IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 Mat.Appeal.No. 960 of 2009() ---------------------------- AGAINST THE ORDER DATED 18/09/2009 IN IA 1014/09 IN OP.947/2008 of FAMILY COURT, MALAPPURAM .................... APPELLANT(S): RESPONDENT ------------------------- C.P. HAMZA, S/O. EASA HAJI, CHIRUTHAPARAMBIL HOUSE, ONAPUDA, P.O. KULATHOOR, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.DEVIDAS.U.K RESPONDENT(S): PETITIONER ------------------------- HASEENA, D/O. THAMEEMA, KOOTTIL, POOLAKKALTHODI HOUSE, MANKADA.P.O, MALAPPURAM DISTRICT. ADV. SRI.K.K.MOHAMED RAVUF FOR R1 THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** Mat.Appeal No.960 of 2009 ********************* Dated this the 11th day of June, 2010 JUDGMENT BASANT, J. The appellant herein is aggrieved by the condition imposed by the court below in the impugned order, by which an exparte decree passed against him, obliging him to pay an amount exceeding Rs.4 lakhs, was set aside. 2. The respondent herein is the claimant before the court below. She is none other than the daughter of the appellant. She had claimed amounts from the appellant as her marriage expenses. She is admittedly married. That claim was filed as early as in 2008. Long later when the matter came up for trial in the special list on 05.03.2009, the appellant did not appear. There was no representation for him also. It is, in these circumstances, that the court below set him exparte and on the evidence available proceeded to pass an exparte decree for payment of money. Mat.Appeal No.960 of 2009 2 3. The appellant filed an application to get the exparte order set aside. According to him, he had gone to Trivandrum in connection with his ailment/treatment to a hospital at Trivandrum. That is why he could not attend the court. No explanation was offered as to why the counsel was not informed and necessary application was not filed before court seeking adjournment. Be that as it may, the application was stoutly opposed. It was contended that the averment that the appellant was not available at Malappuram to appear in court on that day and that he had gone to Trivandrum is totally false and incorrect. It was specifically averred that the appellant had manhandled an officer in duty at the Judicial First Class Magistrate Court, Perinthalmanna. He was arrested and remanded in sub jail on that day. 4. When the application to set aside the exparte order came up for hearing, the petitioner did not adduce any evidence. He did not even aver on oath that he was not available in Malappuram district on that day and the allegation about his manhandling an officer on duty in the court and of his being arrested on that day is incorrect or false. Mat.Appeal No.960 of 2009 3 5. The court below in spite of these circumstances indulgently allowed the application to set aside the exparte order subject to conditions. Two conditions were imposed. Firstly the appellant was directed to deposit 20% of the decreetal amount before court. Secondly he was directed to furnish security for the balance amount within a stipulated period of time. 6. The appellant did not comply with either condition. It was, in these circumstances, that on the next date to which the case was posted, the impugned order was passed dismissing the I.A. 7. The learned counsel for the appellant submits that the conditions imposed are harsh and severe. They do not take into account the realities. At any rate, such conditions deserve to be interfered with, contends the counsel. 8. The counsel relies on precedents to contend that harsh conditions should not be imposed. 9. We have considered all the relevant inputs. We take note of the fact that even now there is no material produced whatsoever to show that the appellant had gone to Trivandrum and was not available at Malappuram on that day. Even at the moment there is no denial of the specific allegations that the Mat.Appeal No.960 of 2009 4 appellant was arrested and was remanded to custody on that day. No materials whatsoever have been produced in support of such a theory that he was obliged to go to Trivandrum and was at Trivandrum. 10. We are, in these circumstances, satisfied that the conditions imposed by the court below are absolutely justified and they do not, at any rate, warrant interference. 11. We take note of the fact that the time prescribed for complying with the conditions has now elapsed. We take a lenient view and grant the appellant further time to comply with the conditions. 12. This Mat.Appeal is, in these circumstances, allowed in part. If the appellant complies with the conditions imposed by the court below on or before 12.07.2010, the impugned order shall stand set aside; the petition shall stand allowed and the court below shall dispose of O.P No.947 of 2008 afresh. The matter shall be called before the Family Court on 13.07.2010. If the amount is paid and security furnished as directed, O.P No.947 of 2008 shall be disposed of afresh. If the amount is not paid and security is not offered, the court below shall record that fact and thereupon the impugned order shall survive. Mat.Appeal No.960 of 2009 5 13. We make a further direction that if the amount as directed is deposited, the same shall be retained by the Family Court in fixed deposit with any nationalised bank such that the principal amount along with the interest accrued can be released by the Family Court to the successful party in O.P No.947 of 2008 after final disposal. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/