IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 769 of 2009()
1. MUHAMMED SHAFI,AGED 30 YEARS,
... Petitioner
Vs
1. NADIYA, AGED 23 YEARS,
... Respondent
2. FATHIMA SHERIN (MINOR),
For Petitioner :SRI.MANJERI SUNDERRAJ
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :13/10/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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C.M.Appl.No.2810 of 2009 &
Mat.Appeal No.769 of 2009
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Dated this the 13th day of October, 2009
ORDER/JUDGMENT
BASANT, J.
This application is to condone the delay of 566 days in filing
a Matrimonial Appeal, which appeal in turn challenges an order
directing the appellant to pay an amount of Rs.3,20,000/- being
the treatment and transportation expenses along with interest
for his minor daughter aged 2 years.
2. The delay is gross and we are not satisfied that
sufficient reasons have been shown to justify the prayer for
condonation of delay. According to the appellant, he was under
the impression that his former counsel shall file the appeal. To
say the least, the reason stated does not at all satisfy us as
sufficient to condone the long and inordinate delay of 566 days.
3. In our anxiety to satisfy ourselves that the refusal to
condone the delay does not result in failure or miscarriage of
justice, we requested the learned counsel for the appellant to
explain the nature of the challenge which he wants to mount
against the impugned order. The claim is for an amount of Rs.3
Mat.Appeal No.769 of 2009 2
lakhs incurred for the treatment of the minor daughter of the
appellant and an amount of Rs.20,000/- incurred as
transportation expenses.
4. Paternity is admitted. That the child was sick is
admitted. That the child had undergone treatment including
surgery at Sree Chithira Hospital, Thiruvananthapuram is also
admitted. That the expenditure claimed has been incurred for
treatment is also not disputed. His ability to meet the
expenditure is not disputed.
5. What then is the dispute ? The appellant took up a
contention that the expenses were incurred and it was he who
incurred such expenditure and discharged the liability. The
dispute fell in this very narrow compass. PWs 1 to 3 were
examined on the side of the claimant and Exts.A1 and A2 series
were marked. On the side of the appellant, he examined himself
as RW1 and proved Exts.B1 to B5. Ext.X1 series were also
marked.
6. The court below came to the conclusion that expenses
were incurred as claimed by the claimants and that the amounts
were paid by the claimants and not by the appellant herein. On
Mat.Appeal No.769 of 2009 3
that finding, the court below proceeded to pass the impugned
order.
7. The court below has considered the question in detail.
There was significant and total absence of evidence in support of
the assertions of the appellant that it was he who met the
expenditure for treatment. Of course, certain bills (originals) for
expenditure were produced by the appellant. But those amounts
are admittedly not claimed by the claimants in the proceedings
before the court below. In the total absence of any evidence, the
only possible conclusion that the court could have reached is
that the expenses covered by Ext.A1 series were all incurred by
the claimants and such liability was not discharged by the
appellant. Thus we find that the Family Court has not committed
any impropriety or incorrectness in passing the impugned order.
8. In this application for condonation of delay, we have
chosen to hear the learned counsel for the appellant on merits
only to satisfy ourselves that our rejection of the request to
condone the delay does not result in any failure/miscarriage of
justice.
Mat.Appeal No.769 of 2009 4
9. We are not satisfied that it is necessary, in these
circumstances, to order notice to the respondent/claimants in
this application for condonation of delay. The matter can be
disposed of without notice to them.
10. In the result, C.M.Appl.No.2810 of 2009 to condone
the delay is dismissed. Consequently the Mat.Appeal shall stand
rejected as bared by limitation.
11. The learned counsel for the appellant contends that
the Family Court does not grant opportunity to the judgment
debtor to raise all relevant contentions against the attempt for
execution. If that be so, that grievance is to be raised in
appropriate proceedings. That submission does not also
persuade us to condone the delay or admit the appeal.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-