Kerala High Court
Shoukath vs Sebeena on 27 January, 2021
1
Mat.Appeal.No.1049 OF 2019
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 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
Mat.Appeal.No.1049 OF 2019
AGAINST THE ORDER/JUDGMENT DATED 17.7.2019 IN I.A. 2077 AND 2078
OF 2019 IN OP 1991/2016 OF FAMILY COURT,THRISSUR
APPELLANT/S:
SHOUKATH
AGED 48 YEARS
S/O. MUHAMMEDALI, ANDATHOD CHALIL HOUSE, MANATHALA
VILLAGE, THIRUVATHRA P.O, CHAVAKKAD TALUK, THRISSUR
680 516
BY ADV. SRI.C.DHEERAJ RAJAN
RESPONDENT/S:
SEBEENA
AGED 40 YEARS
D/O. A.K ALI, AACHIVEETIL HOUSE, SIDHIQ JUMA
MASJID, CHAVAKKAD TALUK, DESOM, MANATHALA VILLAGE,
THRISSUR 680 506.
R1 BY ADV. SRI.JOJU KYNADY
R1 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL)
R1 BY ADV. SRI.A.ABDUL NABEEL
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Mat.Appeal.No.1049 OF 2019
A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
======================
Mat Appeal No.1049 of 2019
======================
Dated this the 27th day of January, 2021.
JUDGMENT
A.MUHAMED MUSTAQUE , J.
This appeal was filed challenging a common order in
the application to condone the delay and also in the
application to set aside the exparte decree.
2. The appellant herein is the respondent in OP
No.1991/2016 on the files of the Family Court, Thrissur.
The above original petition was filed by the respondent
herein for recovery of value of gold ornaments.
3. The respondent appeared before the Family
Court. Thereafter he remained absent. Accordingly, an ex
parte decree was passed. He filed an application to set
aside the ex parte decree. That was allowed. Again the
matter was posted for evidence. On that day the
respondent remained absent. Accordingly, he was set
exparte again and an exparte decree was passed on
Mat.Appeal.No.1049 OF 2019
31.1.2019. The respondent filed an application to set aside
the ex parte decree along with an application to condone
the delay of 53 days. Both applications were dismissed by
a common order dated 17.7.2019.
4. The learned counsel appearing for the appellant
submits that the appellant had sufficient reason for non-
appearance on the date scheduled for evidence. The
learned counsel submitted that the appellant was laid up
due to severe back pain. The learned counsel
appearing for the respondent submits that the intention of
the appellant is to protract the proceedings. He had no
sufficient reason to condone the delay.
5. The Family Court after noticing that there was no
medical evidence in support of the appellant's claim that
he was suffering severe back pain, dismissed the
application.
6. We are of the view that one more opportunity
should be given to the appellant. Though we are not
satisfied with the reasons stated in the affidavit filed in
support of the application to condone the delay, in the
interest of justice such opportunity should be given to the
Mat.Appeal.No.1049 OF 2019
appellant on terms. Accordingly, the applications are
allowed and impugned order is set aside on payment of
cost of Rs.10,000/-. The cost shall be paid to the
respondent through the counsel appearing for the
respondent before this Court, within a period of three
weeks from today and receipt shall be produced before
Registry. The parties are directed to appear before the
Family Court on 1.3.2021. In view of the fact that the
matter is ripe for evidence and the matter is of the year
2016, the Family Court is directed to dispose of the matter
within a further period of two months.
The Mat.Appeal is disposed of accordingly.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
SKS/27.1.2021
