Kerala High Court
Anshida vs Mahin Kutty on 26 December, 2023
Author: P Gopinath
Bench: P Gopinath
OP(FC) No.710 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
&
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 26TH DAY OF DECEMBER 2023/5TH POUSHA, 1945
OP(FC) NO.710 OF 2023
AGAINST THE JUDGMENT IN OP 506/2013 OF FAMILY COURT,
MUVATTUPUZHA
PETITIONERS:
ANSHIDA,
AGED 36 YEARS, D/O. EBRAHIM, MALIYANVEEDAN HOUSE,
MUDICKAL KARA, PERUMBAVOOR, ERNAKULAM, PIN 683 547
BY ADVS.
SRUTHY N. BHAT
AJEESH K.SASI
NIKITA J. MENDEZ
RESPONDENTS:
1 MAHIN KUTTY,
S/O. ABDUL KAREEM, KINATTINGALKUDY HOUSE,
KARAKKUNNAM KARA, MULAVOOR VILLAGE, ERNAKULAM,
PIN 686 673
2 ABDUL KAREEM, KINATTINGALKUDY HOUSE, KARAKKUNNAM
KARA, MULAVOOR VILLAGE, ERNAKULAM, PIN 686 673
3 SHERIFA, W/O. ABDUL KAREEM, KINATTINGALKUDY HOUSE,
KARAKKUNNAM KARA, MULAVOOR VILLAGE, ERNAKULAM,
PIN 686 673
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
26.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC) No.710 of 2023
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JUDGMENT
Dated this the 26th day of December, 2023
GOPINATH P., J.
The petitioner in this original petition is the petitioner in O.P.
No.506 of 2013 on the files of the Family Court, Muvattupuzha. O.P.
No.506 of 2013 was a petition filed for return of certain amounts and
gold ornaments. The original petition was posted for evidence on
17.11.2021. However, on that day, there was no representation for the
petitioner and the original petition was dismissed for default.
2. The petitioner, therefore, filed R.P No.20 of 2021 for
restoration of O.P. No.506 of 2013, which was allowed by the Family
Court, Muvattupuzha on payment of cost. The operative portion of the
order of the Family Court in R.P. No.20 of 2021 in O.P. No.506 of 2013
dated 06.07.2023 reads thus :-
"In the result R.P. 20/2021 is allowed on payment of cost
Rs.1000/- each to the respondents on or before 25.07.2023.
Petitioner to file memo for the receipt of cost by the respondents
acknowledged by either of the respondents. For reporting
compliance call on 26.07.2023."
3. The learned counsel appearing for the petitioner would
submit that the petitioner paid the cost of Rs.1000/- to each of the
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respondents as directed by the Family Court to the counsel appearing
for the respondents before the Family Court, Muvattupuzha as can be
seen from the endorsement on Ext.P6 memo filed by the petitioner. It
is submitted that the Family Court, thereafter, considered the matter
on 26.07.2023 and dismissed R.P No.20 of 2021 holding that the
memo as directed is not filed.
4. The learned counsel points out that in terms of Ext.P5
order dated 06.07.2023, the cost has to be paid on or before
25.07.2023. It is submitted that the endorsement by the counsel for
the respondents on Ext.P6 memo shows that the cost was paid and
the memo was filed on 25.07.2023. Therefore, it is submitted, there
is no reason for the Family Court to have dismissed the R.P on the
finding that the memo as directed has not been filed. The learned
counsel for the petitioner submits that without standing on any
technicality, the petitioner is now willing to deposit the cost ordered at
Ext.P5, before the Court.
5. Having heard the learned counsel for the petitioner and
having perused Exts.P5 and P7 orders and having noticed the
endorsement on Ext.P6 memo, we are of the opinion that Ext.P7 order
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can be set aside on condition that the petitioner deposits the cost as
directed to be paid in terms of Ext.P5 order before the Family Court
within a period of two weeks from the date of receipt of a certified copy
of this judgment. On such cost being deposited, R.P. No.20 of 2021
will stand allowed and the Family Court will proceed to consider and
dispose of O.P. No.506 of 2013 on its merits.
The original petition is disposed of as above.
Sd/-
GOPINATH P., JUDGE
Sd/-
G. GIRISH, JUDGE
ded
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APPENDIX OF OP(FC) 710/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN O.P. NO.
506/2013 FILED BEFORE THE FAMILY COURT,
MUVATTUPUZHA
EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENTS
IN THE ABOVE ORIGINAL PETITION
EXHIBIT P3 TRUE COPY OF THE RESTORATION PETITION R.P.NO.
20/2021 IN THE O.P.NO. 506/2013 BEFORE THE
FAMILY COURT, MUVATTUPUZHA
EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT IN R.P.NO. 20/2021 BEFORE THE FAMILY
COURT, MUVATTUPUZHA
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 06-07-2023 IN
R.P.NO.20/2021 IN O.P.NO. 506/2013 OF THE FAMILY
COURT AT MUVATTUPUZHA
EXHIBIT P6 TRUE COPY OF THE MEMO DATED 25-07-2023 FILED BY
THE PETITIONER SIGNIFYING THE PAYMENT OF THE COST
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 26-07-2023 IN
R.P.NO. 20/2021 IN O.P.NO. 506/2013 OF THE FAMILY
COURT, MUVATTUPUZHA
