IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Mat.Appeal.No. 772 of 2010(A) ---------------------------- Order dated 26.04.2010 in I.A.No.665/2010 in O.P.No.927/08 of Family Court, Kozhikode APPELLANT/PETITIONER/RESPONDENT IN OP ------------------------------------------------- T.V.ABDUSALAM, AGED 33 YEARS, S/O.T.V.MUHAMMED, KONATH HOUSE, VADAKKUMPILAKKAL VAZHUR P.O., VAZHUR AMSOM DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENT : RESPONDENT IN IA / PETITIONER IN O.P --------------------------------------------------- K.RAUFIYA, AGED 28 YEARS, D/O.P.K.HUSSAIN, MUTHUVANCHALIL VEEDU, KUNIYIL PARAMB, NALLALAM, KOZHIKODE. ADV. SRI.M.MUHAMMED SHAFI FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2010 ALONG WITH MAT.APPEAL NO.947 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** Mat.Appeal Nos.772 & 947 of 2010 ***************************** Dated this the 16th day of November, 2010 JUDGMENT BASANT, J. The appellant herein is the husband, against whom the respondent herein, his wife, had obtained an exparte order in O.P.No.927 of 2008, pending before the Family Court, Kozhikode. A total amount of above Rs.6 lakhs was ordered to be paid under the exparte order dated 24.02.2009 in O.P.No.927 of 2008. Long later, the appellant/husband filed an application to set aside the exparte order after condoning the delay in filing the same. By separate orders passed on 26.04.2010, the Family Court allowed those applications subject to conditions. The petition for condonation of delay was allowed on condition that the appellant deposits cost of Rs.3,000/-. The petition to set aside the exparte order was allowed on condition that the appellant deposits an amount of Rs.2,000/-. The amounts were not deposited. Accordingly, the court below proceeded to dismiss both the applications. It is against these orders that the present appeals have been filed. Mat.Appeal Nos.772 & 947 of 2010 2 2. As condition to condone the delay in re-presentation of one of the appeals, the entire cost amount of Rs.5,000/- has already been deposited and admittedly received by the respondent herein. The learned counsel for the appellant submits that the delay in compliance with the conditions occurred only on account of reasons beyond the control of the appellant. A lenient view may be taken and these appeals may be allowed and O.P.No.927 of 2008 may be directed to be disposed of afresh on merits, it is prayed. 3. The respondent has entered appearance through a counsel. The learned counsel points out that the exparte order was passed as early as on 24.02.2009 and the impugned orders were passed on 26.04.2010. There is an attempt made to successfully delay and protract the proceedings and avoid payment, it is submitted. 4. We have considered all the relevant inputs. We are satisfied that these appeals can be allowed subject to appropriate terms and conditions. Such conditions must be imposed which would effectively compensate the respondent for the delay in disposal of the claim staked by her against her husband. Mat.Appeal Nos.772 & 947 of 2010 3 5. In the result: a) These appeals are allowed subject to conditions. b) The appeals shall stand allowed; the impugned exparte order in O.P.No.927 of 2008 shall stand set aside and the court below shall dispose of O.P.No.927 of 2008 afresh in accordance with law on or before 30.04.2011 on condition that the appellant deposits a further amount of Rs.5,000/- (Rupees Five thousand only) as cost payable to the respondent before the court below on or before 30.11.2010. c) O.P.No.927 of 2008 shall be called before the Family Court again on 01.12.2010. If the amount of Rs.5,000/- is paid, the court below shall proceed to dispose of O.P.No.927 of 2008 afresh in accordance with law as expeditiously as possible, at any rate, before 30.04.2011. If the amount is not paid, the Family Court shall record that fact on 01.12.2010 and thereupon the impugned exparte order shall continue to remain in force. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ Mat.Appeal Nos.772 & 947 of 2010 4 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** C.M.Appl.No.3071 of 2010 in Mat.Appeal Nos.772 & 947 of 2010 5 Mat.Appeal No.947 of 2010 ***************************** Dated this the 16th day of November, 2010 ORDER BASANT, J. This application is to condone the delay of 3 days in filing the appeal. The respondent has entered appearance. Heard. Allowed. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ Mat.Appeal Nos.772 & 947 of 2010 6 R.BASANT & K.SURENDRA MOHAN, JJ. *********************** C.M.Appl.No.3033 of 2010 in Unnumbered Mat.Appeal of 2010 ***************************** Dated this the 16th day of November, 2010 ORDER BASANT, J. Mat.Appeal Nos.772 & 947 of 2010 7 Re-presentation delay is condoned. Number the appeal and the petitions. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/