Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE11H DAY OF DECEMBER201420TH AGRAHAYANA, 1936 OP (FC).No. 533 of 2014 (R) ---------------------------- (AGAINST THE ORDER
OF DISMISSAL OF APPLICATION FOR SETTING ASIDE EX-PARTE ORDER
IN O.P.(I.A.3655/12 IN OP83508), BY THE FAMILY COURT, THRISSUR) PETITIONER(S)/1ST PETITIONER:-: -------------------------------- SUNIL KUMAR, AGED45YEARS S/O.PALAMADATHIL PRABHAKARAN, KURUKKAMPARA DESOM KUNNAMKULAM VILLAGE, TALAPPILLY TALUK THRISSUR DISTRICT. BY ADVS.SRI.SANTHARAM.P SMT.REKHA ARAVIND RESPONDENT(S)/RESPONDENT AND2D PETITIONER:-: -------------------------------------------- 1. JISHA, D/O.KANDAMPULLY SUBRU, CHIRAKKAL VADAKKUMURI RAMAPURATH DESOM KATTAKAMBAL VILLAGE, TALAPPILLY TALUK THRISSUR DISTRICT.
2. BINDU, W/O.SANTHOSH, D/O.PALAMADATHIL PRABHAKARAN KURUKKAMPARA DESOM, KUNNAMKULAM VILLAGE TALAPILLY TALUK, THRISSUR DISTRICT. R2 BY ADV. SMT.K.P.SHEEBA R2 BY ADV. SRI.P.RAMACHANDRAN R1 BY ADV. SRI.NAGARAJ NARAYANAN R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SRI.PRATHAP PILLAI R1 BY ADV. SRI.SEBIN THOMAS R1 BY ADV. SRI.VIVEK V. KANNANKERI R1 BY ADV. SMT.J.KASTHURI R1 BY ADV. SRI.VISHNU BHUVANENDRAN THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON1112-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (FC).No. 533 of 2014 (R) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS -------------------------- EXHIBIT P1. TRUE COPY OF THE ORDER
DATED1409.2012 IN OP NO.835/2008 ON THE FILES OF THE FAMILY COURT, THRISSUR. EXHIBIT P2. TRUE COPY OF THE PETITION DATED2709.2012 FILED AS I.A.NO.3655/2012 IN OP.835/2008 TO SET ASIDE THE EX PARTE ORDER
. EXHIBIT P3. TRUE COPY OF THE MEDICAL CERTIFICATE FILED ALONG WITH EXT.P2 APPLICATION. EXHIBIT P4. CERTIFIED COPY OF THE ORDER
DATED1004.2013 IN I.A.NO.3655/2012 IN OP.835/2008. EXHIBIT P5. TRUE COPY OF THE E.P.NO.66/2014 IN OP.835/08 DATED0508.2014. RESPONDENT(S)' EXHIBITS ------------------------- NIL //TRUE COPY// P.A.TO JUDGE ami/ V.K.MOHANAN & K.HARILAL, JJ.
------------------------------- O.P.(F.C.)No.533 of 2014 ------------------------------- Dated this the 11th day of December, 2014.
JUDGMENT
Harilal, J.
The petitioner is the 1st respondent in O.P.No.835/08 on the files of the Family court, Thrissur. The above original petition was filed by the 1st respondent herein, who is the wife of the petitioner, for return of 30 sovereigns of gold ornaments, an amount of Rs.45,000/-, value of the house hold articles worth Rs.30,000/- and for maintenance @ of Rs.5,000/- per month from the petitioner from 9.11.2007 onwards. The original petition was filed against the petitioner, his mother as well as his sister. In the original petition, the respondents entered appearance and the case was referred for counseling to Adalat ; but the same was not settled. Thereafter, during the pendency of the case, the 2nd respondent in the original petition, who is the mother of the petitioner, died. On the date specified for the appearance of the petitioner herein, he could not appear O.P.(F.C.)No.533 of 2014 2 due to his illness. Therefore, the respondents in the original petition were set ex parte. Thereafter, the court below on the basis of the proof affidavit filed by the 1st respondent, allowed the original petition directing the respondents to return 30 sovereign of gold ornaments or value of the same, the amount of Rs.45,000/- and an amount of Rs.30,000/- as value of the household articles. Aggrieved by the ex parte order passed against the petitioner and other respondents, the petitioner filed I.A.No.3655/12 in the original petition under Order 9 Rule 13 of CPC along with a Medical Certificate. But the court below without considering the reasons for non appearance in its correct perspective, dismissed the above I.A. The legality and propriety of the findings, whereby the court below arrived at a conclusion that there is no sufficient grounds to allow the application, is under challenge in this O.P.(F.C.).
2. Heard the learned counsel for the petitioner and the respondents. O.P.(F.C.)No.533 of 2014 3 3. The learned counsel for the petitioner advanced arguments challenging the findings, whereby the court below dismissed the application to set aside ex parte order. The learned counsel further submits that the petitioner was laid up due to stomach disease and the same is evidenced by Ext.P3 medical certificate issued by the doctor who treated the petitioner. Per contra, the learned counsel for the respondents advanced arguments to justify the findings of the court below. According to the learned counsel for the respondents, the delay was not properly explained in the application. Thus, there was no sufficient cause for the non appearance of the petitioner, when the case was posted for evidence.
4. It is the case of the petitioner that he could not appear before the court on the day when the case was posted for hearing, since he was laid up due to stomach disease. To substantiate the said contention, the petitioner has produced Ext.P3 certificate issued by the doctor who O.P.(F.C.)No.533 of 2014 4 treated him. As rightly held by the court below, even if the petitioner was laid up, there was no reason for the non- appearance of the other respondents on the day when the case was posted for hearing. Therefore, we cannot find fault with the said findings of the court below.
5. However, considering the gravity of the claim raised against the petitioner and others in the original petition, we are also of the opinion that the petitioner can be given further opportunity to contest the original petition on merits, on a different perspective. Adjudication of a lis on merits is always desirable than disposal on technicalities. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred rather than technical considerations. Moreover, "sufficient cause" must be interpreted liberally so as to advance substantial justice.
6. Consequently, the impugned order under challenge will stand set aside, on condition that the petitioner shall O.P.(F.C.)No.533 of 2014 5 deposit Rs.5,000/- as cost in the Family court within a period of 2 weeks from the date of receipt of copy of this judgment, failing which, the impugned order will stand in force. The 1st respondent herein is allowed to realise the said amount from the court below. On compliance of the said condition, the court below shall restore the original petition on the file and proceed in accordance with law. It is made clear that, the impugned order against all the respondents in the original petition will stand set aside, on compliance of the said condition. Sd/- V.K.MOHANAN, Judge. Sd/- K.HARILAL, Judge. ami/ //True copy// P.A.to Judge