IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 OP (FC).No. 490 of 2010(R) -------------------------- OP.1049/2009 of FAMILY COURT, THIRUVALLA .................... PETITIONER: ------------------- BINIL KUMAR, AGED 29 YEARS, S/O.ANIRUDHAN, VENGANILKKUNNATHIL HOUSE, KUZHIKALA, MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADV. SRI.V.SETHUNATH SRI.PRAKASH KESAVAN RESPONDENT: --------------- MINIMOL @ MINI ANIL KUMAR, AGED 38 YEARS, D/O.C.G.PURUSHOTHAMAN, CHIRAKKUZHY VEEDU, THALAVADY P.O. & VILLAGE, KUTTANAD TALUK, ALAPPUZHA DISTRICT, PIN - 689 572. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** O.P(F.C) No.490 of 2010 ***************************** Dated this the 4th day of November, 2010 JUDGMENT BASANT, J. O.P.No.1049 of 2009 before the Family Court, Thiruvalla, was filed by the 1st respondent/wife claiming amounts from her husband and mother in law. Both did not appear before the court below. The court below proceeded to pass the impugned exparte order. 2. The petitioner is another son of the mother in law of the claimant, against whom the claim was made. According to him, his mother, ie. the mother in law of the claimant, ie. the 2nd respondent in O.P.No.1049 of 2009, suffers from mental disability. She is unable to defend the claim. He had therefore filed an application to get a next friend appointed to enable the 2nd respondent to effectively defend the claim against her. The court below rejected the same. The petitioner, as the next friend of the 2nd respondent, claims to be aggrieved by the impugned order. Instead of filing either an application under Order IX Rule O.P(F.C) No.490 of 2010 2 13 C.P.C to get the exparte order against the 2nd respondent set aside or filing an appeal under Section 19 of the Family Courts Act as the next friend of the 2nd respondent to assail the impugned order, the petitioner has chosen to file this original petition. 3. After discussions at the Bar, the learned counsel for the petitioner, on being asked as to why the petitioner is resorting to such course, complains that the petitioner does not expect anything better even if the impugned order were sought to be set aside under Order IX Rule 13 C.P.C by the petitioner acting as the guardian of the 2nd respondent. In that event, only the remedy of an appeal under Section 19 of the Family Courts Act may be available to the petitioner as the next friend of the 2nd respondent, it is submitted. 4. We do not want to express any opinion as to what course the petitioner can choose. In any view of the matter we are satisfied that this is not a fit case where the extraordinary constitutional jurisdiction under Article 227 can or ought to be invoked by us. 5. In the result, this Writ Petition is dismissed in limine, making it clear that the dismissal of this petition will not in any O.P(F.C) No.490 of 2010 3 way fetter the rights of the petitioner as the next friend of the 2nd respondent to resort to either of the two courses referred above. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/