IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 191 of 2008()
1. T.V.ABRAHAM, AGED 56 YEARS,
... Petitioner
Vs
1. SARAMMA ABRAHAM, AGED 40 YEARS,
... Respondent
2. JIBU VARGHESE, S/O.SARAMMA ABRAHAM,
For Petitioner :SRI.R.SANTHOSH BABU
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/06/2008
O R D E R
R. BASANT, J.
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R.P.(FC) No. 191 of 2008
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Dated this the 30th day of June, 2008
ORDER
The petitioner has suffered an ex parte order directing
him to pay maintenance at the rate of Rs.2,000/- and Rs.1,500/-
(total Rs.3,500/-) per mensem to his wife and child. He is said
to be a person who is employed abroad. The petitioner denies
that assertion. Be that as it may, the order has been passed ex
parte. There was only the evidence of the claimant/wife as
P.W.1. The petitioner wants to challenge the order.
2. What is the ground? The short ground raised that the
petitioner has been set ex parte without proper and effective
service of the notice on the petitioner. This is incorrect. The
learned counsel for the petitioner submits that inasmuch as the
petitioner has been set ex parte incorrectly, that order is liable
to be set aside. The order shows that the petitioner was set ex
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parte. I have no reason, on the face of the order, to assume that
he was set ex parte without any valid cause. If the petitioner has
a case that he was set ex parte without any valid cause, the
petitioner must certainly go before the court which set him ex
parte and request that court to invoke the provisions enabling
that court to set aside ex parte order. The petitioner must seek
directions in such application to set aside the ex parte order.
Instead of doing that, the petitioner has taken the next bus to
come to this Court.
3. The question whether he has been set ex parte properly
or not must certainly be decided by the court concerned on the
basis of the materials to be placed before it. At the moment and
with the available inputs it is not possible or necessary for this
Court at this first instance to undertake that responsibility. I
find no reason for this Court now to set aside the ex parte order
passed against the petitioner.
4. I am of opinion, in these circumstances, that it is for the
petitioner to go before the Family Court and attempt to get the
ex parte order passed against him set aside. The learned
counsel for the petitioner submits that the petitioner is willing to
do that. Why then has he come before this Court? The learned
counsel for the petitioner submits that the order is sought to be
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executed and a warrant of arrest has been issued against the
petitioner. The petitioner must certainly go before the court
concerned and seek the withdrawal of the warrant. He may
abide by the conditions that the court below may impose on him.
If he is aggrieved by any such conditions imposed, he can
certainly approach this Court to challenge the said condition
imposed. At any rate, at the moment, I find absolutely no
justification in the prayer to invoke the revisional jurisdiction.
5. This R.P.(FC) is, in these circumstances, dismissed; but
with the observation that the dismissal of this petition will not in
any way fetter the rights of the petitioner to go before the Family
Court and claim to get the ex parte order passed against him set
aside in accordance with law including the law relating to
limitation. The petitioner can apply that the execution of the
order may be suspended till a decision is taken on his application
to set aside the order. The learned Judge of the Family Court
must consider the same and pass appropriate orders on merits
and on appropriate terms.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. to Judge
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