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 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).No. 11483 of 2009(R) ------------------------------------- OP.925/2001 of FAMILY COURT,ERNAKULAM .................... PETITIONER(S): --------------------- SUSHAMA K.T. @ SUMA, AGED 37 YEARS, D/O. THANKAPPAN NAIR, THRIKAYIL, 49/14148,KOODANPARAMBU, ELAMAKKARA P.O., PONEKKARA, KOCHI. BY ADV. SMT.T.S.MAYA (THIYADIL) RESPONDENT(S): ------------------------ RAJAN NAIR, AGED 44 YEARS, S/O. KUNJAN NAIR, LAKSHMI NIVAS, AVINISSERRY P.O. OLLUR, TRICHUR, NOW WORKING AT TRANSOCEAN SEDCO FOREX,DRILLING INCORPORATED (INC), SPECTRA BUILDING, IST FLOOR, HIGH STREET, HEERA NANDANI BUSINESS PARK, PAWAI, MUMBAI 400 076. BY ADV. SMT.K.GIRIJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 11483 OF 2009: PETITIONER'S EXHIBITS: EXT.P1. COPY OF ORDER IN OP.925/2001 DATED 1.7.2005 OF THE FAMILY COURT, ERNAKULAM. EXT.P2.COPY OF EP.5/2006 DATED 8.2.2006 OF FAMILY COURT, ERNAKULAM. EXT.P3.COPY OF RD.APPLICATION 121/2007 DATED 12.4.2007 OF BHANDRA FAMILY COURT, MUMBAI. EXT.P4.COPY OF OP.594/2008 DATED 26.4.2008 PENDING BEFORE THE FAMILY COURT, ERNAKULAM. EXT.P5.COPY OF OBJECTION IN OP.925/2001 DATED 8.5.2002. EXT.P6.COPY OF IA.1857/2008 IN OP.925/2001 DATED 26.4.2008 FILED BY THE RESPODNENT AND PETITIONER'S OBJECTION TO THE IA. EXT.P7.COPY OF IA 1858/2008 IN OP.925/2001 DATED 26.4.2008 FILED BY THE RESPONDENT AND PETITIONER'S OBJECTION TO THE IA. EXT.P8.HAND WRITTEN COPY OF THE ORDER WRITTEN IN A DIARY OF FAMILY COURT ERNAKULAM DATED 2.7.2009. EXT.P9.COPY OF APPLICATION AND URGENT PETITION FILED BY THE PETITIONER BEFORE THE FAMILY COURT ERNAKULAM DATED 4.4.09. EXT.P10. TYPED COPY OF THE RELEVANT EXTRACT OF THE ORDER IN IA.1857/2008 & 1858/2008 IN OP.925/2001 DATED 27.3.2009. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ W.P.(C) No.11483 of 2009-R ---------------------------------------------- Dated, this the 4th day of February, 2011 J U D G M E N T K.M.Joseph, J. This writ petition is filed seeking the following reliefs: “A. to call for the records leading to the issuance of order in I.A. 1857/2008 & 1858/2008 in O.P.925/2001 of the Family Court, Ernakulam (produced here as Ext.P8 A Diary Proceedings) and to issue a writ of mandamus, order or direction to set aside the same, and dismiss the I.A.1857/2008 & I.A.1858/2008 filed by the respondent.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is the divorced wife of the respondent. She filed O.P. 925/2001 against the respondent for recovery of money and gold ornaments. She also filed M.C. 178/2001 for maintenance. O.P.651/2002 filed by the respondent for getting a decree of divorce was dismissed for default. O.P.925/2001 was partly allowed by Ext.P1 order. During trial respondent filed objection and cross examined the petitioner and her witnesses. The respondent himself was examined as Rw1. Exts.R2 to R9 were marked. Subsequently he was set exparte. The Court passed Ext.P1 order partly allowing the claim of the petitioner. The respondent wilfully evaded the notices and civil arrest warrants issued in Ext.P2 execution petition. Subsequently, the decree was transferred to Bandra Family Court where the respondent is working and Ext.P3 execution petition was filed by the petitioner before the Bandra Family Court, Mumbai. E.P amount as per Ext.P3 was 2,98,000/-. Respondent's salary was WPC 11483 of 2009 -2- already attached and the petitioner received a sum of Rs.1,44,500/- from the deposited amount. Respondent filed Ext.P4 petition for getting 5 ½ sovereigns which was alleged to be in the custody of the petitioner. Petitioner filed O.P.1442/2005 for getting a decree of divorce and she served the notice to the respondent by affixture. She remarried. It is after 2 ½ years respondent filed Exts.P6 and P7 on 26.4.2008 for setting aside the exparte order and petition to condone the delay of 994 days. Petitioner filed objection. However the Court has allowed the application on payment of cost of Rs.1,000/-. Ext.P10 is the order which is challenged in this writ petition. 