IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 WP(C).No. 27965 of 2008(S) --------------------------------------- OP.898/2005 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): ------------------------- MARYKUTTY, D/O.JOSEPHINE THYVILAKOM HOUSE VALIYAVELI PO., THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): ------------------------- GEORGE MARKOSE, S/O.GEORGE PRAKRAMOR, KAMBIKKAKAQM HOUSE, VALIYAVELI PO., THIRUVANANTHAPURAM. ADV. SRI.GOPAKUMAR R.THALIYAL SRI.V.MADHURIPAN PILLAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27965/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORIGINAL PETITION NO.898/2005 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENT. P2:- COPY OF THE JUDGMENT DT. 24.3.06 IN OP. 898/05 OF THE FAMILY COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE PETITION ALONG WITH THE AFFIDAVIT FILED IN SUPPORT OF THE SAME SEEKING TO SET ASIDE THE EXPARTE ORDER. P4:- COPY OF THE PETITION ALONG WITH THE AFFIDAVIT TO CONDONE THE DELAY OF 166 DAYS IN FILING THE PETITION FOR SETTING ASIDE EXPARTE DECREE. P5:- COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT. P6:- COPY OF THE PETITION SUPPORTED BY THE AFFIDAVIT OF THE PETITIONER. P7:- COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P6. P8:- COPY OF THE COMMON ORDER DT. 8.7.08 IN IA. NOS. 3454/06 AND 3455/06 IN OP. 898/05 OF THE FAMILY COURT, THIRUVANANTHAPURAM. /TRUE COPY/ P.A. TO JUDGE tss P.R.Raman & T.R. Ramachandran Nair, JJ. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.27965/2008-S ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 25th day of November, 2008. J U D G M E N T Raman, J. The petitioner is the wife. The respondent/husband filed O.P.No.898/2005, before the Family Court, Thiruvananthapuram, against wife and their daughter Shainy as well as his son-in-law Jerald John for an injunction restraining them from committing any waste and also for a mandatory injunction for eviction. The matrimonial tie is not broken. In the main O.P, the parties entered appearance. However, according to the petitioner, there was a compromise talk and the matter was adjourned twice and whileso the petitioner was made to understand that the husband is not going to press the matter. Hence, she did not appear thereafter in the case. But in violation of such assurance, the husband appeared in the case and got an ex parte decree in the case against the wife and other parties. Ext.P2 is the decree passed as per which the petitioner is restrained from committing any waste and also ordered the daughter and son-in-law to give vacant possession of the building. Subsequently, on coming to know of the decree, the petitioner filed an application for setting aside the ex parte decree. Since there was a delay, she also filed a petition for condonation of delay. W.P.(C) No.27965/2008 -:2:- The court below by Ext.P8 order declined to condone the delay and rejected the petition for setting aside the ex parte decree. According to the court below, if there was a compromise between the parties, a compromise petition would have been filed that was not done in the case. Secondly, on the day on which the case was posted, the respondents in the O.P did not appear and hence, there was no alternative but to delcare them ex parte and proceed to pass the decree based on the proof affidavit filed by the husband. The delay was also not condoned since, according to the court below, as a matter of fact, if there was any compromise, the matter could have been informed to the counsel and at any rate the petitioner should have enquired with the counsel about the case. Mere saying that she did not have any knowledge of the decree was not found sufficient reason to condone the delay and to set aside the ex parte decree. Challenging the same, this writ petition is filed. 2. We have heard the parties. 3. It is true that on the appointed day, the petitioner did not appear and the court below passed the decree declaring the respondents ex parte. But at the same time, even from the order Ext.P8 it could be seen that on an earlier occasion when the case was posted it was the consistent stand of the petitioner that there was a compromise talk and the matter was adjourned. Therefore, it is W.P.(C) No.27965/2008 -:3:- not a case put forth for the first time after the decree is passed. There was some talk of a compromise which had been made known to the court below by making a submission in that behalf and the case was also adjourned. The fact that the dispute relates to the matrimonial house and further fact that the matrimonial tie still subsists between the parties, would also support the contention of the petitioner that non-prosecution of the case was not willful, since at no point of time had the petitioner been sent out from the house. During the pendency of the proceedings also she was continuing and today also she is continuing to live there. Further, her right to reside in the matrimonial house is not in dispute so long as the matrimonial tie subsists. True, in the matter of committing any waste, the court below has passed an injunction but so long as the matrimonial tie subsists, the son-in-law and other parties, they cannot be straight-a-way denied the right of visiting the mother. 4. In the above circumstances, unless an opportunity is given to the petitioner to contest the matter, great hardship will be caused. In the interest of justice, we think the appropriate course is to set aside the ex parte decree after condoning the delay so as to give the parties an opportunity to contest the matter on merits. Accordingly, Ext.P8 is set aside. The application for condonation of delay and the petition to set aside the ex parte decree are W.P.(C) No.27965/2008 -:4:- allowed. O.P stands restored to file and the parties shall appear before the Family Court, Thiruvananthapuram, on 08/01/2009. (P.R. Raman, Judge.) (T.R. Ramachandran Nair, Judge.) ms