Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943 IN E.A.NO.241/18 IN E.A.NO.190/18 IN E.P.NO.67/2011 OF FAMILY COURT, KOLLAM PETITIONER/PETITIONER/3RD JUDGMENT DEBTOR: REMA DEVI, AGED 66 YEARS W/O. LATE GOPINATHAN PILLAI, RESIDING AT LEKSHMI NIVAS, MANACAUD, VADAKKEVILA, KOLLAM 691 020. BY ADV HARISH GOPINATH RESPONDENTS/PETITIONERS/DECREE HOLDER:
1 SYAMA, AGED 36 YEARS D/O. SHYLAJA, SYAMA VILLA, VADAKKE MYLAKKAD, ADICHANALLOOR, KOLLAM 691 573. 2 NANDU, AGED 15 YEARS D/O. DEEPASH KUMAR, SYAMA VILLA, VADAKKE MYLAKKAD, ADICHANALOOR, KOLLAM 691 573. 3 DEEPESH KUMAR , AGED 43 YEARS S/O. GOPINATHAN PILLAI, LEKSHMI NIVAS, MANACAUD, VADAKKEVILA, KOLLAM 691 020 (IST JD). BY ADVS. G.VIDYA SRI.SANIL KUNJACHAN THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
A.Muhamed Mustaque, J.
The petitioner herein is the petitioner in E.A.No.190 of 2018 in E.P.No.67 of 2011 of the Family Court, Kollam. That E.A was dismissed for dafault vide order dated 21.11.2018, as petitioner was not represented. Thereafter an application for restoration was filed as per E.A.No.241 of 2018. This has been dismissed stating that the sale was held on 13.06.2018 and subsequently, the decree holder deposited the amount for stamp paper. It was further issued that there was no bona fides in the application.
2. It is to be noted that application for
restoration was filed within time. Latches on the part of the counsel for not representing the petitioner on the day when the case was posted cannot result in dismissal of such application. The Court order should have gone into the merits of such application and decided the case accordingly. We are of the view that latches as above can be remedied by imposing costs. Accordingly, impugned
order is set aside on payment of cost of Rs.5000/-. Cost
have to be paid through the counsel appearing for the decree holder before this Court. Accordingly, E.A.No.190 of 2018 would stand restored. The Court shall consider the application on merit after hearing both sides at the earliest.
The original petition is disposed of accordingly. A.MUHAMED MUSTAQUE, JUDGE SOPHY THOMAS, JUDGE AS APPENDIX PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 25.6.2011 IN O.S. NO. 154/2007 ON THE FILE OF FAMILY EXHIBIT P2 TRUE COPY OF THE WILL NO. III 164 OF LATE GOPINATHAN PILLAI. EXHIBIT P3 TRUE COPY OF THE E.A. 190/2018 ON THE FILE OF FAMILY COURT KOLLAM. EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 TO EXHIBIT P3 PETITION. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.11.2018 IN E.A.NO. 190/2018 OF FAMILY COURT EXHIBIT P6 TRUE COPY OF THE E.A. NO. 241/2018 IN E.A.190/2018 ON THE FILE OF FAMILY COURT EXHIBIT P7 TRUE COPY OF THE OBJECTION IN E.A. NO. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31.1.2019 E.A. NO. 241/2018 ON THE FILE OF FAMILY EXHIBIT P9 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY TRAVANCORE MEDICITY, KOLLAM DATED 1/3/2021.