Vijayadas vs G.Kajitha
2021 Latest Caselaw 20961 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE
                             &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                 MAT.APPEAL NO.130 OF 2017
  AGAINST THE ORDER/JUDGMENT IN O.P.No.719/2010 OF FAMILY
                 COURT, THIRUVANANTHAPURAM
APPELLANT/S:

         VIJAYADAS, S/O.CHRISTUDAS, DAIVAKRIPA,
         THADATHIKKULAM, KANJIRAMKULAM VILLAGE.
         BY ADV SMT.K.P.SANTHI


RESPONDENT/S:

    1    G.KAJITHA, D/O. JAYALATHA, KANJITHALAYAM,
         KANJIRAMKULAM VILLAGE, KANJIRAMKULAM P.O,
         PIN-695001.
    2    ISSACK, KANJITHALAYAM, KANJIRAMKULAM VILLAGE,
         KANJIRAMKULAM P.O, PIN-695001.
    3    JAYALATHA, KANJITHALAYAM, KANJIRAMKULAM
         VILLAGE, KANJIRAMKULAM P.O, PIN-695001.
         BY ADVS.
         SHRI.AJIT G ANJARLEKAR
         SRI.GOVIND PADMANAABHAN
         SRI.RAM MOHAN.G.
         SRI.G.P.SHINOD



  THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Mat.Appeal No.130/2017            2

                            JUDGMENT

A.Muhamed Mustaque. J.

The appellant is the petitioner in O.P.No.719 of 2010 on the

file of the Family Court, Thiruvananthapuram. The said petition

was filed for divorce. That was dismissed for default on

09.05.2010. Thereafter, an application for restoration was filed

on 25.1.2016 along with the application to condone the delay.

These applications have been dismissed as the Family Court was

not satisfied with the reasons set out for condonation of the delay.

The appellant would submit that no opportunity was granted by

the Family Court while considering the application for

restoration. It is submitted that the case was posted for objection

to the application for restoration on 05.02.2016 and there was no

sitting. Thereafter, it was posted on 28.11.2016 and on the day

itself the matter was taken for orders.

2 According to the appellant, while he contacted the

counsel, he was told that the case is pending and he came to know

about the disposal of the case only on 02.7.2015. He personally

enquired about the case at the time he realized the fact that his

case was dismissed for default on 09.05.2010. Thereafter, he

engaged another counsel and apply for the certified copy of the

judgment and to file an application for restoration. The appellant

attributes latches on his counsel for dismissal of the applications.

3. The appellant filed the original petition for divorce and

realisation of money. Though the appellant may be able to file a

fresh petition for divorce, he may not be able to file a petition for

realisation of the money as the same would be barred under

Order IX Rule 9 of the Civil Procedure Code.

4. The learned counsel for the respondents submitted that

the appellant's earlier petition for restitution of conjugal rights

also has been dismissed for default and the appellant was not

diligent enough to prosecute any of the case filed by him.

5. We are of the view that the matter requires a meritorious

consideration. We also notice that large number of pendency of

the cases before the Family Court, Thiruvananthapuram, and the

litigants struggling hard to get the case posted and disposed.

Perhaps, the latches attributed to the lawyer in such scenario

cannot be ruled out.

Taking note of the facts and circumstances, we are of the

view that the Mat.Appeal can be allowed on the following terms:

I. We direct the appellant to pay cost of Rs.25,000/-(Rupees

twenty five thousand only) to the respondents within one month.

ii. Cost shall be paid through the counsel appearing before

this Court.

iii. The parties are directed to appear before the Family

Court on 15.11.2021.

iv. The appellant shall produce the receipt for payment of

cost.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

DR. KAUSER EDAPPAGATH, JUDGE ln