Kerala High Court
Ramseena K.A vs Shabeer K.K on 22 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:4957
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
OP (FC) NO. 814 OF 2024
AGAINST THE JUDGMENT DATED 12.03.2024 IN OP NO.64 OF
2023 OF FAMILY COURT, KANNUR
PETITIONER/PETITIONER/RESPONDENT:
RAMSEENA K.A., AGED 25 YEARS
D/O AHAMMAD K.M, KUROOLY HOUSE,
YEMMAMADU P.O, MADIKERI, KODAGU DT.,
KARNATAKA., PIN - 571214
BY ADVS.
M.MUHAMMED SHAFI
T.RASINI
ADHEELA NOWRIN
RAMEESA RASHEED
RESPONDENT/RESPONDENT/PETITIONER:
SHABEER K.K., AGED 37 YEARS
S/O KASIM MECHOTH , KANIYAN KANDY HOUSE,
CHERUPAZHASSI P.O, KOLACHERY, KANNUR DT.,
PIN - 670601
SRI C H ABDUL RASAC
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
22.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
JUDGMENT
Devan Ramachandran, J.
The respondent herein filed O.P.No.64/2023 before the
learned Family Court, Kannur against the petitioner, seeking
divorce.
2. The petitioner, however, was not present on certain
days when the matter was listed; and the learned Court appears
to have set her exparte and then decreed the Original Petition
against her. She, thereupon, filed I.A.No.5/2024, invoking the
provisions of Order IX Rule 13 of the Code of Civil Procedure, to
have the exparte decree set aside; along with I.A.No.4/2024,
praying that the delay of 50 days in filing it be condoned.
3. Interestingly, the learned Family Court has allowed
both the afore applications, however, imposing costs of
Rs.25,000/- on the petitioner, which condition she impugns as
being excessive and onerous.
4. Smt.Rameesa Rasheed - learned counsel for the
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petitioner, argued that, when the learned Family Court found
sufficient cause for the aforementioned interim applications to be
allowed, it was improper for it to have imposed costs as high as
Rs.25,000/-, particularly because, her client belongs to
economically weak strata and is unemployed. She, therefore,
prayed that the impugned condition in Ext.P7 be vacated.
5. Sri.Abdul Rasac C.H. - learned counsel for the
respondent, however, submitted that the submissions of
Smt.Rameesa Rasheed, that the learned Trial Court has found
sufficient grounds to have been impelled by the petitioner for the
delay in filing the application to have the exparte decree set
aside, and in not appearing before the learned Trial Court before
the judgment was delivered, are not correct, as is evident from
the impugned order itself. He showed us that, in paragraph 7 of
the impugned order, the learned Family Court has found that the
actions of the petitioner is 'the height of contumacy and
lethargy' sic; and that the subsequent paragraph records that ' the
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reasons for setting aside the ex parte decree and for condonation
of the inordinate delay are not proved to be sufficient ' (sic). He
contended that, normally, in such circumstances, the learned
Family Court ought to have dismissed the applications, but that
it is only in fairness and in consideration of equity that it
allowed it, however, imposing costs, which is just and
reasonable, since his client has been subjected to great prejudice
and harassment on account of the deliberate delay caused. He
thus prayed that this Original Petition be dismissed.
6. We have examined the impugned order and find
favour in part with what has been stated before us by Sri.Abdul
Rasac. As rightly pointed out by him, the learned Family Court
has not found conclusively that the reasons stated by the
petitioner are sufficient to have the delay condoned, or for the
exparte decree to be set aside; but still allowed the applications
in lenity and persuaded by the necessity of the Original Petition
being disposed of on merits, rather than on technical grounds.
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7. However, the learned Family Court thereafter, took
the view that an amount of Rs.25,000/- would be apposite costs,
holding it to be commensurate for the ' delay, expenses and
inconveniences suffered by the respondent ' (sic). Obviously, the
assessment of costs is in exercise of the discretionary power of
the Court; and necessarily based on certain amount of estimation
and conjectural assessment.
8. That said, the petitioner is stated to be without any
means and says that she was diligently prosecuting the Original
Petition, though unable to be present on certain days due to the
reasons explained. We are of the firm opinion that, even when
we approve and support the observations and opinion of the
learned Family Court, the amount of costs quantified by it is
excessive, particularly when the delay in filing the application to
have the ex parte decree set aside is only 50 days.
9. We are consequently of the view that the costs should
be revised to a lesser amount of Rs.3,000/-. In fact, this is not
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opposed by Sri.Abdul Rasac - learned counsel for the respondent.
Resultantly, we allow this Original Petition to the limited extent
of modifying Ext.P7 order, thus reducing the costs imposed to
Rs.3,000/-. We also give time to the petitioner to tender the
afore amount to the respondent, through his learned counsel
before the learned Trial Court, till 03.02.2025.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
SAS/RR
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APPENDIX OF OP (FC) 814/2024
PETITIONER EXHIBITS
Exhibit P1 CERTIFIED COPY OF THE PETITION IN OP NO.
64/2023 OF THE FAMILY COURT, KANNUR
FILED BY THE RESPONDENT HEREIN
Exhibit P2 CERTIFIED COPY OF THE JUDGMENT IN OP NO.
64/2023 DATED 12-03-2024 OF THE FAMILY
COURT, KANNUR
Exhibit P3 TRUE COPY OF THE I.A NO. 05/2024 IN OP
NO. 64/2023 DATED 01-06-2024 FILED BY
THE PETITIONER HEREIN
Exhibit P4 TRUE COPY OF THE I.A NO. 04/2024 IN OP
NO. 64/2023 DATED 01-06-2024 FILED BY
THE PETITIONER HEREIN
Exhibit P5 TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENT HEREIN IN IA. NO. 05/2024 IN
Exhibit P6 TRUE COPY OF THE COUNTER FILED BY THE
RESPONDENT HEREIN IN IA. NO. 04/2024 IN
Exhibit P7 CERTIFIED COPY OF THE COMMON ORDER IN
I.A. NO. 04/2024 AND I.A. NO. 05/2024 IN
OP. NO. 64/2023 DATED 20-11-2024
