IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 Mat.Appeal.No. 769 of 2009(G) ---------------------------- OP.366/2007 of FAMILY COURT, MALAPPURAM .................... PETITIONER : --------------- MUHAMMED SHAFI, AGED 30 YEARS, S/O. KAMBARAN KUNHEETHU HAJI, K.K. HOUSE, P.O. KUTTUR NORTH, A.R. NAGAR, MALAPPURAM. BY ADV. SRI.MANJERI S.SUNDER RAJ RESPONDENTS: --------------- 1. NADIYA, AGED 23 YEARS, D/O. ALAVI, ERAMBATHIL KAKKULATHINGAL HOUSE, PUKAYOOR, P.O. OLAKARA, MALAPPURAM. 2. FATHIMA SHERIN (MINOR), AGED 2 YEARS, REP. BY GUARDIAN/MOTHER, 1ST RESPONDENT NADIYA, D/O. ALAVI, ERAMBATHIL, KAKKULATHINGAL HOUSE, PUKAYOOR P.O., OLAKARA, MALAPPURAM. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.2810 of 2009 & Mat.Appeal No.769 of 2009 ------------------------------------- Dated this the 13th day of October, 2009 ORDER/JUDGMENT BASANT, J. This application is to condone the delay of 566 days in filing a Matrimonial Appeal, which appeal in turn challenges an order directing the appellant to pay an amount of Rs.3,20,000/- being the treatment and transportation expenses along with interest for his minor daughter aged 2 years. 2. The delay is gross and we are not satisfied that sufficient reasons have been shown to justify the prayer for condonation of delay. According to the appellant, he was under the impression that his former counsel shall file the appeal. To say the least, the reason stated does not at all satisfy us as sufficient to condone the long and inordinate delay of 566 days. 3. In our anxiety to satisfy ourselves that the refusal to condone the delay does not result in failure or miscarriage of justice, we requested the learned counsel for the appellant to explain the nature of the challenge which he wants to mount against the impugned order. The claim is for an amount of Rs.3 Mat.Appeal No.769 of 2009 2 lakhs incurred for the treatment of the minor daughter of the appellant and an amount of Rs.20,000/- incurred as transportation expenses. 4. Paternity is admitted. That the child was sick is admitted. That the child had undergone treatment including surgery at Sree Chithira Hospital, Thiruvananthapuram is also admitted. That the expenditure claimed has been incurred for treatment is also not disputed. His ability to meet the expenditure is not disputed. 5. What then is the dispute ? The appellant took up a contention that the expenses were incurred and it was he who incurred such expenditure and discharged the liability. The dispute fell in this very narrow compass. PWs 1 to 3 were examined on the side of the claimant and Exts.A1 and A2 series were marked. On the side of the appellant, he examined himself as RW1 and proved Exts.B1 to B5. Ext.X1 series were also marked. 6. The court below came to the conclusion that expenses were incurred as claimed by the claimants and that the amounts were paid by the claimants and not by the appellant herein. On Mat.Appeal No.769 of 2009 3 that finding, the court below proceeded to pass the impugned order. 7. The court below has considered the question in detail. There was significant and total absence of evidence in support of the assertions of the appellant that it was he who met the expenditure for treatment. Of course, certain bills (originals) for expenditure were produced by the appellant. But those amounts are admittedly not claimed by the claimants in the proceedings before the court below. In the total absence of any evidence, the only possible conclusion that the court could have reached is that the expenses covered by Ext.A1 series were all incurred by the claimants and such liability was not discharged by the appellant. Thus we find that the Family Court has not committed any impropriety or incorrectness in passing the impugned order. 8. In this application for condonation of delay, we have chosen to hear the learned counsel for the appellant on merits only to satisfy ourselves that our rejection of the request to condone the delay does not result in any failure/miscarriage of justice. Mat.Appeal No.769 of 2009 4 9. We are not satisfied that it is necessary, in these circumstances, to order notice to the respondent/claimants in this application for condonation of delay. The matter can be disposed of without notice to them. 10. In the result, C.M.Appl.No.2810 of 2009 to condone the delay is dismissed. Consequently the Mat.Appeal shall stand rejected as bared by limitation. 11. The learned counsel for the appellant contends that the Family Court does not grant opportunity to the judgment debtor to raise all relevant contentions against the attempt for execution. If that be so, that grievance is to be raised in appropriate proceedings. That submission does not also persuade us to condone the delay or admit the appeal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-