Jasmine. a vs Sharafudeen. a

Type Court Judgment Court Kerala Decided Jul 10, 2024

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https://sooperkanoon.com/case/1305595

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Citation: sooperkanoon.com/1305595
Court: Kerala High Court
Judge: Honourable Mr. Justice Devan Ramachandran,Honourable Mr. Justice C.Pratheep Kumar
Decided On: Jul 10, 2024
Case Number: OP (FC)/68/2024

Parties & Advocates

Appellant / Petitioner

Jasmine. a

Respondent

Sharafudeen. a

Excerpt

.....finding that the said original petition was not dismissed for default, or even ex parte, but allowed on merits.2. smt.hemalatha - learned counsel for thepetitioner, conceded that what her client ought to have filed was an application under order ix rule 13 of the code of civil procedure (cpc), but that, on account of an inadvertent omission, it was styled as one under order ix rule 9 of the cpc and it is, therefore, that the learned family court has issued ext.p8. she apologized for the omission and prayed that, in theinterests of substantial justice, the said orderbe set aside.3. sri.m.r.sasi - learned counsel for therespondent, however, submitted that ext.p8 only answers r.p.no.41/2023 filed by the petitioner and nothing more. he pointed out that the learned family court has not entered into the merits of any of the contentions.4. we find force in the afore submissionsof sri.m.r.sasi because, ext.p8 order has only dismissed the review petition filed by the petitioner; and we cannot find this to be in error, particularly when the petitioner himself admits that he filed it under a wrong provision of law.5. that apart, smt.hemalatha - learnedcounsel for the petitioner, today admits that final judgment has been delivered by the learned family court in the original petition and that the same has been challenged in mat appeal no.214/2024. in the afore circumstances, we dismiss this original petition; however, leaving every other available contention and liberty open to the petitioner, including when the afore mat appeal is heard and disposed of. sd/- devan ramachandran judge sd/- c.pratheep kumar judge sas appendix of op (fc) 68/2024 petitioner’s exhibits: exhibit-p1 a true copy of the original petition in o. p.(mma) no. 544 of 2022 dated 06-04-2022 beforethe family court, mavelikkara exhibit-p2 a true copy of the objection prepared by the petitioner in o. p. (mma) no. 544 of 2022 before the family court at mavelikkara exhibit-p3 a true copy of the judgment.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN & THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 10TH DAY OF JULY 2024 / 19TH ASHADHA, 1946 AGAINST THE ORDER DATED 05.09.2023 IN RESTORATION PETITION 41/2023 IN OPMMA NO.544 OF 2022 OF FAMILY COURT, MAVELIKKARA PETITIONER/PETITIONER/RESPONDENT: JASMINE. A AGED 41 YEARS W/O SHARAFUDEEN, RESIDING AT KOTTACKAKATHU HOUSE, ILLIPPAKULAM. P.O, KATTANAM VILLAGE, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN - 690502 BY ADV M.HEMALATHA RESPONDENT/RESPONDENT/PETITIONER:
SHARAFUDEEN. A AGED 47 YEARS S/O ABDUL RASAKH, BISMINA MANZIL, THAMALLACKAL SOUTH, THAMALLACKAL. P. O, KUMARAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA, PIN - 690548 BY ADVS. M. R. SASI N.P.SILPA(K/471/2015) DHARMYA M.S(K/1412/2020) S.SAJIT SANAL(K/001029/2022) KAVYA KRISHNAN(K/1848/2021) THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

DEVAN RAMACHANDRAN (J) This Original Petition has been filed impugning Ext.P8 order, whereby, the learned Family Court, Mavelikkara, refused to restore O.P.(MMA)No.544/2022, as applied for by the petitioner, finding that the said Original Petition was not dismissed for default, or even ex parte, but allowed on merits.

2. Smt.Hemalatha - learned counsel for the

petitioner, conceded that what her client ought to have filed was an application under Order IX Rule 13 of the Code of Civil Procedure (CPC), but that, on account of an inadvertent omission, it was styled as one under Order IX Rule 9 of the CPC and it is, therefore, that the learned Family Court has issued Ext.P8. She apologized for the omission and prayed that, in the

interests of substantial justice, the said order

be set aside.

3. Sri.M.R.Sasi - learned counsel for the

respondent, however, submitted that Ext.P8 only answers R.P.No.41/2023 filed by the petitioner and nothing more. He pointed out that the learned Family Court has not entered into the merits of any of the contentions.

4. We find force in the afore submissions

of Sri.M.R.Sasi because, Ext.P8 order has only dismissed the Review Petition filed by the petitioner; and we cannot find this to be in error, particularly when the petitioner himself admits that he filed it under a wrong provision of law.

5. That apart, Smt.Hemalatha - learned

counsel for the petitioner, today admits that final judgment has been delivered by the learned Family Court in the Original Petition and that the same has been challenged in Mat Appeal No.214/2024. In the afore circumstances, we dismiss this Original Petition; however, leaving every other available contention and liberty open to the petitioner, including when the afore Mat Appeal is heard and disposed of. Sd/- DEVAN RAMACHANDRAN JUDGE Sd/- C.PRATHEEP KUMAR JUDGE SAS APPENDIX OF OP (FC) 68/2024 PETITIONER’S EXHIBITS: Exhibit-P1 A TRUE COPY OF THE ORIGINAL PETITION IN O. P.

(MMA) NO. 544 OF 2022 DATED 06-04-2022 BEFORE

THE FAMILY COURT, MAVELIKKARA Exhibit-P2 A TRUE COPY OF THE OBJECTION PREPARED BY THE PETITIONER IN O. P. (MMA) NO. 544 OF 2022 BEFORE THE FAMILY COURT AT MAVELIKKARA Exhibit-P3 A TRUE COPY OF THE JUDGMENT DATED 31-10-2022 BY THE FAMILY COURT, MAVELIKKARA IN O. P.

(MMA) NO. 544 OF 2022

Exhibit-P4               A TRUE COPY OF R. P. NO. 41 OF 2023 IN O. P.
Exhibit-P5               A TRUE COPY OF I.A. NO. 1 OF 2023 IN O. P.
Exhibit-P6               A TRUE COPY OF THE OBJECTION FILED BY THE

RESPONDENT IN R. P. NO. 41 OF 2023 IN O. P. Exhibit-P7 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. NO. 1 OF 2023 IN O. P. Exhibit-P8 A TRUE COPY OF THE ORDER DATED 05-09-2023 IN R. P. NO. 41 OF 2023 IN O. P. (MMA) NO. 544 OF 2022 BEFORE THE FAMILY COURT AT MAVELIKKARA Exhibit-P9 A TRUE COPY OF THE DRAFT OF THE PETITION FILED BY THE PETITIONER BEFORE THE HONOURABLE FAMILY COURT, MAVELIKKARA Exhibit-P10 A TRUE COPY OF THE 'B' DIARY THAT TOO IN R. P. NO. 41 0F 2023 IN O. P. (MMA) NO. 544 OF 2022 BEFORE THE FAMILY COURT AT MAVELIKKARA

Same Court & Year Kerala · 2024 Same Parties Jasmine. a vs Sharafudeen. a Same Judge Honourable Mr. Justice Devan Ramachandran,Honourable Mr. Just...