IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15371 of 2009(R)
1. M.V.UNNIKRISHNAN, S/O.GOPALAN,
... Petitioner
Vs
1. K.P.SHEEJA, D/O.SREENIVASAN,
... Respondent
2. SAYOOJ, (MINOR), 7 YEARS
For Petitioner :SRI.RAJESH P.NAIR
For Respondent :SRI.V.V.SURENDRAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :27/07/2009
O R D E R
A.K.BASHEER & P.S.GOPINATHAN, JJ.
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W.P.(C)No.15371 OF 2009 - R
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Dated this the 27th day of July, 2009
JUDGMENT
Basheer, J:
Petitioner is the former husband of respondent No.1 and the
father of respondent No.2.
2. Initially, in a proceeding under Section 125 of the Code of
Criminal Procedure, petitioner was directed to pay maintenance to
the respondents at the rate of Rs.500 and 300 respectively. Later,
on an application filed by the wife and child, maintenance amount
was enhanced to Rs.3,000/- each payable with effect from
June 2, 2004.
3. Admittedly, in the said proceedings petitioner remained
absent and he was set ex parte. Though he filed C.M.P.937/05 to
set aside the ex parte order, it was dismissed for default on August
13, 2007.
4. When the maintenance award was sought to be executed,
he filed W.P.(C)No.2450/09 before this court challenging the order
of enhancement of maintenance. The writ petition was disposed of
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giving liberty to the petitioner to seek other appropriate
remedies before the family court itself.
5. Thereafter, petitioner filed CMP 228/09 to restore the
application to set aside the ex parte order. This application was
supported by CMP 227/09 to condone the delay of 524 days in
filing the restoration petition.
6. The court below, after hearing the parties and
considering the entire aspects of the case, held that the
petitioner had failed to give a satisfactory explanation for the
inordinate delay. Therefore, the delay petition was dismissed
and consequently the petition for restoration also ended in
dismissal. The above orders (Exts.P5 and P6) are under
challenge in this petition filed under Article 227 of the
Constitution of India.
7. We have heard learned counsel for the parties and
perused the materials available on record. As rightly noticed by
the Family court, petitioner could not give any valid reason or
explanation for the long delay of 524 days in filing the
restoration application. Though he had produced Ext.P3,
medical certificate issued by an Ayurveda physician, no
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corroborative evidence was adduced by him. The doctor was not
examined. The contention of the petitioner was that he was
suffering from rheumatic complaints, back pain and hyper
tension. But in the absence of any satisfactory and corroborative
evidence, the court below did not accept the above explanation.
8. Learned counsel for the respondent/wife submits that as
on today a sum of Rs.3,51,000/- (approximately) is due from the
petitioner, towards maintenance. His immovable property is
ordered to be sold. But the sale did not take place and it stands
adjourned to another date.
9. Having carefully perused the materials available on
record and having regard to the peculiar facts and
circumstances of the case, we are of the view that petitioner can
be granted an opportunity to contest the case on merits, but of
course, on terms.
10. The restoration application C.M.P.No.228/09 on the file
of the Family Court, Kozhikode shall stand allowed ignoring the
delay on condition that the petitioner deposits a sum of
Rs.75,000/- before the court below on or before August 31, 2009.
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11. If the petitioner fails to remit the said sum before the
court below as directed above, this writ petition shall stand
dismissed. The amount, if any, deposited by the petitioner shall
be disbursed to the respondents.
12. It will be open to the court below to pass appropriate
interim orders with regard to the pending execution proceedings
as it deems fit. The court below shall dispose of
C.M.P.No.707/04 as expeditiously as possible, at any rate, within
three months from the date of receipt of a copy of this judgment.
Writ petition is disposed of as above.
(A.K.BASHEER, JUDGE)
(P.S.GOPINATHAN, JUDGE)
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