IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 Mat.Appeal.No. 261 of 2011() ---------------------------- OP.517/2006 of FAMILY COURT, NEDUMANGAD .................... PETITIONER(S): PETITIONERS -------------------------- 1. SUMA,AGED 44 YEARS,D/O.PADMANABHAN, RESIDING AT GOPALAYAM,VALIYAKADA,CHIRAYINKEEZHU DESOM,SARKARA VILLAGE. 2. JASMINE,AGED 18 YEARS,D/O.GOPALAKRISHNAN RESIDING AT -DO- , -DO- BY ADV. SRI.SHAJIN S.HAMEED RESPONDENT(S): RESPONDENT ------------------------- GOPALAKRISHNAN,AGED 56 YEARS, S/O.SADASIVAN,PANDAKASALA MANIKANTA HOTEL, CHIRAYINKEEZHU DESOM,SARKARA VILLAGE,RESIDING FROM KOCHU BUNGLOW,PANDAKASALA,KURUNTHAKADAVU, CHIRAYINKEEZHU DESOM,CHIRAYINKEEZHU VILLAGE, PIN-695033. ADV. SRI.V.G.ARUN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2011, ALONG WITH MA NO. 403 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Mat.Appeal Nos.261 and 403 of 2011 ----------------------------------------------- Dated 1st July, 2011. J U D G M E N T Joseph, J. Mat.Appeal 403/11 is filed by the husband of the respondent in the appeal, against the order passed in O.P.1092/2008. In the connected appeal, M.A.261/2011, the wife and daughter are the appellants and they challenge the common judgment in O.P.517/06. 2. O.P.517/06 is filed by the wife and daughter, seeking return of gold ornaments and money. O.P.1092/08 is filed by the husband, seeking declaration of title. According to the appellants in Mat.Appeal 261/11, the matter was posted for evidence. The wife gave proof affidavit on 28.11.2007 and an Advocate Commissioner was appointed. The Family Court, it is stated, noticing that the parties and the Advocate Commissioner are not cooperating, finally decided to entrust the matter to another Advocate Commissioner. Thereafter, the said Advocate Commissioner has filed a memo stating that the parties are not co-operating and on the strength of the same, the Original Petitions referred to above, filed by the parties, Mat.Appeal 261 & 403 of 2011 2 have been dismissed for default. 3. According to the learned counsel for the appellants in both the cases, the court below should not have dismissed the Original Petitions. Learned counsel for the appellant in Mat.Appeal 403/11 would attempt to take exception to certain remarks made against the advocates. It is pointed out that in the memo filed by the Advocate Commissioner, actually, the wife is blamed. 4. Learned counsel for the appellant in Mat.Appeal 261/11 would point out that there was some difficulty for the appellant to pay the commission batta again, after having paid batta in respect of first commissioner. 5. However, both parties would agree that they are agreeable to have the cases tried and that they will co-operate fully. Learned counsel would submit that the appellants in both cases will share the batta for the Advocate Commissioner. In the light of the above, we set aside the impugned judgment and direct that the cases will be restored to file and proceeded with the same Advocate Commissioner Smt.Sangeetha Raj, provided Mat.Appeal 261 & 403 of 2011 3 she is willing. The Mat.Appeals are disposed of as above. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. TO JUDGE.