IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 Mat.Appeal.No. 755 of 2010(F) ------------------------------------------ [I.A. NO. 6010/2008 IN OP.NO.1628/2007 OF FAMILY COURT,THRISSUR] .................... APPELLANT/PETITIONER IN THE I.A: ----------------------------------------------------- SAHEER, S/O.PANIKKAVEETTIL ABDUL AZEEZ, NATTIKA VILLAGE AND DESOM, CHAVAKKAD TALUK. BY ADV. SRI.K.I.SAGEER IBRAHIM. RESPONDENT/RESPONDENT IN THE I.A: ----------------------------------------------------------- ASMABI, D/O.MUSLIMVEETTIL MUHAMMADALI, POTTUCHIRA DESOM, KARUVANNUR, CHERPU VILLAGE, THRISSUR TALUK, PIN – 680 001. BY ADV. SRI.T.KURIAKOSE PETER. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- CMA No.2291/2010 & MAT Appeal No.755 of 2010 ------------------------------------------- Dated this the 8th December, 2010 ORDER/JUDGMENT Basant, J. This petition is to condone the delay of 540 days in filing a Matrimonial appeal. The matrimonial appeal in turn is directed against the dismissal of an application to set aside an ex parte order. The ex parte order directs partition of an item of property which stands in the joint name of the appellant/husband and respondent/wife. The delay is huge and enormous - 540 days. 2. We have heard the learned counsel for the petitioner. We have perused the affidavit filed by the appellant. We are satisfied that there is no sufficient reason urged by the petitioner/appellant to justify/support the prayer for condonation of the enormous delay of 540 days. The appellant/petitioner who admittedly had knowledge of the pendency of the O.P., the ex parte order therein and the pendency of the petition for condonation of delay has not shown any reason to justify his inaction CMA No.2291/2010 & MAT Appeal No.755 of 2010 2 for a long period of 500 days. We are thus not at all satisfied that the delay deserves to be condoned. 3. In our anxiety to ensure that no failure or miscarriage of justice results from the rejection of the petition for condonation of delay, we requested the learned counsel for the appellant to explain the nature of the challenge which the appellant wants to mount against the impugned order. 4. Fundamental facts are all admitted. The marriage between the spouses/contestants took place on 15.8.2004. The spouses acquired a property under Ext.A1 in their joint names. One child was born in the wed lock. The marital tie was dissolved by mutual consent in 2007. After the divorce, the husband continued to keep possession of the joint property acquired under Ext.A1. In these circumstances, the wife filed the suit for partition before the Family Court as O.P.No.1628 of 2007. 5. The appellant entered appearance before the court below on 24.1.2008. From 24/1/2008, the case was adjourned to 28/3/2008, 14/5/2008, 24/6/2008, 17/7/2008, 17/9/2008 and 17/11/2008. The appellant has not filed any CMA No.2291/2010 & MAT Appeal No.755 of 2010 3 written statement. The court below posted the case to 25.11.2010 for evidence. The evidence was tendered by the respondent/wife. The court below, in these circumstances, proceeded to pass the impugned exparte decree on 29.11.2008. 6. Later, an application was filed by the appellant/husband to set aside the ex parte order. The court below by the impugned order dismissed the application to set aside the ex parte order. 7. The learned counsel for the respondent submits that the appellant has absolutely no valid case to advance. It was an acquisition in the joint names of the spouses. According to the respondent, her ornaments were sold and the entire money for purchase came out of her funds. However, as the acquisition was in the joint names, the respondent did not want to assert exclusive title. Following the mandate of Section 45 of the Transfer of Property Act, the respondent accepted the inevitable and persuaded herself to be satisfied by claiming for herself only half rights in the property. She hence claimed partition and separate possession of her share. The CMA No.2291/2010 & MAT Appeal No.755 of 2010 4 learned counsel for the respondent submits that even assuming that the property was purchased by the husband in the name of the wife benami, presumption must operate that such purchase was for the benefit of the wife. Counsel relies on the provisions of Section 3(2)(a) of the Benami Transactions (Prohibition) Act, 1988 to contend that there must be a presumption that the property was purchased by the husband for the benefit of the wife. In any view of the matter, half rights of the wife cannot possibly be disputed, it is contended. 8. The learned counsel for the appellant was requested to explain why the written statement was not filed. No explanation is forthcoming. It is transparently clear that the written statement was not filed evidently, because there was no worthwhile contention to be raised. At this belated hour, it is impossible and unnecessary to set the clock back and permit the parties to proceed with the contest. We are satisfied that there is absolutely no worthwhile contention to be urged before the court below by the appellant. The appellant obviously is only playing for time. We are satisfied that the dismissal of the CMA No.2291/2010 & MAT Appeal No.755 of 2010 5 application for condonation of delay will not in any way result in failure or miscarriage of justice. 9. The learned counsel for the respondent points out that the final decree proceedings have proceeded much and the matter stands posted to 10.12.2010 for passing orders in the application for passing a final decree. Suffice it to say that having rendered our anxious consideration to all the relevant inputs, we are satisfied that the delay does not deserve to be condoned and the refusal of the prayer for condonation of delay shall not result in any failure or miscarriage of justice. 10. In the result, this petition for condonation of delay is dismissed. Consequently, the Matrimonial Appeal shall stand rejected as barred by limitation. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/