Rema Devi vs Syama
2021 Latest Caselaw 21454 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                         &
                  THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
  FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                           OP (FC) NO. 218 OF 2021
IN E.A.NO.241/18 IN E.A.NO.190/18 IN E.P.NO.67/2011 OF FAMILY
                                   COURT, KOLLAM
PETITIONER/PETITIONER/3RD JUDGMENT DEBTOR:

                 REMA DEVI, AGED 66 YEARS
                 W/O. LATE GOPINATHAN PILLAI, RESIDING AT LEKSHMI
                 NIVAS, MANACAUD, VADAKKEVILA, KOLLAM 691 020.

                 BY ADV HARISH GOPINATH



RESPONDENTS/PETITIONERS/DECREE HOLDER:

       1         SYAMA, AGED 36 YEARS
                 D/O. SHYLAJA, SYAMA VILLA, VADAKKE MYLAKKAD,
                 ADICHANALLOOR, KOLLAM 691 573.

       2         NANDU, AGED 15 YEARS
                 D/O. DEEPASH KUMAR, SYAMA VILLA, VADAKKE MYLAKKAD,
                 ADICHANALOOR, KOLLAM 691 573.

       3         DEEPESH KUMAR , AGED 43 YEARS
                 S/O. GOPINATHAN PILLAI, LEKSHMI NIVAS, MANACAUD,
                 VADAKKEVILA, KOLLAM 691 020 (IST JD).

                 BY ADVS.
                 G.VIDYA
                 SRI.SANIL KUNJACHAN


THIS       OP    (FAMILY   COURT)    HAVING    COME    UP   FOR    ADMISSION   ON
29.10.2021,          THE   COURT    ON   THE    SAME    DAY       DELIVERED    THE
FOLLOWING:
 OP (FC) NO. 218 OF 2021

                                        2




                               J U D G M E N T

A.Muhamed Mustaque, J.

The petitioner herein is the petitioner in E.A.No.190

of 2018 in E.P.No.67 of 2011 of the Family Court, Kollam.

That E.A was dismissed for dafault vide order dated

21.11.2018, as petitioner was not represented. Thereafter

an application for restoration was filed as per

E.A.No.241 of 2018. This has been dismissed stating that

the sale was held on 13.06.2018 and subsequently, the

decree holder deposited the amount for stamp paper. It

was further issued that there was no bona fides in the

application.

2. It is to be noted that application for

restoration was filed within time. Latches on the part of

the counsel for not representing the petitioner on the

day when the case was posted cannot result in dismissal

of such application. The Court order should have gone

into the merits of such application and decided the case OP (FC) NO. 218 OF 2021

accordingly. We are of the view that latches as above can

be remedied by imposing costs. Accordingly, impugned

order is set aside on payment of cost of Rs.5000/-. Cost

have to be paid through the counsel appearing for the

decree holder before this Court. Accordingly, E.A.No.190

of 2018 would stand restored. The Court shall consider

the application on merit after hearing both sides at the

earliest.

The original petition is disposed of accordingly.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SOPHY THOMAS, JUDGE

AS OP (FC) NO. 218 OF 2021

APPENDIX

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 25.6.2011 IN O.S. NO. 154/2007 ON THE FILE OF FAMILY COURT KOLLAM.

EXHIBIT P2 TRUE COPY OF THE WILL NO. III 164 OF 5/12/2008 OF KUNDARA SRO EXECUTED BY THE LATE GOPINATHAN PILLAI.

EXHIBIT P3 TRUE COPY OF THE E.A. 190/2018 ON THE FILE OF FAMILY COURT KOLLAM.

EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY RESPONDENTS 1 AND 2 TO EXHIBIT P3 PETITION.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.11.2018 IN E.A.NO. 190/2018 OF FAMILY COURT KOLLAM.

EXHIBIT P6 TRUE COPY OF THE E.A. NO. 241/2018 IN E.A.190/2018 ON THE FILE OF FAMILY COURT KOLLAM.

EXHIBIT P7 TRUE COPY OF THE OBJECTION IN E.A. NO.

241/2018 ON THE FILE OF FAMILY COURT KOLLAM.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31.1.2019 E.A. NO. 241/2018 ON THE FILE OF FAMILY COURT KOLLAM.

EXHIBIT P9 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY TRAVANCORE MEDICITY, KOLLAM DATED 1/3/2021.