IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 OP (FC).No. 1771 of 2011(R) -------------------------------------------------- OP.975/2008 of FAMILY COURT,KOLLAM .................... PETITIONERS: -------------------- 1. NARAYANAN, S/O.ACHUTHA WARRIAR, 'PADMALAYAM',CHOVVALLOOR POST,KANDANASSERY VILLAGE THRISSUR DIST 2. SATHIDEVI,D/O.ACHUTHAWARRIER, 'PADMALAYAM',CHOVVALLOOR POST,KANDANASSERY VILLAGE THRISSUR DIST BY ADV. SRI.SREELAL N. WARRIER SRI.C.DILIP RESPONDENT: --------------------- BINDU, D/O.LEELA BAI, 'SREESANTHI' MAITHRI NAGAR, PATTATHANAMCHERRY, VADAKKEVILA, KOLLAM. ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.K.P.SUJESH KUMAR SRI.K.N.SASIDHARAN NAIR SRI.M.SUNIL SMT.BABITHA THAMBI THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN O.P.(FC).NO.1771 OF 2011 R PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORIGINAL PETITION NO.975/2008 DATED 21-10-2008 ON THE FILE OF THE FAMILY COURT, KOLLAM FOR RECOVERY OF GOLD AND MONEY. EXT.P2 TRUE COPY OF ORDER DATED 31.05.2010 IN OP.NO.975/2008 ON THE FILE OF THE FAMILY COURT, KOLLAM. EXT.P3 TRUE COPY OF EXECUTION PETITION NO.4 OF 2011 ON THE FILE OF THE FAMILY COURT, TRISSUR IN OP.NO.975/2008 ON THE FILE OF THE FAMILY COURT, KOLLAM. EXT.P4 TRUE COPY OF IA.NO.1916/2011 DATED 28.5.2011 FOR REVIEW AND TO SET ASIDE EX PARTE ORDER DATED 31.5.2010 IN OP NO.975./2008 ON THE FILE OF THE FAMILY COURT, KOLLAM. EXT.P5 TRUE COPY OF IA.NO.1918/2011 DATED 28.5.2011 TO CONDONE THE DELAY. RESPONDENT'S EXHIBITS: EXT.R1(A) TRUE COPY OF I.A.NO.1172/2010 IN O.P.NO.975/2008 BEFORE THE FAMILY COURT, KOLLAM DATED 26.4.2010. EXT.R1(B) TRUE COPY OF THE B DIARY ON THE FILES OF FAMILY COURT, KOLLAM IN O.P.NO.975/2008. // TRUE COPY// PS TO JUDGE0 K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- O.P.(FC).NO. 1771 OF 2011 R ------------------------------------------ Dated this the 19th July, 2011 JUDGMENT K.M. Joseph, J. This is an Original Petition filed under Article 227 of the Constitution of India. The prayers are as follows: “a) Pass an order directing the Family Court, Kollam to reopen the proceedings in Exhibit P1 Matrimonial O.P.No.975 of 2008 on the file of the Family Court, Kollam, which stands finally disposed of after irregular posting and proceedings in the case without notice resulting denial of opportunity of hearing and violation of principles of natural justice and dispose of the Exhibit P1 petition in accordance with law; b) pass an order directing to dispose of Exhibits P4, P5 & P6 applications within a reasonable time as may be specified by this Honourable Court; c) pass an order staying all further execution proceedings in Exhibit P3 execution petition pursuant O.P.(FC).NO.1771/2011 R 2 to Exhibit P2 order pending final disposal of this Original Petition.” 2. Briefly put, the case of the petitioners is as follows: First petitioner is the husband of the respondent. Second petitioner is the sister of the first petitioner. Among the proceedings which are pending between the parties, O.P.No.975/2008 of Family Court, Kollam was filed by the respondent seeking return of money, gold ornaments and other movable articles. Also, O.P.No.974/2008 was filed for divorce by the respondent. 3. It is stated that both the cases were being posted together all along. The total amount claimed in O.P.No.975/08 was Rs.9,04,700/=. It is stated that both the cases were posted on 08.06.2009 for appearance, the respondents entered appearance and thereafter both the cases were posted on 13.4.2010 and on that day the cases were adjourned to 26.4.2010. As the petitioners did not file counter on 13.4.2010, the court below struck off the O.P.(FC).NO.1771/2011 R 3 defence of the respondents and posted the cases on 26.4.2010 for recording evidence. It is further stated that on 26.4.2010, OP (HMA) 975/2008 was not included in the cause list and the matter was not called and OP (HMA) 974/2008 alone was adjourned to 21.6.2010 for objection and on 26.4.2010 the petitioners filed IA No.1172/2010 to set aside the ex parte order of striking off defence. On enquiry, the petitioners were told by the office of the Court below that the case bundle in OP. No.975/2008 was misplaced and that they will be issued notice on tracing out the file. It is also stated that on 5.3.2011, the petitioners received notice in E.P.No.4/2011 from the Family Court, Thrissur for execution of the order dated 31.5.2010 in OP. No.975/2008. On enquiry by the petitioners, they were told that though there was no specific posting, the case was called on 27.6.2010 and was adjourned to 7.5.2010, on which day, the court below dismissed IA.No.1172/2010 and the matter was adjourned to 12.5.2010, 25.5.2010 and then to 31.5.2010 and on 31.5.2010, the court below O.P.