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 31ST MAY 2011 / 10TH JYAISHTA 1933 Mat.Appeal.No. 241 of 2010() ---------------------------- OP.584/2007 of FAMILY COURT, KOTTARAKKARA .................... PETITIONER: APPELLANT ------------------------ RAMESAN, AGED 59 YEARS, S/O.SANKARAN, NEDUMPALLI VEEDU, KARIMTHOTTUKARA MURI, SASTHAMKOTTA VILLAGE, KUNNATHOOR TALUK. BY ADV. SRI.T.K.AJAN RESPONDENT: --------------- SOBHANA, AGED 48 YEARS, D/O.LAKSHMIKUTTY, PALLIPURATH VEEDU, THAZHATHU, KOTTARAKKARA TALUK NOW WORKING AS TEACHER, SNUP SCHOOL NANNAMBRA, THEYYALINGOL P.O., THANNUR, MALAPPURAM DISTRICT. ADV. SRI.K.V.ANIL KUMAR FOR R THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, ALONG WITH MA NO.248 OF 2010. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal Nos.241 and 248 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of May, 2011 JUDGMENT K.M. Joseph J., The appellant and the respondent are the husband and wife. The appellant/husband filed O.P. (HMA) No. 584 of 2007 seeking dissolution of marriage. The respondent/wife filed O.P. No. 25 of 2008, which was an O.P. for recovery of gold ornaments as well as the house hold items which were allegedly entrusted by the respondent at the time of their marriage. Joint trial of both the O.Ps' was ordered. It is against the order in O.P.No. 25 of 2008 that Mat.Appeal No.248 of 2010 is filed, while Mat.Appeal No.241 of 2010 is filed against the dismissal of O.P.(HMA) No.584 of 2007. 2. We heard learned counsel for the parties. 3. Learned counsel for the appellant would contend that as Mat. Appeal Nos.241& 248 /10 :2: far as the proof affidavit filed by the respondent in O.P. No. 25 of 2008 is concerned, it was not signed, as required in law, by his wife and therefore the decree granted is illegal. It was further contended that the appellant was denied opportunity to make out his case. 4. As far as the divorce O.P. (No.584 of 2007) is concerned, it is also contended that the appellant was not given an opportunity. 5. In O.P. No. 25 of 2008, we notice that the Court found as follows: “CP had filed O.P. No. 584 of 2007 before this Court for divorce and both these cases were allowed to be tried jointly, following which the petitioner has filed proof affidavit in support of her case. Adv. Santhosh Kumar was deputed by the Legal Services Committee for the CP. But he has submitted that he has no confidence in Advocate so he did not want legal assistance, he will not cross examine the petitioner before the commissioner, but the evidence to be recorded by the court. So both parties were directed to be present on 7.11.2009 and they obliged it. But the petitioner told that she had to leave to Mat. Appeal Nos.241& 248 /10 :3: Malappuram on that day and so the case was adjourned to 5.12.2009. On that day both parties appeared, but CP insisted for examination of the parties by the Court and declined to have legal representation though the Court has offered it. So he was directed to cross examine the petitioner in court but he did not obey. Petitioner was often coming to the Court from Malappuram and on her consent the case was adjourned to 28.12.2009 for her appearance for evidence. On that day both parties appeared but CP submitted that he was not willing to cross examine the petitioner. So he was set exparte.” 6. In O.P. (HMA) 584 of 2007, following is the order passed: “Both parties present. No affidavit is filed by the petitioner. Joint trial of this case along with O.P. No. 25 of 2008 was allowed on 1.8.2009. Though petitioner in that case has filed proof affidavit on that day the petitioner herein declined to cross-examine her and prolonged the matter indefinitely for one reason Mat. Appeal Nos.241& 248 /10 :4: or other. Since no affidavit is filed by this petitioner or adduce any evidence in support of this O.P., it is dismissed.” 7. Learned counsel for the appellant handed over deposition of the respondent in O.P.No. 25 of 2008 and pointed out that it is also not signed in the required pages. Rule 44 of The Civil Rules of Practice, Kerala provides that every affidavit shall state the full name, age, description and place of abode of the deponent, and shall be signed or marked by him. It is also stated that where the affidavit covers more than one page, the deponent shall sign every page. No doubt, we notice that it is a case where the appellant declined service of the lawyer assigned to him and also did not cross examine the witness, as such. 8. Having regard to the nature of the cases, we feel that an opportunity should be given for the appellant in both the cases to substantiate his contention. However, it cannot be an an unconditional decision. Having considered the circumstances and in particular the fact that the property of the appellant has been Mat. Appeal Nos.241& 248 /10 :5: attached in O.P. No. 25 of 2008 we pass the following orders: (i) Mat. Appeal No. 241 of 2010 will stand allowed and O.P. No. 584 of 2007 will be taken back and proceeded with after affording the parties to adduce evidence provided that the appellant will pay a sum of Rs.3,000/- as costs to the learned counsel for the respondent and the receipt produced for the same within a period of 10 days from today. In case the cost is not paid, the appeal will stand dismissed. (ii) Mat. Appeal No. 248 of 2010 will also stand allowed and O.P. No. 25 of 2008 will be restored back and the matter will be proceeded with on condition that the appellant will deposit a sum of Rs.20,000/- towards decretal amount and a sum of Rs.3,000/- as costs. The cost amount is to be paid to the learned counsel for the respondent and receipt produced for the same within a period of 10 days from today. However we give one month's time to the appellant to deposit the sum of Rs.20,000/-. The amount of Rs.20,000/- can be withdrawn only after the adjudication is over. If the amounts are Mat. Appeal Nos.241& 248 /10 :6: paid as aforesaid, the Court will take up both the cases and dispose of them finally before closure of the Court for the Christmas holidays in 2011. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/