3. We heard the learned counsel for the petitioner and learned counsel for the respondent. Learned counsel for the petitioner would point out that absolutely there is no reason to condone the delay. She took us through the affidavit in support of the application to condone the delay of 994 days. She would point out the sequence of events culminating in the attachment of salary of the respondent. She would point out that the respondent had notice earlier. She would point out that vague allegations are made in the affidavit. She would further point out that the certificate issued by the employer would show that the respondent was receiving salary and she would also point out that the respondent would have received notice from the Bandra Court when the matter was transferred to the Bandra Court in 2007. There was no reason to condone the delay, it is WPC 11483 of 2009 -3- submitted. She would also rely on the decision of the Apex Court regarding condonation of delay. 4. Per contra, the learned counsel for the respondent would contend that this is a case where actually evidence has been adduced through Advocate Commissioner by the respondent. Two witnesses were examined including the respondent as Rw-1. She then took us through Ext. P1 order and pointed out that the Court blamed the respondent for not adducing evidence and that it was not aware of the fact that evidence has been adduced on behalf of the respondent and that the Court proceeded to partly decree the OP filed by the petitioner. She would draw our attention to Order 17 Rule 2 explanation of Code of Civil Procedure and point out that in fact the Court actually acted illegally in not exercising its judicial discretion to consider the matter on merits and proceeded to order the matter rendering the respondent exparte. In fact, she would say that when the matter is taken up, no further evidence is required. 5. We must notice certain facts. In Ext.P1 order the Court below has proceeded on the basis that the respondent did not appear in court much less let in evidence in support of his case though the O.P was posted several times for his appearance and evidence. He was lastly set exparte. This is a case where the respondent had adduced evidence by examining Rw1 and Rw 2 in 2004. The counsel for the respondent did not appear on 18.6.2005 and WPC 11483 of 2009 -4- therefore Ext.P1 order is passed on 1.7.2005. We further notice that as admitted the petitioner has already realised a sum of Rs.1,44,500/- from the amount deposited in execution proceedings by the Bandra Family Court, Mumbai. We further notice that this Court on 7.4.2009 while admitting the writ petition had stayed the impugned order, but, directed that the execution proceedings can continue but with the rider that the amounts if realised shall not be released to the petitioner until further orders of this Court. Therefore, this is a case where the petitioner has already realised Rs.1,44,500/- and execution proceedings were continued in terms of order and the execution petition itself has been closed. Of course, the balance amounts has not been released to the petitioner. 6. We must remind ourselves that we are considering this matter under Article 227 of the Constitution. In Article 227 the Court must be satisfied of the existence of jurisdictional error or that the order is perverse order. Having regard to the circumstances which we have already referred to even though it is true that there may have been negligence as noted by the Court itself for which the Court in exercise of the discretion has awarded Rs.1,000/- as costs, while it may be at the lower side we think that in view of the other circumstances we have noted we need not interfere with the order. Accordingly, we dismiss the writ petition. But, we order that the interim order dated 7.4.2009 will continue in so afar as the amounts which have been WPC 11483 of 2009 -5- realised shall not be released to the petitioner or to the respondent and the matter will await the decision to be rendered by the Family Court pursuant to the impugned order and the amount can be disbursed to the petitioner in case she succeeds in the matter subject to any orders which may be obtained by the respondent in appeal. In view of the fact that this is a long pending matter we direct the Family Court to dispose of O.P.925 of 2001 at the earliest and at any rate within a period of three months from the date of production of this judgment Send back the records immediately. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS