Sameer K vs Febna
2022 Latest Caselaw 8216 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 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
              MAT.APPEAL NO. 203 OF 2022
I.A.NOS.1 & 2 OF 2022 IN OP 281/2020 OF FAMILY COURT,
                      MALAPPURAM
APPELLANT/PETITIONER/RESPONDENT:

         SAMEER K,
         AGED 39 YEARS,
         S/O KOYA, KOTTAYIL HOUSE, P.O.KALIKAVU,
         MALAPPURAM, KERALA-676 525.

         BY ADVS.
         NABIL KHADER
         E.K.ABDUL SALAM


RESPONDENT/RESPONDENT/PETITIONER:

         FEBNA,
         AGED 35 YEARS,
         D/O AHAMMEDKUTTY, PULIVETTY HOUSE,
         P.O.AMALAKKADAVU,
         MALAPPURAM DISTRICT-676 525.

         BY ADV K.RAKESH


     THIS   MATRIMONIAL    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 Mat.Appeal No.203 OF 2022            2




                               JUDGMENT

A.Muhamed Mustaque, J.

This appeal is at the instance of the respondent in

O.P.No281 of 2020 on the files of the Family Court,

Malappuram. He was set ex parte. He filed an application to

set aside ex parte decree along with application to condone the

delay of 15 days in filing the application. These applications

have been dismissed. Against which, this appeal has been

preferred.

2. The Family Court noted that the petitioner on an

earlier occasion also remained absent and ex parte decree was

passed on 21.01.2021. Thereafter, on application to set aside

the ex parte decree, the ex parte decree was set aside. The

appellant was given thereafter an opportunity to file a counter

statement and case was posted to 03.01.2022. On that day

no counter statement was filed. Again, the case was posted

on 11.01.2022. On that day he was absent. Accordingly, he

was set ex parte.

3. The Family Court noted the conduct and attitude of

the appellant. It appears that he is simply attempting to

protract the proceedings. Taking note of this fact, the Family

Court dismissed the application to set aside ex parte.

4. However, taking note of the facts and circumstances,

we are of the view that a final opportunity should be given to

the appellant, however, shall be on terms. The conduct of the

appellant has to be deprecated. He has been dodging the case

for one or the other reasons. We are sure that if a cost is

imposed that would serve the ends of justice.

5. Accordingly, this appeal is allowed on condition that

the appellant pays a sum of Rs.10,000/- towards the costs.

The costs shall be paid within a period of three weeks. The

costs shall be paid either through the counsel appearing before

this Court or before the Family Court. The appellant shall

produce the acknowledgment before the Family Court. The

parties are directed to appear before the Family Court on

01.08.2022. It is made clear that if the cost is not paid, the

appellant will not be entitled for the benefit of this judgment.

On appearance, if the cost is paid, the appellant shall file his

counter affidavit before 17.08.2022. Thereafter, the Family

Court shall dispose of this case as expeditiously as possible.

This appeal is allowed.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SOPHY THOMAS, JUDGE DSV/02.07.2022