Sajeena vs Asharaf
2022 Latest Caselaw 3614 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                   &
           THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
                  MAT.APPEAL NO. 162 OF 2020
   AGAINST THE ORDER/JUDGMENT IN OP 555/2011 OF FAMILY
                             COURT,KOLLAM
APPELLANT:

            SAJEENA, AGED 44 YEARS, HASEENA MANZIL,
            NJARAKKAL CHERRY, PERINAD P.O. KOLLAM TALUK.

            BY ADVS.
            DILEEP S.
            T.THASMI
            KRISHNAPRIYA G.
            ATHIRA A.MENON



RESPONDENTS:

    1       ASHARAF, S/O. JUHUBAR KUNJU, KALKURUMBU VILA
            VEEDU, MURUNTHAL CHERRY, PERINAD P.O. KOLLAM
            TALUK, KOLLAM DISTRICT 691 601.

    2       SUBAIDA BEEVI, W/O. IBRAHIM KUTTY, KIZHAKKATHIL
            NAMBIADIKAL, CHAVARA BRIDGE P.O. KARUNAGAPPALLY
            TALUK, KOLLAM DISTRICT 691 583.

            BY ADV SRI.H.RAMANAN




        THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2022,    THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 MAT.APPEAL NO. 162 OF 2020

                              ..2..




                 J U D G M E N T

A. Muhamed Mustaque, J The appellant was the petitioner in O.P No.555

of 2011. The above original petition was filed for

realisation of an amount of Rs.23,20,000/- from the

respondents. The first respondent was her husband.

The second respondent is the mother of the first

respondent. The petition was dismissed on 31.08.2017

on account of the absence of the appellant.

Thereafter, an application for restoration was filed.

This has been dismissed holding that in an earlier

occasion on 17.07.2015, this case was dismissed for

default.

2. We are not satisfied with the impugned

order. If there is sufficient cause for restoration

of the present petition, it cannot be dismissed

stating that the petition was dismissed for default

earlier. It is specifically stated by the appellant

that her lawyer failed to appear and intimate about

the posting of the case. As the case was dismissed

for default due to the latches on the part of the

lawyer, the parties cannot be blamed for that. The

Family Court shall not dismiss the cases for default MAT.APPEAL NO. 162 OF 2020

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unless the Court is of the view that the parties are

deliberately abstaining to appear before the Court,

in spite of all the efforts made by the Court to

summon the parties. The court should not carry

away the impression that due to the absence of the

lawyer, the parties have no interest in proceeding

with the case. The family Court shall not function

like an ordinary civil court. The litigants should

not suffer on account of such latches on the part of

the lawyers. We therefore, set aside the impugned

order and restore the petition filed by the

appellant. The parties are directed to appear before

the Family Court on 25.04.2022.

This Mat. Appeal is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

SOPHY THOMAS JUDGE PR MAT.APPEAL NO. 162 OF 2020

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APPENDIX OF MAT.APPEAL 162/2020

PETITIONER ANNEXURES

ANNEXURE A A TRUE COPY OF I.A. NO. 1990/2017 IN O.P. NO. 555/2011 OF FAMILY COURT, KOLLAM.