Exhibit P4 Order (Order dated 25/09/2009 in I.A.2516/2009 in I.A.654/2009 in O.P.1080/2005). ii. Direct the Family Court Nedumangadu to dispose off Exhibit P1 (I.A. No.654/2009 in O.P.1080/2005) and the petition to condone the delay in filing the same as expeditiously as possible, at any rate within a time frame to be fixed by this Hon'ble Court and till then stay all further proceedings in E.P.22/2009 in O.P.1080/2005 of Family Court, Nedumangadu.” 2. Briefly put, the case of the petitioner is as follows. Petitioner is the respondent in O.P.1080/2005. The said petition is filed by his wife and daughter who are the respondents herein WPC 8483/2010 -2- seeking maintenance, return of value of gold ornaments etc. The case was posted for settlement and the same was in principle settled for Rs.70,000/-. Since the respondents insisted for immediate payment the settlement could not work out. The petitioner was suffering from acute diabetes and his condition worsened. In the meanwhile, the petitioner was set exparte and exparte decree was passed on 6.8.2007. The respondents were allowed to recover Rs.750/- each and Rs.1,21,600/- being the value of gold ornaments. Because of the health condition he was unable to go out of his house. When the health condition improved he met his lawyer and he came to know about the exparte decree. Immediately he filed Ext.P1 (I.A.654/2009) with a petition to condone the delay. In the meanwhile Ext.P2 E.P. was filed. Since the Court was proceeding with, petitioner filed Ext.P3 application for staying the proceedings till the disposal of I.A.654/2009. That application was allowed on 23.9.2009 on payment of Rs.1,40,000/- towards maintenance due to the respondent wife and the I.A was adjourned to 25.9.2009. On 25.9.2009 the decree holder was present and judgment debtor was absent. There was no representation and no payment was WPC 8483/2010 -3- made. Hence the I.A was dismissed for default of the petitioner. 3. We called for a report from the Family Court, Nedumangad. Following is the report. “..........IA 653/09 was filed for setting aside the ex-parte order and IA 654/09 was filed to condone the delay in filing IA 653/09. On 04.08.09 IA 654/09 was allowed on condition that the petitioner will deposit Rs.1,40,500/- on or before 07.09.09. Since no payment was made, my predecessor had dismissed the above IAs on that ground on 07.09.2009.” 4. We heard the learned counsel for the parties. There are two prayers in the petition. Taking the 2nd prayer first, the direction was to dispose of IA 654/2009 and the petition to condone the delay in filing the I.A. There is not much dispute that the said IA has already been disposed. Therefore, the said prayer does not survive. The first prayer is challenging Ext.P4 order. Ext.P4 is the order passed on Ext.P3. Ext.P3 is a petition seeking stay of proceedings till disposal of IA 654/2009. We noted that the petitioner had filed application for setting aside the exparte order with petition to condone delay. The application to condone delay was allowed subject to the petitioner depositing certain sums. It would appear that the amount was not deposited. Consequently, WPC 8483/2010 -4- the application to set aside the exparte decree was rejected. If that is so, the first prayer also may not survive. In such circumstances, we see no reason to keep this writ petition alive. The Writ Petition (Civil) is dismissed without prejudice to the rights available to the petitioner. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS