IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 W.P.(C).No. 15371 of 2009 (R) ----------------------------------------- AGAINST THE ORDER DATED 30/04/2009 IN 937/05 IN CMP 707/2004 OF FAMILY COURT, KOZHIKODE .................... PETITIONER: ------------------- M.V.UNNIKRISHNAN, S/O.GOPALAN, MEETHALA VALAPPIL HOUSE, P.O.EDAKKAD, EDAKKAD DESOM, KANNOOR DISTRICT. BY ADV. SRI.RAJESH P.NAIR RESPONDENTS: ---------------------- 1. K.P.SHEEJA, D/O.SREENIVASAN, KAKKADATH PALAT HOUSE, BEYPORE NORTH P.O., KOZHIKODE. 2. SAYOOJ, (MINOR), 7 YEARS REPRESENTED BY IST RESPONDENT. ADV. SRI.V.V.SURENDRAN FOR R1 & 2 SRI.P.A.HARISH FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 15371 of 2009 (R) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: A true photocopy of the deposition made by the 1st respondent before the Family Court, Kozhikode. Ext.P2: The true photocopy of the judgment of this Honourable Court in W.P. (C)2450/09 dated 2.2.2009. Ext.P3: The true photocopy of the medical certificate issued by Dr.K.N.Balakrishnan. Ext.P4: The true photocopy of the affidavit filed by the petitioner before the court. Ext.P5: The true photocopy of the order dated 30-4-2009 in CMP 227/09 dismissing the petition. Ext.P6: The true photocopy of the order in CMP 228/09. // True copy // Jes P.A. to Judge A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.15371 OF 2009 - R - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2009 JUDGMENT Basheer, J: Petitioner is the former husband of respondent No.1 and the father of respondent No.2. 2. Initially, in a proceeding under Section 125 of the Code of Criminal Procedure, petitioner was directed to pay maintenance to the respondents at the rate of Rs.500 and 300 respectively. Later, on an application filed by the wife and child, maintenance amount was enhanced to Rs.3,000/- each payable with effect from June 2, 2004. 3. Admittedly, in the said proceedings petitioner remained absent and he was set ex parte. Though he filed C.M.P.937/05 to set aside the ex parte order, it was dismissed for default on August 13, 2007. 4. When the maintenance award was sought to be executed, he filed W.P.(C)No.2450/09 before this court challenging the order of enhancement of maintenance. The writ petition was disposed of W.P.(C)No.15371 OF 2009 - R :: 2 :: giving liberty to the petitioner to seek other appropriate remedies before the family court itself. 5. Thereafter, petitioner filed CMP 228/09 to restore the application to set aside the ex parte order. This application was supported by CMP 227/09 to condone the delay of 524 days in filing the restoration petition. 6. The court below, after hearing the parties and considering the entire aspects of the case, held that the petitioner had failed to give a satisfactory explanation for the inordinate delay. Therefore, the delay petition was dismissed and consequently the petition for restoration also ended in dismissal. The above orders (Exts.P5 and P6) are under challenge in this petition filed under Article 227 of the Constitution of India. 7. We have heard learned counsel for the parties and perused the materials available on record. As rightly noticed by the Family court, petitioner could not give any valid reason or explanation for the long delay of 524 days in filing the restoration application. Though he had produced Ext.P3, medical certificate issued by an Ayurveda physician, no W.P.(C)No.15371 OF 2009 - R :: 3 :: corroborative evidence was adduced by him. The doctor was not examined. The contention of the petitioner was that he was suffering from rheumatic complaints, back pain and hyper tension. But in the absence of any satisfactory and corroborative evidence, the court below did not accept the above explanation. 8. Learned counsel for the respondent/wife submits that as on today a sum of Rs.3,51,000/- (approximately) is due from the petitioner, towards maintenance. His immovable property is ordered to be sold. But the sale did not take place and it stands adjourned to another date. 9. Having carefully perused the materials available on record and having regard to the peculiar facts and circumstances of the case, we are of the view that petitioner can be granted an opportunity to contest the case on merits, but of course, on terms. 10. The restoration application C.M.P.No.228/09 on the file of the Family Court, Kozhikode shall stand allowed ignoring the delay on condition that the petitioner deposits a sum of Rs.75,000/- before the court below on or before August 31, 2009. W.P.(C)No.15371 OF 2009 - R :: 4 :: 11. If the petitioner fails to remit the said sum before the court below as directed above, this writ petition shall stand dismissed. The amount, if any, deposited by the petitioner shall be disbursed to the respondents. 12. It will be open to the court below to pass appropriate interim orders with regard to the pending execution proceedings as it deems fit. The court below shall dispose of C.M.P.No.707/04 as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. (A.K.BASHEER, JUDGE) (P.S.GOPINATHAN, JUDGE) jes