Divya Manohar vs Hari Govind R

V.K. Mohanan, J.—The respondent in a common order dated 06.12.2013 in I.A Nos.1576 of 2013 and 1576(A) of 2013 in O.P No.230 of 2012 preferred the above petition under Article 227 of the Constitution of India challenging the above common order by which the court below condoned the delay of 217 days that occurred in filing an application to set aside ex-parte decree in O.P No.230 of 2012, in favour of the respondent herein.

We heard Smt. Bindhu Sasthamangalam, learned counsel for the petitioner. Though notice was served on the respondent, nobody has turned up and no objection is raised against the prayer in this petition.

Petitioner herein initially approached the Family Court, Thiruvananthapuram, by filing a petition with a prayer for divorce and also for return of gold ornaments etc. On a perusal of the impugned order it can be seen that though several opportunities have been given to the respondent herein, who is the respondent in the main proceedings pending before the court below, he failed to contest the matter. However, on the basis of the finding in the impugned order, as indicated above, the court below granted a further opportunity to the respondent herein to contest the matter in the court below, by setting aside the ex-parte decree, after condoning the delay of 217 days that occurred in filing the petition to set aside the ex-parte decree, while the execution petition filed by the petitioner herein was pending before the court below.

Learned counsel for the petitioner vehemently submitted that even from the impugned order it can be seen that the respondent herein, who is the husband of the petitioner, was negligent in contesting the matter in spite of the fact that he was given several opportunities. But, the court below, overlooking the above facts and circumstances mentioned in the impugned order, again granted an opportunity to the respondent herein by imposing a condition directing him to pay a sum of Rs.1,000/- as cost within fifteen days. According to the learned counsel, the said order of the court below is legally and factually unsustainable and is liable to be set aside.

We have considered the argument of the learned counsel for the petitioner. Having been perused Ext.P4 order, as rightly pointed out by the learned counsel for petitioner, it can be seen that though the main matter initially posted on 16.03.2010 in the Family Court, Thiruvananthapuram for the appearance of the respondent, he did not appear and subsequently on 19.12.2010 the respondent was set ex-parte. Subsequently though the ex-parte order was set aside, the respondent again failed to appear before the court on 13.03.2011 on which date the respondent was again set ex-parte. Thereafter also the ex-parte order was set aside and though opportunities were given to the respondent he did not co-operate with the proceedings pending before the court below and he did not appear for the settlement and counseling. It is further discernible from the impugned order that in the Family Court at Thiruvananthapuram, though there was a posting on 03.12.2011 for filing of proof affidavit of the petitioner, in the meanwhile, the case was transferred to Family Court at Nedumangad. Though the case was posted on three occasions for settlement, the respondent failed to appear in that court. Thus, the case was posted on 04.12.2012, on which date the respondent was absent and, accordingly, he was set ex-parte and, accordingly, the case was posted for the ex-parte evidence on 06.12.2012. On the above date again the respondent herein had preferred an application to set aside the ex-parte order but that petition was also dismissed on 15.01.2013 since the respondent as well as his counsel were absent. Thereafter the respondent herein preferred I.A No.1576 of 2013 to condone the delay of 217 days that occurred in filing application, ie, I.A No. 1576 (A) of 2013 to set aside the ex-parte decree.

From the above facts and proceedings of the court as discernible from Ext.P4, it can be seen that the respondent was negligent in appearing before the court and contesting the matter in spite of the fact that he was given several opportunities for the same. However, the court below after having condoning the delay allowed the petition to set aside the ex-parte decree. Even though there was negligence from the part of the respondent we are of the view that the court below is correct in giving a further opportunity to the respondent to contest the matter but at the very same way we cannot ignore the fact that the petitioner herein was earnestly prosecuting her petition before the court right from 2012. But, without considering the above fact while allowing the delay petition as well as the petition to set aside the ex-parte decree, the court below ordered to pay only a sum of Rs.1,000/- as cost to the petitioner herein which according to us is insufficient to meet the ends of justice. Therefore, while upholding the order of the court below granting an opportunity to the respondent to contest the matter, we are of the view that the quantum of cost fixed by the court below is liable to be enhanced to save the interest of the petitioner who is a lady, who was prosecuting the matter earnestly, particularly when the respondent was negligent in contesting the matter and failed in co-operating with the proceedings before the court.

In the result, this petition is disposed of with slight modification of Ext.P4 order particularly with respect to the quantum of cost fixed by the court below and accordingly the respondent is directed to pay a sum of Rs.5,000/- as cost to the petitioner herein within one month from today. The respondent is free to pay the amount either directly to the petitioner herein or by deposit of the same in the court whichever subject to the satisfaction of the learned Judge of the Family Court, Nedumangad. In case of failure on the part of the respondent in paying the cost within the time stipulated, I.A Nos. 1576 of 2013 and 1576 (A) of 2013 shall stand dismissed.

Petition is disposed of accordingly.