Dileep Kumar vs Dileep Kumar
2021 Latest Caselaw 681 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                   &

              THE HONOURABLE MRS. JUSTICE M.R.ANITHA

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                    Mat.Appeal.No.300 OF 2020

  AGAINST THE JUDGMENT IN OP NO.856/2012 DATED 12-09-2014 OF THE
                     FAMILY COURT, THIRUVALLA


APPELLANTS/RESPONDENTS 1 & 3:

      1      DILEEP KUMAR, AGED 36 YEARS
             S/O.LATE SASIDHARAN NAIR, DEEPA BHAVANAM,
             KADAYANIKKADU P.O., VELLAVOOR VILLAGE, CHANGANASSERRY
             TALUK, KOTTAYAM DISTRICT.

      2      RATNAKUMARIYAMMA, AGED 61 YEARS
             W/O.LATE SASIDHARAN NAIR, DEEPA BHAVANAM,
             KADAYANIKKADU P.O., VELLAVOOR VILLAGE, CHANGANASSERRY
             TALUK, KOTTAYAM DISTRICT.

             BY ADVS.
             SRI.MANU RAMACHANDRAN
             SRI.M.KIRANLAL
             SRI.R.RAJESH (VARKALA)
             SRI.T.S.SARATH
             SHRI.SAMEER M NAIR

RESPONDENT/PETITIONER:

             M.K. MANJU, AGED 31 YEARS
             D/O.MURALEEDHARAN, KIZHAKKEVEETTIL HOUSE,
             VALANJAVATTOM P.O., KADAPRA VILLAGE,
             THIRUVALLA TALUK, PATHANAMTHITTA - 689104.

             R1 BY ADV. SRI.R.GIREESH VARMA

     THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD             ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.300 OF 2020              2




                                  JUDGMENT

Dated this the 8th day of January, 2021

K. Vinod Chandran, J.

The appeal is filed with an application

for condonation of delay of 1931 days in filing

the appeal. The judgment impugned is passed in an

original petition filed by the wife of the

appellant before the Family Court, Thiruvalla. The

parties were married in 2010 and the original

petition was filed in the year 2012 for return of

money, gold ornaments and articles entrusted to

the husband at the time of marriage. The husband

and his parents were the respondents in the

petition, who remained ex parte. Eventually an

ex parte decree was passed in 2014, which is now

challenged in appeal on the ground that the Family

Court mechanically allowed the reliefs prayed for,

without any discussion regarding the evidence

adduced by the petitioner-wife.

2. The main contention raised by the

learned Counsel appearing for the appellant to

condone the delay is that the delay was occasioned

since the appellant was prosecuting an application

filed for setting aside the ex parte decree.

Obviously, the same was dismissed and so was an

appeal filed from the order of dismissal. It is

contended that only after dismissal of Mat.Appeal

No.725 of 2018, the appellant collected the

documents from his Counsel and entrusted another

Counsel. It is also stated that the Counsel newly

engaged directed a certified copy of the judgment

to be taken, which also consumed further time.

3. Learned Counsel for the respondent,

based on the Counter Affidavit filed, resisted the

prayer for condonation of delay. Admittedly, the

application to set aside the ex parte decree was

filed with 737 days of delay, which itself is

gross and was not properly explained. It is seen

from the Counter Affidavit that evidence was taken

in the application filed before the Family Court

and dismissal was on account of the clear finding

that the averments raised for condonation of delay

are without bonafides and false. Mat.Appeal No.725

of 2018 was also rejected, confirming the order of

the Family Court. It is stated in the Counter

Affidavit that the reasons stated for delay was

found by this Court to be concocted and the

grounds urged in the application, fanciful. We

have called for the Judges papers in Mat.Appeal

725 of 2018, since the appellant has not produced

the orders. We find the averments in the Counter

Affidavit to be true and correct. The appellant is

guilty of suppressing material facts from us and

filing an affidavit merely stating that the

applications filed to set aside the ex parte

decree and condonation of delay were rejected.

4. The delay occasioned for filing the

application for setting aside the ex parte decree

having been found to be not satisfactory and also

lacking bonafides, the 737 days' delay in filing

this appeal also cannot be condoned. There is no

other reason stated in the present application,

for condonation of delay of the 737 days. If the

delay caused was not properly explained with

respect to the filing of an application for

setting aside an ex parte decree then obviously it

cannot be condoned for filing an appeal.

5. As noticed, in the present petition

filed, there are no new grounds stated for

condonation of the first 737 days. The further

delay is said to have occurred after the dismissal

of Mat.Appeal. The Mat.Appeal was dismissed on

12.09.2014 and the application for certified copy

as seen from the copy produced before this Court

is made on 20.01.2020. The reasons stated of

changing the Counsel is not substantiated, nor is

it a valid ground. The pendency of an application

to condone delay and an application for setting

aside an ex parte decree cannot be a ground for

not filing an appeal within the stipulated time;

especially when the application of condonation of

delay in the earlier proceeding was not condoned

6. For the above reasons, we find no ground

to condone the delay of 1931 days. The judgment

obtained in the year 2014 has not been executed

and the estranged wife is left to the vagaries of

life from the year 2012 onwards.

We dismiss the application for condonation

and as a consequence, we reject the appeal in

limine. We direct a copy of our judgment to be

sent to the respondent by registered post with

acknowledgment due by the Registry.

Sd/-

K. VINOD CHANDRAN, Judge.

Sd/-

M.R. ANITHA, Judge.

sp/11/01/2021

//True Copy//

P.A. To Judge