IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 RPFC.No. 133 of 2011() ---------------------- CMP NO.980/2009 IN MC.25/2009 OF THE FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- MATTIL HANEEF, AGED 41 YEARS, S/O.SAIDALAVI, KARUTHOMATTIL HOUSE,EAST BAZAR, TIRURANGADI PO, MALAPPURAM DISTRICT. BY ADV. SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): PETITIONERS -------------------------- 1. HASEENA KUTTASSERI,D/O.VEERANKUTTY, KUTTASERI HOUSE,CHEMRAKATTOOR PO, AREACODE,MALAPPURAM DISTRICT. 2. MUHAMMED AFLAH(MINOR),AGED 10 YEARS - 676 110. 3. MUHAMMED THAMEEM(MINOR),AGED 8 YEARS, (MINORS REPRESENTED BY MOTHER-GUARDIAN, IST RESPONDENT) 676 110. ADV. SRI.P.SAMSUDIN FOR RESPONDENTS. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- R.P(FC) 133 of 2011 ---------------------------------------- Dated the 21st day of June, 2011 ORDER The above R.P.(F.C) is preferred at the instance of the counter petitioner in M.C.No.25/2009 of the Family Court, Malappuram, mainly aggrieved by the order dated 20.10.2009 in CMP No. 980/2009 in MC No.25/2009 as he failed to comply with the condition imposed by the court below to set aside the ex parte order passed by the very same court under section 125 Cr.P.C. 2. Heard the counsel for the petitioner and I have also perused the order impugned and other materials made available to me. 3. The learned counsel for the petitioner vehemently submitted that when the order dated 20.10.2009 was passed, only ten days time was granted to deposit the amount and the power of attorney holder of the revision petitioner, namely, Suharabi, D/o.Saithalavi, was not in a position to raise the amount within such short time and she could not appear before the court below since her husband RPFC 133/11 -:2:- died on 5.12/2009. 4. I am unable to accept the above contention. The petitioner herein was set ex parte in M.C.No.25/2009, which is a proceedings instituted under section 125 Cr.P.C. in the Family court, Malappuram at the instance of the wife and children of the revision petitioner. The counsel for the petitioner submitted that the revision petitioner had appeared before the court below and filed counter. But there is nothing discernible from the order dated 8.6.2009 of the Family Court in M.C. 25/2009 to that effect. However, it is a fact that the Family Court has allowed the petition, directing the revision petitioner herein, to pay maintenance at the rate of Rs.2000/- to the first claimant wife and at the rate of Rs.1000/- and 800/- respectively in favour of the claimants 2 and 3 but such order was passed without hearing the petitioner. Subsequently, CMP No.980/2009 was filed in M.C.No.25/2009 with a prayer to set aside the ex parte order dated 8.6.2009. According to the Family court, as there is no evidence adduced and as there is no merit in the CMP, it is liable to be dismissed, but ordered that the ex parte order shall be set aside on deposit of cost of Rs.7000/- due to the petitioner on or RPFC 133/11 -:3:- before 12 noon on 30.10.2009 failing which, the said petition shall be dismissed. Accordingly, the petition was adjourned to 30.10.2009, on which date, the petition to set aside the ex parte order was dismissed as there was no payment. Now the counsel for the petitioner submits that as a last chance, the petitioner may be permitted to deposit the amount and to have a decision on merit in M.C.No.25 of 2009. 5. From the facts stated above, it can be seen that, as per the ex parte order the petitioner is directed to pay a total sum of Rs.3800/- being the monthly maintenance to the claimants and the attempt of the petitioner to set aside the ex parte order was failed as he could not deposit the cost fixed by this court in time . As the liability to pay, maintenance fixed on the basis of ex parte order, I am of the view that the petitioner can be granted one more opportunity to contest the matter on merit but on terms. 6. In this juncture it is relevant to note that there is no dispute regarding the marriage between the revision petitioner and the first claimant and also no dispute with respect to the paternity of the other claimants. The petitioner is admittedly working abroad. The reasons RPFC 133/11 -:4:- stated for not depositing the cost in terms of the order issued by the Family Court on 20.10.2009 is not appealable, since even though the husband of the power of attorney holder of the petitioner expired, the revision petitioner as well as the power of attorney holder was represented through counsel and the counsel could have appeared and deposited the amount and could have taken appropriate steps. As the petitioner is working abroad, it cannot be believed that there was financial crisis to deposit the amount. It is also a fact that though the claimants approached the family court by filing the M.C dated 8.1.2009, so far no amount is seen paid as per the records. Under the above circumstances, according to me, this Crl.R.P. can be disposed of giving one more opportunity to the petitioner but subject to strict terms. In the result, this revision petition is disposed of setting aside the order dated 20.10.2009 in CMP No.980/09 in M.C.No.25/2009 of the Family Court, Malappuram, on condition that the petitioner deposits a sum of Rs.10,000/- in the Family Court, within one month from today and on further condition that he shall deposit the entire arrears as on today, within another one month from RPFC 133/11 -:5:- the date of remittance of Rs.10,000/- as directed above. On deposit of Rs.10,000/- as directed above, the Family court, Malappuram is directed to restore CMP No.980/2009 and to proceed with the same in accordance with merit and to pass appropriate orders and in case of setting aside the order, to proceed to hear MC 25/2009 in accordance with law and procedure. The learned Judge of the Family court, Malappuram is free to dispose of the arrears which will be deposited by the petitioner, either by way of interim measure or as final as the case may be, which will be subject to the outcome in CMP No.980/2009 or upon the proceedings in M.C.No.25/2009. On deposit of Rs.10,000/- the respondents herein, who are the claimants, are free to withdraw the same and on an application in this regard, the learned Family court is directed to release the same as expeditiously as possible. This RPFC is disposed of accordingly, V.K.MOHANAN, JUDGE kvm/- RPFC 133/11 -:6:- kvm/-