Kerala High Court
Hima Philip vs Robin P.R on 18 February, 2021
OP (FC).No.728 OF 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942
OP (FC).No.728 OF 2019
AGAINST OP 647/2016 OF FAMILY COURT,THRISSUR
PETITIONER:
HIMA PHILIP
AGED 31 YEARS
D/O.CHALAKKAL PHILIP, MELOOR VILLAGE, DESOM,
TALAPPILLY TALUK, THRISSUR-680311
BY ADV. SRI.DILIP J. AKKARA
RESPONDENTS:
ROBIN P.R
S/O.RAPPAI, POOPPADI HOUSE, SANTHNAGAR DESOM,
SHORNUR, OTTAPPALAM TALUK, PALAKKAD-679121
R1 BY ADV. SRI.SANTHOSH P.PODUVAL
R1 BY ADV. SMT.R.RAJITHA
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (FC).No.728 OF 2019
2
JUDGMENT
Dated this the 18th day of February 2021
C.S.Dias,J.
The petitioner in this original petition is the
respondent in O.P. 647/2016 (Ext.P1) before the Family
Court, Thrissur. The respondent had filed Ext.P1,
seeking a decree for restitution of conjugal rights.
The parties are husband wife.
2. The concise case of the petitioner in the
original petition is that as she was sick on 24.01.2018,
she could not appear in Ext.P1 proceeding. The
Family Court set her ex parte and decreed the suit on
31.01.2018. The petitioner filed I.A No.986/2018 to set
aside the ex parte decree. However, as there was no
representation for the petitioner when I.A No.986/2018
was called, the said application was also dismissed.
Immediately, thereafter, the petitioner filed I.A
No.1984/2018 to restore I.A No.986/2018. The Family
Court allowed I.A No.1984/2018 by Ext.P2 order
directing the petitioner to pay costs of Rs.2,000/- to
OP (FC).No.728 OF 2019
the respondent. The petitioner promptly paid the costs
and was under the impression that the case was
restored to file. Nevertheless, on the next posting i.e.
on 24.10.2018, the petitioner was informed that the
Court had also imposed costs of Rs.1,000/-, in order to
set aside the ex parte decree. This fact was not
brought to the notice of the petitioner. Even though
the petitioner was prepared to pay the additional costs,
the Family Court dismissed the application for non-
payment of costs. The petitioner then filed I.A
No.5349/2018 (Ext.P4) to restore I.A No.986/2018,
but the Family Court by Ext.P6 order dismissed Ext.P4
application. The petitioner was not advised or
instructed by her counsel regarding the imposition of
Rs.2000/- and Rs.1000/- as costs. It was in the said
circumstances, that the petitioner did not pay the
costs, which is not willful or deliberate. Hence the
petitioner seeks to set aside Ext.P6 order and set aside
the ex parte decree passed in O.P.647/2016.
OP (FC).No.728 OF 2019
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. The fact remains that the petitioner was set
ex parte and she had filed an application to set aside
the ex parte decree. However, as the said application
was dismissed, the petitioner filed I.A No.1984/2018 to
restore the application to set aside the ex parte decree.
The Family Court allowed both the applications on
condition that the petitioner pays an amount of
Rs.2,000/- and Rs.1,000/- respectively as costs. It is
not disputed that the petitioner deposited Rs.2000/-.
Nevertheless, purportedly by an inadvertent mistake,
the petitioner failed to deposit the additional cost of
Rs.1000/- in order to set aside the ex parte decree. In
the above factual background, the Family Court
dismissed the application to review the order.
5. Taking note of the settled law in a host of
judicial pronouncements that cases should be decided
OP (FC).No.728 OF 2019
on its merits and not on default and that a lenient view
has to be taken while dealing with applications to set
aside ex parte decrees, we are of the considered
opinion that no prejudice would be caused to the
respondent, if the application to set aside the ex parte
decree is allowed. Even if any hardship or prejudice is
caused to the respondent, the same can be
compensated by directing the petitioner to pay
additional costs, in order to tide over such hardship.
In the result, in exercise of the supervisory
jurisdiction of this Court as enshrined under Article
227 of the Constitution of India, we allow the original
petition by directing the petitioner to pay the amount
of Rs.1,000/- as costs as ordered by the Family Court
to set aside the ex parte decree in I.A No.986/2018 and
also to pay an additional amount of Rs.4,000/- as costs
to the respondent, in order to tide over the hardship
and expenses incurred in contesting this original
petition. The petitioner shall pay the amount of
OP (FC).No.728 OF 2019
Rs.5,000/- (Rupees Five thousand only) within a period
of two weeks from the date of receipt of a copy of this
judgment to the respondent or his learned counsel
appearing before this Court and produce the memo
evidencing such payment of costs along with the copy
of this judgment before the Family Court. If the above
directions are complied, O.P.647/2016 would stand
restored and the petitioner shall be permitted to
contest the proceedings. Taking note of the fact that
the original petition is of the year 2016, the Family
Court shall make every endeavour to dispose of the
original petition, as expeditiously as possible, in
accordance with law.
The original petition is ordered accordingly.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
ma/19.2.2021 /True copy/
JUDGE
OP (FC).No.728 OF 2019
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF OP 647/16 DATED 07.04.2016
FILED BY RESPONDENT BEFORE FAMILY
COURT, THRISSUR
EXHIBIT P2 PHOTOCOPY OF ORDER DATED 23.08.2018 IN
IA 1984/18 IN IA 984/18 IN OP 647/18 OF
FAMILY COURT, THRISSUR
EXHIBIT P3 PHOTOCOPY OF B DIARY IN IA 986/18 IN OP
64/16 OF FAMILY COURT, THRISSUR
EXHIBIT P4 PHOTOCOPY OF PETITION IA 5349/18 DATED
03.11.18 IN IA 986/18 IN OP 647/16
FILED BY PETITIONER
EXHIBIT P5 PHOTOCOPY OF COUNTER DATED 16.11.18
FILED BY RESPONDENT IN EXT.P-4IA
EXHIBIT P6 PHOTOCOPY OF ORDER DATED 05.12.2018 OF
FAMILY COURT THRISSUR IN IA 5349/18 IN
OP 647/16
