Francis vs Lucy

Joseph Francis, J.—This appeal is filed by the petitioner in I.A. Nos. 3789 of 2011 and 3790 of 2011 in O.P. No. 1168 of 2007 on the file of the Family Court, Thrissur. The respondent herein was the respondent in those I.As. The facts of the case are briefly as follows : O.P. No. 1168 of 2007 on the file of the Family Court, Thrissur was filed by the petitioner/wife against the respondent/husband for return of gold ornaments, household articles and for past and future maintenance. In that Original Petition, the respondent/husband remained ex parte. The petitioner/wife filed proof affidavit and the Family Court on the basis of that proof affidavit, allowed that Original Petition and the respondent/husband was directed to pay a total sum of Rs. 2,49,000/- to the petitioner as value of gold ornaments, household articles and the cash received by him, within three months from the date of that order, failing which the respondent was directed to pay interest at 6% per annum from the date of the order till realization. The respondent was further directed to pay maintenance at the rate of Rs. 1,500/- per month from 27.3.2005 onwards till the date of the order and Rs. 2,000/- per month from the date of the order.

The respondent/husband filed I.A. 3789 of 2011 to set aside the ex parte order and also filed I.A. No. 3790 of 2011 to condone the delay of 450 days in filing the application to set aside the ex parte order. The respondent/wife filed counter to those petitions. The Family Court, on considering the contentions of both sides, dismissed the applications, by a common order dated 15.2.2011. Against that common order, the petitioner/husband in those applications filed this appeal. Though in the appeal memorandum it is stated that the appellant is challenging the ex parte order in O.P. No. 1168 of 2007 dated 11.2.2010 also, the learned counsel for the appellant, at the time of hearing, submitted that in this appeal, the appellant is challenging only the common order in I.A. Nos. 3789 and 3790 of 2011.

Heard the learned counsel for the appellant and the learned counsel for the respondent.

The learned counsel for the appellant submitted that due to the death of the mother of the appellant, the appellant had been dull throughout and it was, therefore, he could not participate in the Family Court proceedings and he could not file a petition to set aside the ex parte order in time. The learned counsel further submitted that the appellant could not file the petition to set aside the ex parte order in time as he had to look after his younger brother, who was mentally sick. It was further submitted that the appellant could not engage a lawyer in time to file a petition to set aside ex parte order due to financial difficulties.

The impugned order shows that in O.P. No. 1168 of 2007, the respondent/husband entered appearance in the case and he filed counter through his counsel and when that Original Petition was posted for evidence, it was referred to Adalath for settlement. On the third posting date, the case was returned back as the matter was not settled and the case was adjourned to 23.10.2009. On 23.10.2009, the respondent was set ex parte and the case was adjourned for evidence of the petitioner and only on the 5th posting date, i.e., after four months, the Original Petition was allowed in part. In the counter affidavit filed by the respondent/wife in C.M. Application No. 832 of 2012 in this appeal, it is stated that along with the above Original Petition, there was a petition for divorce as O.P. No. 377 of 2006, which was decreed ex parte by the Family Court, Thrissur on 29.1.2010, dissolving the marriage between the petitioner and the respondent. In paragraph 5 of the counter affidavit, it is stated that the appellant got converted to Hindu religion and married another woman, viz., Suja, on 28.3.2012. It is also stated that the younger brother of the appellant, whom, the appellant regards as a mentally challenged person has executed a partition deed on 10.2.2012. In paragraph 6 of the counter affidavit, it is stated that the appellant initially gave vakalath to Adv. Sri. K.F. Pappachan and thereafter, he changed his counsel and appointed Adv. Sri. M.V. Vinod and subsequently, Adv. Sri. P. Sajeev was engaged by the appellant for defending his case. The learned counsel for the respondent invited our attention to the above facts mentioned in the counter affidavit. The learned counsel for the appellant could not deny these facts. Therefore, as observed by the Family Court, the appellant has failed to show sufficient cause to condone the delay in filing the petition to set aside the ex parte order and also failed to show sufficient cause to set aside the ex parte order. In view of the above aspects of the matter, we find no reason to interfere with the common order passed by the Family Court in I.A. Nos. 3789 and 3790 of 2011 in O.P. No. 1168 of 2007 dated 15.2.2011.

Accordingly, this appeal is dismissed, as it is without any merits. The parties are directed to suffer their respective costs in this appeal.