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 23RD MAY 2011 / 2ND JYAIHTA 1933 Mat.Appeal.No. 323 of 2011(E) --------------------------------------- OP.303/2005 of FAMILY COURT,TRIVANDRUM .................... APPELLANT(S)/RESPONDENT : -------------------------------------------- RANI EBRAHAM, D/O.K.K.VARGHESE, PATTERI MADATHIL, T.C. 11/1045, WATTS LAND, NANTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S): PETITIONER: -------------------------------------------- SHAJI MATHEW EBRAHAM, PROPRIETOR, KALPAKA TOURIST HOME, NANTHANCODE P.O., NEAR OVER BRIDGE, THIRUVANANTHAPURAM-PIN-695 001. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 23/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ Mat. Appeal No.323 of 2011 ---------------------------------------------- Dated, this the 23rd day of May, 2011 J U D G M E N T K.M.Joseph, J. This appeal is filed against the order passed in I.A.Nos.2200/2009 and 2201/2009 in O.P.No.303/2005 in the Family Court, Thiruvananthapuram. I.A.No.2200/2009 is a petition filed by the respondent in the O.P under Order 9 Rule 13 read with Section 151 CPC to set aside the exparte decree passed against him. I.A.No.2201/2009 is a petition to condone the delay of 786 days in filing the petition to set aside the exparte decree. The court below has deemed it fit to condone the delay and accordingly condoned the delay subject to the following two conditions. “(1) The petitioner herein shall continue to pay interim maintenance awarded to the respondent till the final disposal of the OP and (2) he shall co-operate with the trial and expeditious disposal of the O.P. If the petitioner failed to pay or deposit the interim maintenance awarded to the respondent herein, the respondent is at liberty to file a petition to review and cancel the order passed in these two I.As. It is made clear that if the petitioner in these two I.A s fails to co-operate with the expeditious trial of the O.P without any sufficient cause, he will again be set exparte in the O.P.” MA 323/2011 -2- 2. We heard the learned counsel for the appellant. The learned counsel for the appellant would point out that the inordinate delay of 786 days is not properly explained. It is further contended that even the case of the respondent was that he is not keeping well and he is under treatment. The exparte decree was passed on 12.7.2007. According to the respondent, he was suffering from various diseases and he was having no income as he was in a depressed mood. There is an order to pay arrears of interim maintenance and he could not deposit the same. He relied on Ext.A1 series of medical records evidencing treatment. It is pointed out on behalf of the appellant that the medical records related to the year 2010 and there is no documentary evidence relating to the treatment prior to 2007 till 2010. The Court, thereafter has reasoned that in view of the admission of the respondent/wife that the petitioner has been suffering from various diseases and has undergone an operation for varicose vein, production of document for the previous date is not much fatal. According to the learned counsel for the appellant there is no admission as such in the pleadings. 3. We must remind ourselves that normally the Court MA 323/2011 -3- should lean in favour of adjudicated decisions. We also notice that the Court has not passed an unconditional order. Instead the Court has passed an order subject to conditions which we have already adverted. The Court has also left it free to the appellant to file a petition for review and to cancel the order passed if the respondent herein fails to pay or deposit the interim maintenance awarded. In such circumstances, we see no merit in the appeal and the Matrimonial Appeal is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS