IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 OP (FC).No. 148 of 2011(R) -------------------------- OP.777/2010 of FAMILY COURT, KOTTAYAM .................... PETITIONER ------------ P.H.MUHAMAD SALIM, S/O. P.O.HASSAN KUTTY, AGED 54, PARAYIL KUNNUMPURATH, KARAPPUZHA P.O., KOTTAYAM VILLAGE, KOTTAYAM DIST., REP. BY POWER OF ATTORNEY HOLDER, TAJUDEEN KOYA, S/O. UMMAR KUNJU, AGED 64, PARAYIL RAHIA COTTAGE, THIRUVATHUKAL, KOTTAYAM, PIN-686 003. BY ADV. SRI.C.S.MANILAL SRI.K.VIDYASAGAR SRI.S.NIDHEESH RESPONDENT: --------------- SHAJILA BEEVI, D/O. LATE NASARUDEEN, AGED 44, PARAYIL KUNNUMPURATH, KARAPPUZHA P.O., KOTTAYAM VILLAGE, KOTTAYAM DISTRICT- 6866003 ADV. SRI.PHILIP T.VARGHESE FOR R SRI.THOMAS T.VARGHESE FOR R SMT.ACHU SUBHA ABRAHAM FOR R THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. (F.C.) No. 148 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of January 2011 JUDGMENT Joseph J., The petitioner approached this Court challenging Ext.P4 order passed by the Family Court. The other prayers sought in the petition are as follows: “(i) Issue appropriate order or direction directing the Family Court, Kottayam to permit the petitioner to adduce evidence and for that purpose grant time till April 2010 in the interest of justice. (ii) Issue appropriate direction directing the Family Court, Kottayam to reopen the evidence in O.P. No. 777 of 2010 and afford opportunity to the petitioner to cross examine the witness of the respondent and to grant effective opportunity thereof in the interest of justice”. O.P. (F.C.) No. 148 of 2011 :2: 2. Briefly put the case of petitioner is as follows. The petitioner is working in Gulf. The petitioner filed O.P. No. 777 of 2010 before the Family Court Kottayam for declaration of his right over the plaint schedule properties and return of gold ornaments. He came down to India on 5.11.2010 and attended the Court for giving evidence. The respondent was set exparte. The evidence was not taken on that day. The petitioner had only two weeks leave from 5.11.2010. On 19.11.2010 he was partly examined. On that day the case was adjourned at the instance of respondent for filing petition to set aside ex-parte order. The case was posted to 29.11.2010. The petitioner left India on 21.11.2010. The petitioner filed Ext.P3 petition seeking two months time for giving evidence. That application was rejected by Ext.P4 order. 3. Ext.P4 order reads as follows. “Heard. The respondent is not amenable to wait. Hence the prayer is rejected and the case adjourned for respondent's evidence to 2.12.2010.” O.P. (F.C.) No. 148 of 2011 :3: 4. There is also a prayer by the petitioner that the petitioner may be given an opportunity to cross examine the witnesses of the respondent, who have been examined. 5. We heard the learned counsel for the petitioner and the learned counsel for the respondent. 6. We take note of the factual circumstances which are pressed before us. We think in such circumstances that it requires an opportunity be given to the petitioner, who is working in Gulf countries to adduce evidence and also to cross examine the witnesses examined on the side of the respondent. 7. Accordingly we set aside the Ext.P4 order and direct that the Family Court Kottayam at Ettumanoor shall proceed to permit the petitioner to cross-examine the witnesses examined on the side of the respondent and also will permit the petitioner to adduce evidence on his behalf. For this purpose we give time to the petitioner till 11.4.2011 and the Family Court shall proceed to take up the matter on a day-to-day basis and to give opportunity to the petitioner to adduce evidence and also to cross-examine the O.P. (F.C.) No. 148 of 2011 :4: witnesses of the respondent. 8. The matter itself shall be finally disposed of at the earliest, at any rate, on or before 31.5.2011. 9. The O.P. (F.C) is disposed as above. K.M. JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/