IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Mat.Appeal.No. 88 of 2007() --------------------------- AGAINST THE ORDER DATED 13/10/2003 IN IA.57/02 IN OP.789/1998 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT ------------------------ NAZARUDEEN, S/O IBRAHIM, VADAKKEVILAKATH, VEMBAYAM, MANIKKAL, NOW WORKING AT MUSCAT, REPRESENTED BY THE POWER OF ATTORNEY HOLDER SULFI, RESIDING AT VADAKKEVILAKATH THEKKADA, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): --------------- 1. SAINABA BEEVI, VADAKKEVILAKATH, VEMBAYAM, KUTHIRAKULAM P.O., THIRUVANANTHAPURAM. 2. SAJEENA, D/O SAINABA BEEVI, -DO- -DO- (MINOR REPRESENTED BY HER MOTHER SAINABA BEEVI) ADV. SRI.T.A.UNNIKRISHNAN FOR R1-2 SRI.K.SATHEESH KUMAR FOR R1-2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ C.M.Appl.No.366 of 2007 & Mat.Appeal No.88 of 2007 ------------------------------------- Dated this the 17th day of November, 2009 ORDER & JUDGMENT BASANT, J. This petition is to condone the delay of 1051 days in filing a matrimonial appeal. The matrimonial appeal in turn is directed against an order dismissing an application to set aside the exparte order for the reason that the condition imposed has not been honoured. The impugned order is dated 13.10.03 and that only shows that the petition to set aside the exparte order is dismissed for non compliance with the direction to pay/deposit the amount as ordered already in an earlier order. That order has not been produced. 2. We are satisfied that the delay is gross and enormous - 1051 days. A brief reference to the sequence of events may in this context be relevant. In 1999 the claimants - the wife and minor child of the appellant had filed O.P No.789 of 1998 claiming maintenance and an order of injunction restraining the respondent/the appellant herein from forcibly evicting them from their residence. While that O.P was pending, the parties appear C.M.A.No.3362/2009 &M.A No.899/2009 2 to have come to a settlement and the settlement was reported to the court. The appellant had agreed that maintenance shall be paid @ Rs.1,000/- per mensem to the claimants. It was agreed that the matter shall be kept in abeyance for a period of one year. The appellant was employed abroad. He went to his place of employment abroad leaving his power of attorney to conduct the case on his behalf. 3. The matter was advanced and O.P No.789 of 1998 was disposed of by an exparte order dt.30.03.01. Ext.A2 is the copy of the said order. Maintenance was directed to be paid to the claimants - wife and minor child of the appellant, @ Rs.1,000/- and Rs.750/- per mensem respectively from the date of the petition ie. 31.08.1998. An order of permanent injunction was also passed restraining the respondent/the appellant herein from forcibly evicting the petitioners therein from the petition schedule property.4. An application was filed to set aside the said ex parte order. That application was filed with a petition to condone the delay of 276 days in filing the said petition. That petition was disposed of by the learned Judge of the Family Court. A copy of that order is not placed before us. We are informed that the said petition was allowed subject to conditions. C.M.A.No.3362/2009 &M.A No.899/2009 3 The condition imposed was payment of cost. Though the details of the order and the quantum of amount that was directed to be paid cannot be ascertained from the materials available, the said amount was not paid within the stipulated time and it is, thereafter, that the impugned order dated 13/10/2003 has been passed by the Family Court. 5. There is gross and enormous delay in filing this appeal - 1051 days. We are not satisfied that there is satisfactory and sufficient explanation for such delay. The reason urged that the petition was advanced for hearing and that the power of attorney holder of the appellant could not and did not take part in the proceedings and that subsequently the said power of attorney holder expired are all not sufficient or satisfactory reasons to condone the enormous delay of 1051 days in filing this appeal. We must note that the application to set aside the ex parte order was itself filed with an application to condone the delay of 276 days in filing the same. That petition was allowed and obviously the petitioner was represented by counsel at that stage. In any view of the matter, we are not satisfied that sufficient reasons exist to justify the prayer for condonation of the enormous, inordinate and unjustified delay of C.M.A.No.3362/2009 &M.A No.899/2009 4 1051 days. The petition for condonation of delay only deserves to be dismissed. 6. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay, does not, result in miscarriage of justice, 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. That the appellant is employed abroad is not disputed. That his wife and minor children are residing in India is also accepted. The liability to pay maintenance, cannot, in these circumstances, possibly be disputed. There is no contention that the claimants are not unable to maintain themselves. Admittedly, the appellant is employed abroad. In these circumstances, in any view of the matter, the direction to pay an amount of Rs.1,000/- and Rs.750/- per mensum respectively to the claimants - wife and minor child of the appellant cannot be said to result in any failure or miscarriage of justice. 7. The only other relevant direction in the ex parte order passed on 30/03/2001 is that the appellant should not forcibly evict the claimants - wife and minor child from the petition scheduled building. In response to a specific query by us, the C.M.A.No.3362/2009 &M.A No.899/2009 5 learned counsel accepts that the appellant has no intention to forcibly evict the claimants from the petition scheduled property. In these circumstances, we find that there is no worthwhile or valid objection that can possibly be raised against the impugned directions in the judgment dated 30/03/2001. We are satisfied that no failure or miscarriage of justice is likely to occur at the rejection of the prayer for condonation of delay. 8. We are, in these circumstances, satisfied that the petition for condonation of delay deserves to be dismissed. 9. This petition is accordingly dismissed. Mat.A.No.88/07 shall consequently stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge