Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945 OP (FC) NO. 429 OF 2023 AGAINST THE ORDER/JUDGMENT IN OP 811/2019 OF FAMILY COURT, PALAKKAD OP 811/2019 OF FAMILY COURT, PALAKKAD PETITIONER/RESPONDENT SAJITHKUMAR, AGED 37 YEARS S/O SOUNDAR RAJAN, VELLISARAM GRAMAM, BEHIND LORD SIVA TEMPLE, WEST PERUVEMBU, PALAKKAD REP. BY POWER OF ATTORNEY HOLDER, SOUNDER RAJAN A. AGED 63, S/O ARUMUGHAN, VELLISARAM GRAMAM, BEHIND LORD SIVA TEMPLE, WEST PERUVEMBU, PALAKKAD., PIN - 678531 BY ADVS. SAJAN VARGHEESE K. LIJU. M.P
RESPONDENTPETITIONERS: S.SAJITHA, AGED 37 YEARS D/O P.SASI, 44G/29/1, PUTHUR MARIYAMMAN KOVIL VEEDHI, PEELAMEDU PUTHUR, PEELAMEDU, COIMBATORE, TAMILNADU., PIN - 641004 THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.MUHAMED MUSTAQUE & MOHAMMED NIAS C.P., JJ ------------------------------------------------------------------ -------------------------------------------- Dated this the 7th day of August, 2023
JUDGMENT
Mohammed Nias.C.P..J This original petition is filed challenging Ext.P7 order that allowed the application filed by the respondent herein seeking to set aside the ex-parte order along with an application to condone the delay of 150 days in filing the same. The court below, by the impugned order allowed the applications on condition of payment of cost of Rs.2000/- to the petitioner herein. Challenging the said order, the learned counsel for the petitioner submits that the basis for applying for setting aside the ex-parte decree was that the respondent did not receive notice, but the said contention was not accepted by the lower court and despite the same the application was allowed on cost. Learned counsel further submits that if the reason put forth in the application to set aside the ex-parte order was found to be wrong then the application ought not have been allowed.
2. Learned counsel for the respondent however maintains
before us that his client did not receive the notice of the proceedings from the family court. Be that as it may, we note that the court below had exercised a discretion in allowing the application to set aside the ex-parte order on terms possibly though it did not fully agree with the averments in the affidavit filed in support of the application to set aside the ex-parte order so as to enable the parties to contest on merits. We also feel that the matter has to be decided on merits and the attempt of the court below was for ensuring a contest on merits. We do not find such exercise of discretion by the court below to be wrong, to be interfered with in this original petition, much less under Article 227 of the Constitution of India. We do not find any merit in the original petition and the same is accordingly dismissed,. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- MOHAMMED NIAS C.P., JUDGE dlk 7.8.2023 APPENDIX OF OP (FC) 429/2023 PETITIONER's EXHIBITS Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 20.10.2021 BY THE PETITIONER. Exhibit P2 TRUE COPY OF THE ORIGINAL PETITION IN OP Exhibit P3 TRUE COPY OF THE PETITION IN I.A.NO.2/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD . Exhibit P4 TRUE COPY OF THE PETITION IN IA NO.3/22 IN OP Exhibit P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.2/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.3/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD. Exhibit P7 TRUE COPY OF THE ORDER DATED 24.02.23 PASSED IN I.A.NO.2/2022 IN OP NO.811/2019 ON THE Exhibit P8 TRUE COPY OF THE ORDER DATED 13.03.23 PASSED IN I.A.NO.3/2022 IN OP NO.811/2019 ON THE