Abu Shahuman vs Sunitha Beevi
2021 Latest Caselaw 1677 Ker

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OP (FC).No.331 OF 2017(R)

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                  &

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

    FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      OP (FC).No.331 OF 2017(R)

 AGAINST THE ORDER/JUDGMENT IN OP 336/2008 DATED 16.10.2009 OF
                  FAMILY COURT, KOTTARAKKARA

   AGAINST THE ORDER IN I.A Nos 1685/204 and 1684/2014 in OP
                   336/2008 DATED 28/11/2016


PETITIONER/S:

                ABU SHAHUMAN
                AGED 61 YEARS, S/O.MUHAMMED YOOSUF, PRESENTLY
                RESIDING AT BYNUNA TOWERS, MEDICALS & LODGE, NEAR
                SBT, KALLAMBALAM, TRIVANDRUM DISTRICT.

                BY ADV. SRI.JOHN NUMPELI (JUNIOR)

RESPONDENT/S:

      1         SUNITHA BEEVI
                AGED 52 YEARS, D/O.SHERIFA BEEVI, SHEEJA MANZIL,
                KUMIL VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT-
                691506.

      2         SHIJINA
                AGED 25 YEARS, D/O.SUNITHA BEEVI, -DO- -DO-.


     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD               ON
15.1.2021, THE COURT ON 15-01-2021 DELIVERED THE FOLLOWING:
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OP (FC).No.331 OF 2017(R)



           A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
              ======================
                   OP(FC)No.331 of 2017
              ======================
           Dated this the 15th day of January, 2021.

                             JUDGMENT

MUHAMED MUSTAQUE, J.

This original petition is filed challenging the two orders

passed by the Family Court, Kottarakkara. The petitioner was the

respondent in OP No.336/2008 in the aforesaid Court filed by

the respondents herein.

2. OP No.336/2008 was filed for realisation of money,

gold ornaments and for maintenance. The original petition was

allowed. The decretal portion is as follows:

1. Petitioners 1 and 2 are allowed maintenance at Rs.700/-

p.m each from 14.5.2008 onwards from the C.P and his assets.

2. First petitioner is allowed to recover Rs.1 lakh with interest at 6% p.a from 14.5.2008 till realisation from the C.P and his assets.

3. The petitioner entered appearance in the matter

pursuant to notice before the Family Court. Though he was

directed to file objection, he did not file it and thereafter he

remained absent. Accordingly, he was set exparte.

OP (FC).No.331 OF 2017(R)

4. After the disposal of the original petition, the

petitioner filed application to set aside the exparte order along

with application to condone delay. There was a delay of 5 years

in filing the application to condone the delay. Both applications

were dismissed for default. The petitioner filed application to

restore those applications along with application to condone the

delay. Again, those applications were dismissed by the

impugned orders. It is challenging these orders, the petitioner

has approached this Court.

5. It is to be noted that the original order was passed on

16.10.2009. The petitioner has no case that he had not received

any notice. In fact, he entered appearance and thereafter he

remained absent. The application to set aside the exparte order

along with delay petition was filed only in the year 2013. He

failed to prosecute that applications, which resulted in

dismissing those applications. Thereafter he filed application to

restore those applications along with application to condone the

delay. Those applications have been dismissed. We do not find

any reason to interfere with the matter. The inordinate delay of

5 years have occurred in filing the application to set aside the

exparte decree. Any prudent or vigilant person would have

OP (FC).No.331 OF 2017(R)

chosen to defend his case, if he had a real intention to defend

his case. Though no reasons have been assigned in the

impugned order for dismissing the application for restoration,

which was filed with a delay petition, we find no reason to

interfere with the matter under Article 227 of the Constitution

of India. Accordingly, we dismiss the original petition.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                            C.S.DIAS

SKS/15.1.2021                                JUDGE

OP (FC).No.331 OF 2017(R)


                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1-          TRUE COPY OF THE ORDER DATED 16/10/2009 IN

O.P.NO.336/2008 OF THE FAMILY COURT, KOTTARAKKARA.

EXHIBIT P2- TRUE COPY OF THE REVIEW PETITION, I.A.NO.1686/2014 IN O.P.NO.336/2008 BEFORE THE FAMILY COURT, KOTTARAKKARA.

EXHIBIT P3- TRUE COPY OF THE PETITION FOR CONDONING DELAY I.A.NO.1685/2014 IN O.P.NO.336/2008 BEFORE THE FAMILY COURT, KOTTARAKKARA.

EXHIBIT P4- TRUE COPY OF THE ORDER IN I.A.NO.1686/2014 IN O.P.NO.336/2008 OF THE FAMILY COURT, KOTTARAKKARA.

EXHIBIT P5- TRUE COPY OF THE ORDER IN I.A.NO.1685/2014 IN O.P.NO.336/2008 OF THE FAMILY COURT, KOTTARAKKARA.