(FC).NO.1771/2011 R 4 by Ext.P2 allowed the Original Petition and the respondent filed Ext.P3 Execution Petition. Thereafter, the petitioners filed Ext.P4 IA purporting to set aside the ex parte decree and Ext.P5 IA for condoning the delay of 257 days and the petitioners are before us. 4. A Counter Affidavit is filed by the respondent wherein it is, inter alia, stated that the averment in the Original Petition that Ext.P2 order was passed by the court below without appreciation of evidence is incorrect. It is further stated that the striking of the defence was perfectly justified in view of the fact that the petitioner did not file objection within the time allotted, nor did he tender any explanation. It is also stated that Ext.R1(a) is the Affidavit filed for setting aside the ex parte order. Ext.R1(b) purports to be the B Diary. 5. We heard the learned counsel appearing for the parties. Learned counsel for the petitioners would submit that the court below was considering OP.Nos.974/2008 and 975/2008 together and they were posted on the same day. Thereafter the cases were O.P.(FC).NO.1771/2011 R 5 posted on 13.4.2010 and on that date they were adjourned to 26.4.2010. The understanding was that OP No.975/2008 also will be called on 26.4.2010. Bu, it was not called on that day. Secondly, he would contend that there is illegality in striking of the defence by the order dated 13.4.2010. According to him, there was no defence filed. It is further pointed out that being a family matter, the court below should not have done what it did and it is further submitted that having regard to the stakes involved, this Court may interfere in the matter. Petitioners would also say that on the merits also they have a very good case. 6. Per contra, learned counsel for the respondent would contend that there is an order passed and no further time was given, going by Ext.R1(b) diary. There was non-compliance with the order to file objection. The court below has inherent power under Section 151 CPS to strike off defence. Whatever that be, there is an order passed. The petitioner filed Ext.R1(a) and it also has been dismissed and these orders are not challenged. Ext.P2 was passed O.P.(FC).NO.1771/2011 R 6 thereafter. According to him, on the one hand, it will attract Order VIII Rule 10 of the CPC and it is a case where Judgment is pronounced for failure to file written statement. When it is pointed to him that this is a case where the matter was adjourned further ultimately to 12.5.2010 and evidence was adduced in the form of Affidavit by the petitioner, he would say, at any rate, this is a case where an order has been passed and there is no challenge to it and, therefore, this Court may not interfere in the matter. According to him, Exts.P4 and P5 are not maintainable and Ext.P2 cannot be treated as an ex parte decree and it is the judgment on the merits of the matter. He would further say that the petitioners have chosen to approach the Court after a delay of one year. He contended that the respondent has a good case on merits. 7. We notice that there is no challenge to Ext.P2. There is also no challenge to the order passed on Ext.R1(a) application. There is no challenge also to the order dated 13.4.2010. However, we feel that at the same time, without expressing any view O.P.(FC).NO.1771/2011 R 7 regarding the maintainability of Ext.P4 application, we should direct the Family Court to take a decision on Ext.P5 which is an application to condone delay. In view of the matter, we direct the Family Court, Kollam to take up Ext.P5 application, hear the counsel for the parties and pass orders on the same within a period of two weeks from 27.7.2011. The parties shall appear before the Family Court on 27.7.2011. Till orders are passed on Ext.P5, the interim order passed by this Court will continue. The Original Petition is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge O.P.(FC).NO.1771/2011 R 8