IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27965 of 2008(S)
1. MARYKUTTY, D/O.JOSEPHINE
... Petitioner
Vs
1. GEORGE MARKOSE,
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.GOPAKUMAR R.THALIYAL
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :25/11/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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W.P.(C). No.27965/2008-S
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Dated this the 25th day of November, 2008.
J U D G M E N T
Raman, J.
The petitioner is the wife. The respondent/husband filed
O.P.No.898/2005, before the Family Court, Thiruvananthapuram, against
wife and their daughter Shainy as well as his son-in-law Jerald John for an
injunction restraining them from committing any waste and also for a
mandatory injunction for eviction. The matrimonial tie is not broken. In the
main O.P, the parties entered appearance. However, according to the
petitioner, there was a compromise talk and the matter was adjourned twice
and whileso the petitioner was made to understand that the husband is not
going to press the matter. Hence, she did not appear thereafter in the case.
But in violation of such assurance, the husband appeared in the case and got
an ex parte decree in the case against the wife and other parties. Ext.P2 is
the decree passed as per which the petitioner is restrained from committing
any waste and also ordered the daughter and son-in-law to give vacant
possession of the building. Subsequently, on coming to know of the decree,
the petitioner filed an application for setting aside the ex parte decree.
Since there was a delay, she also filed a petition for condonation of delay.
W.P.(C) No.27965/2008
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The court below by Ext.P8 order declined to condone the delay and rejected the
petition for setting aside the ex parte decree. According to the court below, if
there was a compromise between the parties, a compromise petition would have
been filed that was not done in the case. Secondly, on the day on which the
case was posted, the respondents in the O.P did not appear and hence, there was
no alternative but to delcare them ex parte and proceed to pass the decree based
on the proof affidavit filed by the husband. The delay was also not condoned
since, according to the court below, as a matter of fact, if there was any
compromise, the matter could have been informed to the counsel and at any rate
the petitioner should have enquired with the counsel about the case. Mere
saying that she did not have any knowledge of the decree was not found
sufficient reason to condone the delay and to set aside the ex parte decree.
Challenging the same, this writ petition is filed.
2. We have heard the parties.
3. It is true that on the appointed day, the petitioner did not appear
and the court below passed the decree declaring the respondents ex parte. But
at the same time, even from the order Ext.P8 it could be seen that on an earlier
occasion when the case was posted it was the consistent stand of the petitioner
that there was a compromise talk and the matter was adjourned. Therefore, it is
W.P.(C) No.27965/2008
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not a case put forth for the first time after the decree is passed. There was some
talk of a compromise which had been made known to the court below by
making a submission in that behalf and the case was also adjourned. The fact
that the dispute relates to the matrimonial house and further fact that the
matrimonial tie still subsists between the parties, would also support the
contention of the petitioner that non-prosecution of the case was not willful,
since at no point of time had the petitioner been sent out from the house.
During the pendency of the proceedings also she was continuing and today also
she is continuing to live there. Further, her right to reside in the matrimonial
house is not in dispute so long as the matrimonial tie subsists. True, in the
matter of committing any waste, the court below has passed an injunction but so
long as the matrimonial tie subsists, the son-in-law and other parties, they
cannot be straight-a-way denied the right of visiting the mother.
4. In the above circumstances, unless an opportunity is given to the
petitioner to contest the matter, great hardship will be caused. In the interest of
justice, we think the appropriate course is to set aside the ex parte decree after
condoning the delay so as to give the parties an opportunity to contest the
matter on merits. Accordingly, Ext.P8 is set aside. The application for
condonation of delay and the petition to set aside the ex parte decree are
W.P.(C) No.27965/2008
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allowed. O.P stands restored to file and the parties shall appear before the
Family Court, Thiruvananthapuram, on 08/01/2009.
(P.R. Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
ms