High Court Kerala High Court

Puthiyapurayilo Abdul Salam vs P.P.Mariyumma on 11 December, 2006

Kerala High Court
Puthiyapurayilo Abdul Salam vs P.P.Mariyumma on 11 December, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 5529 of 2005(G)


1. PUTHIYAPURAYILO ABDUL SALAM,
                      ...  Petitioner

                        Vs



1. P.P.MARIYUMMA, AGED 31 YEARS,
                       ...       Respondent

2. MUHAMMED SULTHAN, 11 YEARS (MINOR).

3. SHAIK, 8 YEARS, (MINOR).

4. AFARA, 4 YEARS, (MINOR),

                For Petitioner  :SRI.A.MOHAMED MUSTAQUE

                For Respondent  :SRI.M.SASINDRAN

The Hon'ble MR. Justice K.A.ABDUL GAFOOR
The Hon'ble MR. Justice K.R.UDAYABHANU

 Dated :11/12/2006

 O R D E R
                         K.A.ABDUL GAFOOR &

                         K.R. UDAYABHANU, JJ.

          ==============================

                       W.P.C.NO. 5529 OF 2005

            ============================


         DATED THIS THE 11th Day of December   2006


                                 JUDGMENT

Abdul Gafoor,J.

A petition was filed before the Family Court by the husband

represented by his father, the power of attorney holder to set

aside the ex parte order and to prosecute the petition

representing through the power of attorney holder. The reason

for dismissal of the petition is that “the petitioner is not at all

having any locus standi to file either an application to

permit him to represent the counter petitioner on the

strength of a power of attorney or to pray for setting

aside the ex parte order passed against the counter

petitioner in M.C.No.443/03”. When the party was away

abroad, necessarily his duly constituted power of attorney holder

can represent him for the purpose of prosecuting the case and to

WPC.5529/2005 -2-

seek to set aside the ex parte order. Those should have to be

decided on merit. In case, the presence of the husband is

required for counselling or conciliation, necessarily at that time

his presence can be insisted.

2. Permission to be represented in a suit by a duly

consiuted power of attorney does not disable in any manner, the

court to pursue efforts for settlement of a case as provided in

Section 9 of the Family Courts Act 1984. Of course, in terms of

Section 13 no party shall be entitled as of right to be

represented by a legal practitioner. Right to be represented by a

legal practitioner in a case and to be represented to prosecute or

defend a case through a power of attorney holder when the

incumbent is out of India, are different. The respondent has no

case that the father of her husband, the duly constituted power

of attorney, is a legal practitioner. In case the

petitioner/husband does not appear in person for settlement

talk or conciliation, upon direction by the Family Court or fails to

attend counselling on the dates notified by the counsellor,

nothing prevents the court to take action against him on such

default as provided in Rule 25 of the Family Courts (Kerala)

WPC.5529/2005 -3-

Rules 1989.

On the aforesaid reason, Ext.P2 is set aside and the Family

Court is directed to consider both the applications on merit

afresh on payment of Rs.25,000/- towards the maintenance

accrued to the respondent within a period of one month from

today. The writ petition is disposed of accordingly.

K.A.ABDUL GAFOOR

JUDGE

K.R.UDAYABHANU,

JUDGE

ks.