Kadakkadan Shihab vs Arakkalthodi Safiya
2021 Latest Caselaw 9985 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                 &

        THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

   WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                       OP (FC).No.480 OF 2018

  AGAINST ORDER IN IA NOS.20/2018 & 21/2018 IN OP 1074/2011 OF
            FAMILY COURT, MALAPPURAM DATED 18/6/2018


PETITIONER:

              KADAKKADAN SHIHAB
              AGED 40 YEARS
              S/O AVARANKUTTY, MADATHIL HOUSE,
              PARAMBIL PEEDIKA P.O, 676 315
              VELIMUKKU, VATTAPARAMBU,CHATHARATHODI,
              MALAPPURAM DISTRICT,
              THROUGH POWER OF ATTORNEY HOLDER SUHARABI

              BY ADV. MOHAMED RAVUF K.K.

RESPONDENT:

              ARAKKALTHODI SAFIYA
              D/O ABOOBACKER, ULLATT HOUSE , MADATHIL,
              PARAMBIL PEEDIKA P.O,
              MALAPPURAM DISTRICT-676 315

              R1 BY ADV. SMT.M.A.ZOHRA (LEGAL AID COUNSEL)

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19-03-
2021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:
 OP(FC) No.480/2018

                               -:2:-




                            JUDGMENT

Dated this the 24th day of March, 2021

Dr.Kauser Edappagath, J.

This Original petition has been filed challenging the

condition imposed by the Family Court while allowing the petition

filed by the husband to set aside the ex parte order along with

the petition to condone the delay in preferring the petition to set

aside the ex parte order.

2. The husband before the Court below is the petitioner

before us. The respondent is his wife. The respondent filed

original petition before the Court below for recovery of gold

ornaments. The petitioner was set ex parte and an ex parte order

was passed on 21/5/2013. Thereafter, the husband filed IA

No.21/2018 to set aside the ex parte order Under Order IX Rule

13 of CPC. There was a delay of 1630 days in filing the said

petition. Hence, IA. No.20/2018 was filed to condone the said

delay. The Court below allowed both petitions as per Ext.P5 order

on condition that the petitioner shall pay 30% of the amount OP(FC) No.480/2018

ordered in the Original Petition to the respondent. The said

condition in Ext.P5 order is under challenge in this original

petition.

3. Heard both sides.

4. The reason shown by the petitioner to set aside the ex

parte order was that he had undergone an operation and hence

he could not appear before the Court. The reason shown for the

delay is that after the ex parte order was passed, through

mediators, the entire dispute was settled and an agreement was

executed and the respondent agreed to withdraw the case. On

the basis of the said assurance, he went abroad. But, the

respondent withdrew from the settlement. Therefore, he was

forced to file the petition to set aside the ex parte order with a

petition to condone the delay.

5. Even though it is alleged that the petitioner had

undergone an operation, no documentary evidence has been

produced. The alleged settlement through mediators has been

disputed by the respondent. Even the settlement agreement is

under challenge. However, the Court below was pleased to grant

an opportunity to the petitioner to contest the case on merits. OP(FC) No.480/2018

There is undue delay and the explanation offered is not

satisfactory. The original petition was filed 10 years ago. The

condition imposed, thus, does not appear to be unreasonable.

Considering the entire facts and circumstances of the case

and also considering the fact that the delay is huge, we are of the

view that the Court below was absolutely justified in imposing the

condition. We find no reason to interfere with the said finding in

the exercise of our jurisdiction under Art.227 of the Constitution

of India. Accordingly, the Original petition is dismissed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                       DR. KAUSER EDAPPAGATH

Rp                                             JUDGE
 OP(FC) No.480/2018




                         APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE   COPY    OF   I.A.NO.21/2018  IN
                     O.P.NO.1074/2011    FILED     BY   THE

PETITIONER BEFORE THE FAMILY COURT, MALAPPURAM

EXHIBIT P2 TRUE COPY OF I.A.NO.20/2018 IN O.P.NO.1074/2011 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, MALAPPURAM

EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 22/12/2017 ENTERED INTO BETWEEN THE PETITIONER AND RESPONDENT

EXHIBIT P4 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN I.A.NO.21/2018 IN O.P.NO.1074/2011 BEFORE THE FAMILY COURT, MALAPPURAM

EXHIBIT P5 TRUE COPY OF THE COMMON ORDER DATED 18/6/2018 IN I.A.NO.20/2018 AND 21/2018 IN O.P.NO.1074/2011 OF FAMILY COURT, MALAPPURAM