Sajithkumar vs S.Sajitha
2023 Latest Caselaw 8515 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                   &
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
   MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
                      OP (FC) NO. 429 OF 2023
 AGAINST THE ORDER/JUDGMENT IN OP 811/2019 OF FAMILY COURT,
                              PALAKKAD
               OP 811/2019 OF FAMILY COURT, PALAKKAD
PETITIONER/RESPONDENT

             SAJITHKUMAR, AGED 37 YEARS
             S/O SOUNDAR RAJAN, VELLISARAM GRAMAM,
             BEHIND LORD SIVA TEMPLE,
             WEST PERUVEMBU, PALAKKAD
             REP. BY POWER OF ATTORNEY HOLDER,
             SOUNDER RAJAN A. AGED 63, S/O ARUMUGHAN,
             VELLISARAM GRAMAM, BEHIND LORD SIVA TEMPLE,
             WEST PERUVEMBU, PALAKKAD., PIN - 678531
             BY ADVS.
             SAJAN VARGHEESE K.
             LIJU. M.P


RESPONDENTPETITIONERS:

             S.SAJITHA, AGED 37 YEARS
             D/O P.SASI, 44G/29/1,
             PUTHUR MARIYAMMAN KOVIL VEEDHI, PEELAMEDU PUTHUR,
             PEELAMEDU, COIMBATORE, TAMILNADU., PIN - 641004

      THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
07.08.2023,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 OP(FC)No.429 of 2023
                                        2




       A.MUHAMED MUSTAQUE & MOHAMMED NIAS C.P., JJ
          ------------------------------------------------------------------
                            OP(FC)No.429 of 2023
                       --------------------------------------------
                  Dated this the 7th day of August, 2023


                                 JUDGMENT

Mohammed Nias.C.P..J

This original petition is filed challenging Ext.P7 order that

allowed the application filed by the respondent herein seeking to set

aside the ex-parte order along with an application to condone the

delay of 150 days in filing the same. The court below, by the

impugned order allowed the applications on condition of payment of

cost of Rs.2000/- to the petitioner herein. Challenging the said order,

the learned counsel for the petitioner submits that the basis for

applying for setting aside the ex-parte decree was that the respondent

did not receive notice, but the said contention was not accepted by

the lower court and despite the same the application was allowed on

cost. Learned counsel further submits that if the reason put forth in

the application to set aside the ex-parte order was found to be wrong

then the application ought not have been allowed.

2. Learned counsel for the respondent however maintains

before us that his client did not receive the notice of the proceedings OP(FC)No.429 of 2023

from the family court. Be that as it may, we note that the court below

had exercised a discretion in allowing the application to set aside the

ex-parte order on terms possibly though it did not fully agree with the

averments in the affidavit filed in support of the application to set

aside the ex-parte order so as to enable the parties to contest on

merits. We also feel that the matter has to be decided on merits and

the attempt of the court below was for ensuring a contest on merits.

We do not find such exercise of discretion by the court below to be

wrong, to be interfered with in this original petition, much less under

Article 227 of the Constitution of India. We do not find any merit in

the original petition and the same is accordingly dismissed,.

Sd/- A.MUHAMED MUSTAQUE, JUDGE

Sd/- MOHAMMED NIAS C.P., JUDGE dlk 7.8.2023 OP(FC)No.429 of 2023

APPENDIX OF OP (FC) 429/2023

PETITIONER's EXHIBITS Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 20.10.2021 BY THE PETITIONER.

Exhibit P2 TRUE COPY OF THE ORIGINAL PETITION IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD.

Exhibit P3 TRUE COPY OF THE PETITION IN I.A.NO.2/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD .

Exhibit P4 TRUE COPY OF THE PETITION IN IA NO.3/22 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD.

Exhibit P5 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.2/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.3/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD.

Exhibit P7 TRUE COPY OF THE ORDER DATED 24.02.23 PASSED IN I.A.NO.2/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD.

Exhibit P8 TRUE COPY OF THE ORDER DATED 13.03.23 PASSED IN I.A.NO.3/2022 IN OP NO.811/2019 ON THE FILE OF FAMILY COURT, PALAKKAD.