Favas vs Salihath Pulikkal
2021 Latest Caselaw 4872 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                              &

              THE HONOURABLE MR.JUSTICE C.S.DIAS

     WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST
                        MAGHA,1942

                  Mat.Appeal.No.698 OF 2020

   AGAINST THE ORDER/JUDGMENT IN OP 915/2018 OF FAMILY
                     COURT,KOZHIKODE


APPELLANT:

              FAVAS, AGED 37 YEARS, S/O SHAHUL HAMEED,
              RESIDING AT VALIYA VALAPPIL, KUNNATHUMKARA P
              O, OLLOOKARA, THRISSUR-680 655, REPRESENTED BY
              HIS POWER OF ATTORNEY HOLDER, AZOORA HAMEED,
              W/O SHAHUL HAMEED, AGED 68 YEARS, VALIYA
              VALAPPIL, KUNNATHUMKARA P O, OLLOOKARA,
              THRISSUR-680 655

              BY ADVS.
              SRI.M.PROMODH KUMAR
              SMT.MAYA CHANDRAN

RESPONDENT:

              SALIHATH PULIKKAL, AGED 32 YEARS, D/O ABDUL
              SALAM, JASEERA MANZIL, VELUTHEDATH PARAMBA,
              NALLUR P O, FEROKE, KOZHIKODE-673 631.

              R1 BY ADV. SRI.T.D.SUSMITH KUMAR
              R1 BY ADV. SRI.NABIL KHADER

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal.No.698 OF 2020

                              ..2..




                            JUDGMENT

Dated this the 10th day of February 2021

A.Muhamed Mustaque, J

This Mat. Appeal arises from the dismissal of an

application to set aside the ex-parte order in O.P. No. 915 of

2018 on the file of the Family Court, Kozhikode. The

application was accompanied by a petition to condone delay

of 279 days. According to the appellant, he never received

any notice in the proceedings and he was prosecuting the

connected matters through his mother - the power of

attorney holder. It is submitted that the appellant was

working abroad as a driver. The Family Court dismissed the

applications holding that there was no bona fides and no

sufficient cause was made out to condone the delay. The

Family Court further observed that recitals in the power of Mat.Appeal.No.698 OF 2020

..3..

attorney clearly reveals that the appellant was aware of all

the cases pending against him. However, it is crucial that

the Family Court failed to notice the plea made by the

petitioner that there was no service of notice to him.

2. Taking note of the totality of the facts, we are of

the view that the delay petition as well as the application to

set aside the ex-parte order has to be allowed. However, it is

to be noted that the matter is pending before the Family

Court since 2018. Hardships suffered by the respondent

cannot be overlooked. Therefore, the appellant will have to

pay the cost. We quantify the cost at Rs.10,000/- (Rupees

Ten Thousand only). The cost shall be paid to the

respondent through the learned counsel appearing for the

respondent before this Court within two weeks and produce

the receipt thereon before the Family Court. Based on the

condition enumerated as above, the appeal is allowed. The Mat.Appeal.No.698 OF 2020

..4..

impugned order is set aside. The parties are directed to

appear before the Family Court on 5.03.2021. The Family

Court is directed to dispose of the matter as expeditiously as

possible.

All pending interlocutory applications, if any, are

closed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

PR