IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Mat.Appeal.No. 559 of 2008() ---------------------------- OP.328/2005 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): PETITIONER: -------------------------- RIJU SARA SAMUEL, AMPAZHATHUM MOOTTIL VEEDU, PUTHENPEEDIKA MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.TITUS MANI SRI.S.SURAJ (PALATHANATHU) RESPONDENT(S): RESPONDENT: -------------------------- 1. JIJI KURIAN, S/O.KURIAN, PATTATHANATHU VEEDU, CHENGALAM VILLAGE, CHENGALAM S.P.O., KOTTAYAM DISTRICT. 2. ALEYAMMA KURIAN, M/O.JIJI KURIAN PATTATHANATHU VEEDU, CHENGALAM VILLAGE, CHENGALAM S.P.O, KOTTAYAM DISTRICT. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A. No. 559 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2008. JUDGMENT Raman, J. This is an appeal arising out of an order passed by the Family Court, Thiruvalla in I.A.Nos.2597/2007 & 2598/2007 in O.P.No.328/3005. The appellant is the petitioner in O.P.No.328/2005 and the connected applications. The main petition was filed for recovery of the amount of Rs.4,30,308/- said to have been entrusted as paternal share, value of gold ornaments and interest. When the case was posted on 24.10.2005, the same was dismissed for default. Thereafter, I.A.No.2384/2005 was filed for restoring the same. Since there was some delay, an application for condonation of delay was also filed. According to the appellant, she was not keeping well and she was laid up with fever on the appointed day. However, no evidence as such was adduced in this regard. It is stated in the order that even when the petition came up for hearing, the appellant was absent. It is on these circumstances that the court below refused to condone the delay and set aside the ex-parte order. 2. We have heard learned counsel for the appellant. Though the MA 559/2008 -2- respondents were served notice, they were not present when the case was taken up. There is no representation either. In these circumstances, we called the respondents' name and declared absent and proceeded to hear the appellant. 3. Admittedly, the petition was filed for return of the amount apportioning the value of the paternal share as also gold ornaments and interest. The appellant has got a case that she was present in the morning, but when the case was taken up in the afternoon, she could not present. However, her counsel was present. She is not a literate person and did not know the procedure in the court and learned counsel submits that she thought that the matter will be posted for evidence and when alone she need be present. Considering the fact that this is a matrimonial dispute for return of the value of paternal share and gold ornaments, and since the case was decided ex-parte, we find that in the fitness of things an opportunity should be given to the appellant, so that there should be an order on merits. However, there was some laches on the part of the appellant in not appearing before the court when the petition itself was posted for hearing. In the circumstances, we allow the appeal on terms. Accordingly, we direct that I.A.Nos.2597/2007 and 2598/2007 will stand allowed the O.P.No.328/2007 is restored to file on condition that the appellant/petitioner MA 559/2008 -3- deposits Rs.500/- within two weeks from today, failing which, this appeal will stand dismissed. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/