Suma Vs. Rajan Pillai

Suma vs Rajan Pillai

Disposition Appeal allowed Court Kerala Decided Aug 24, 2007

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Citation: sooperkanoon.com/729613
Court: Kerala High Court
Judge: J.B. Koshy and; V. Giri, JJ.
Decided On: Aug 24, 2007
Case Number: Mat. Appeal No. 208 of 2007
Subject: Civil
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Section 100-A [As substituted by C.P.C. Amendment Act, 2002]: [V.K. Bali, CJ, Kurian Joseph & K. Balakrishnan Nair, JJ] Applicability Held, Section is not retrospective. All appeals filed prior to 1.7.2002 are competent. But subsequent to 1.7.2002 intro Court appe...

Key legal issue: Civil
Outcome / disposition: Appeal allowed

Parties & Advocates

Appellant / Petitioner

Suma

Advocate K. Jayakumar,; P.B. Krishnan,; R. Suraj Kumar and;

Respondent

Rajan Pillai

Advocate Johnson Gomez, Adv.

Legal References

Reported In: AIR2008Ker6; I(2008)DMC545; 2008(1)KLJ505

Excerpt

- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. - even though the case is filed before the family court, it is purely a money suit and in money suit presence of the parties is not required unless special circumstance like counselling etc......even though the case is filed before the family court, it is purely a money suit and in money suit presence of the parties is not required unless special circumstance like counselling etc. their personal presence is required. it is for the plaintiff to prove the allegations. if proof affidavit is filed, parties can be cross-examined by the defendant. if the defendant is not adducing sufficient evidence to rebut the points proved by the plaintiff, it is for the court to dispose off or dismiss the suit. merely because defendant was not present personally, he cannot be declared ex parte if he is represented by an advocate. it is also submitted that the appellant in this case was employed in gulf country as a housemaid. therefore, during leave period, she can appear. practical difficulties also should be looked into by the family court. in any event, a money suit can be decided on the basis of evidence adduced by the parties and suit cannot be dismissed merely for nonappearance of defendant when defendant appeared through advocate or power of attorney holder. for non-appearance of the defendant in person, they cannot be declared ex parte.3. in the above circumstances, impugned ex parte judgment is set aside and we direct the family court to take the matter on file and dispose of the case on merit. parties should appear before the family court, either personally or through advocate on 24-9-2007.the appeal is allowed by way of remand.

Full Judgment

J.B. Koshy, J.

1. Respondent filed a suit before the Family Court for realisation of value of jewellery and for realisation of the amount paid. It was purely a money suit. His father, power of Attorney holder, appeared for the appellant/defendant in the suit. She was also represented by an advocate. Same power of Attorney holder filed this appeal also. The appellant was declared as ex parte for the following reasons:

Though the defendant entered appearance through Advocate she did not personally appear and finally she is set ex parte.

2. Therefore, suit was decreed after accepting the proof affidavit. Even though the case is filed before the Family Court, it is purely a money suit and in money suit presence of the parties is not required unless special circumstance like counselling etc. their personal presence is required. It is for the plaintiff to prove the allegations. If proof affidavit is filed, parties can be cross-examined by the defendant. If the defendant is not adducing sufficient evidence to rebut the points proved by the plaintiff, It is for the Court to dispose off or dismiss the suit. Merely because defendant was not present personally, he cannot be declared ex parte if he is represented by an advocate. It is also submitted that the appellant in this case was employed in Gulf country as a housemaid. Therefore, during leave period, she can appear. Practical difficulties also should be looked into by the Family Court. In any event, a money suit can be decided on the basis of evidence adduced by the parties and suit cannot be dismissed merely for nonappearance of defendant when defendant appeared through advocate or power of attorney holder. For non-appearance of the defendant in person, they cannot be declared ex parte.

3. In the above circumstances, impugned ex parte judgment is set aside and we direct the Family Court to take the matter on file and dispose of the case on merit. Parties should appear before the Family Court, either personally or through advocate on 24-9-2007.

The appeal is allowed by way of remand.

Same Court & Year Kerala · 2007 Same Parties Suma vs Rajan Pillai Same Subject Civil Same Judge J.B. Koshy and; V. Giri, JJ.

Civil