Habeeba Thachampara vs Pullattil Sulaikha and Pilakkadan Abdul Razack @ Kunhani

K.M. Joseph, J.—The appeal is filed challenging the order passed by the Family Court, Malappuram in I.A.Nos. 2023 and 2024 of 2008 in O.P.No. 774/2007 and for affording the appellant an opportunity to contest the Original Petition.

An ex parte order came to be passed in a petition filed u/s 7(1)(f) of the Family Courts Act, 1984, filed by the first respondent herein. The order is passed against the appellant and the second respondent. The appellant was ex parte. Accordingly, the appellant filed application to set aside the ex parte order, accompanied by an application to condone the delay. The said applications were rejected. Hence, the appeal.

We heard the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the first respondent and the second respondent.

As far as the second respondent is concerned, the order has become final. Learned counsel for the appellant would submit that she could not appear as she was residing in a different address. According to her, she has filed an affidavit. The Family Court observed that there is no evidence in support of the case. Learned counsel for the appellant would submit that an opportunity may be given to establish her case.

After having heard the learned counsel for the parties, we feel that in the interests of justice, an opportunity should be afforded to the appellant. Accordingly, we allow the appeal and set aside the impugned orders. The application to condone the delay as also the application to set aside the ex parte order will stand allowed and the Original Petition will be restored to file, as against the appellant. The appellant and the first respondent will appear before the Family Court on 28.3.2012. The Family Court will proceed to dispose of the matter finally, on or before 28.9.2012. This order is conditional upon the appellant depositing a sum of Rs. 5,000/- (Rupees five thousand only) as cost, to be paid to the first respondent, within a period of two weeks and it will be open to the first respondent to withdraw the same. If the amount is not deposited, the appeal will stand dismissed.