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 6TH JULY 2010 / 15TH ASHADHA 1932 Mat.Appeal.No. 996 of 2009(B) ---------------------------- AGAINST THE ORDER IN IA 2654/2009 IN OP.898/2008 of FAMILY COURT, THIRUVALLA .................... APPELLANTS/PETITIONERS/RESPONDENTS ------------------------------------------------- 1. NARENDRANATH,AGD 33 YEARS, S/O.MUKUNDAN MENON,PRARDHANA VEEDU,WARD NO.21, ALUVAL MUNICIPALITY,ERNAKULAM DISTRICT. 2. MUKUNDHAN.C.MENON,PRARDHANA VEEDU, WARD NO.21,ALUVAL MUNICIPALITY, ERNAKULAM DISTRICT. 3. INDIRA MENON,W/O.MUKUNDAN C.MENON, PRARDHANA VEEDU,WARD NO.21,ALUVA MUNICIPALITY, ERNAKULAM DISTRICT. BY ADV. SRI.P.HARIDAS RESPONDENT : PETITIONER ------------------------- NEETHU,AGED 24 YEARS,W/O.NARENDRANATH, ANANDA BHAVAN,ITHALA.P.O,MANKUZHI MURI, PAZHAVANGADI VILLAGE,RANNY TALUK. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** Mat.Appeal No.996 of 2009 ********************* Dated this the 6th day of July, 2010 JUDGMENT BASANT, J. The appellants herein are the respondents in O.P.No.898 of 2008 pending before the Family Court, Thiruvalla. That petition was filed by the respondent herein, ie. the wife of the 1st appellant and the daughter in law of appellants 2 and 3. That was a claim for payment of money. The 2nd and 3rd appellants appeared initially; the 1st appellant did not. He was set exparte. Subsequently appellant Nos.2 and 3 also were set exparte. They had not filed written statement within the time stipulated. Later they filed an application to set aside the exparte order. it was allowed on condition that an amount of Rs.1,000/- be paid. That amount was not paid within time and extension of time was sought. Extension of time was granted on condition that a further amount of Rs.500/- is paid. Even that was not paid. Instead of a total amount of Rs.1,500/- which was payable even admittedly, only an amount of Rs.500/- was paid. The court below, in these circumstances, dismissed the application to set aside the exparte order. Mat.Appeal No.996 of 2009 2 2. The appellants claim to be aggrieved by the impugned orders. Respondent has been served, but has not entered appearance before us in this appeal. We have gone through the report dated 02.07.2010 submitted by the learned Judge of the Family Court in response to our directions. 3. Having considered all the relevant circumstances, we are persuaded to agree that the Family Court was constrained to set the appellants exparte and later dismiss the application to set aside the exparte order. The court below evidently felt that there was a ploy to protract and prolong the proceedings and it is, in these circumstances, the court below directed payment of costs and later proceeded to dismiss the application to set aside the exparte order in view of non payment. 4. Admittedly O.P.No.898 of 2008 has not been disposed of yet. The evidence of PW1, the wife/claimant has been recorded. In view of the order of stay passed by us, the matter has not been finally disposed of. 5. Though we are convinced that there was contumacious lethargy and non co-operation on the part of the appellants in the proper, prompt and early disposal of O.P.No.898 of 2009, we are satisfied that a lenient view can be Mat.Appeal No.996 of 2009 3 taken and this appeal can be allowed subject of course to appropriate conditions which shall compensate the respondent adequately for the unnecessary delay in the disposal of the matter. 6. In the result: a) This appeal is allowed subject to conditions; b) The impugned orders ie. orders dated 11.11.2009 in I.A.Nos.2651 of 2009 and 2654 of 2009 shall stand set aside, the order setting the appellants ex parte shall be set aside and O.P.No.898 of 2008 shall be disposed of in accordance with law by the Family Court on condition that the appellants pay to the respondent or deposit before the court below cost of Rs.7,500/- (Rupees Seven thousand five hundred only) on or before 20.07.2010; c) If the amount is paid by 20.07.2010, the court below shall dispose of O.P.No.898 of 2008 in accordance with law after granting the parties opportunities to put in pleadings and adduce further evidence including opportunity for the appellants herein to recall PW1 and to cross examine her. Mat.Appeal No.996 of 2009 4 7. Hand over a copy of this judgment to the learned counsel for the appellants, who shall forthwith produce the same before the court below. 8. Registry shall also communicate the judgment forthwith by telephone/fax. The learned Judge of the Family Court shall call O.P.No.898 of 2008 again on 21.07.2010. If the amount is not paid or deposited as directed above, that fact shall be noted and the impugned orders shall stand revived in such event. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/