Y. Daniel, Thomas and Kunjumol vs Annamma

K.M. Joseph, J.—The petitioner calls in question Ext.P3. Petitioners are the respondents in O.P. No. 6/2010 on the file of the Family Court, Kottarakkara. The said Original Petition was filed by the respondent for return of gold ornaments and seeking monetary claims. The first petitioner is the husband of the respondent. According to the petitioners, on 29.6.2011, the court below passed an order setting them ex parte and posted the case for petitioner''s evidence. It is the case of the petitioners that the third petitioner was hospitalised and the other petitioners were with her and hence they could not appear. The learned counsel appearing before the court below submitted the reasons and prayed for some time, it is stated. But, the court rejected the request and passed an ex parte order and posted the case for evidence. Petitioners filed Ext.P2 affidavit and petition seeking to set aside the ex parte order. By Ext.P3 order, the said application was rejected. Ext.P3 order reads as follows : Petitioner absent. Represented. Respondent is ex parte. He filed a petition under Order 9 Rule 7 CPC as IA 2902/11 to set aside the ex parte order passed against him on 29.6.2011. The petition stands dismissed, being time barred. For petitioner''s evidence Last Chance.

Heard learned counsel for the petitioners. Though served, there is no appearance for the respondent. Learned counsel for the petitioners would submit that the order is unsustainable. The reason given that it is time barred, cannot be accepted, it is submitted. According to the learned counsel for the petitioners, there is no time limit. We may not agree with the said contention. A similar contention was taken before the learned Single Judge of this Court in Cleetus v. South Indian Bank 2007(3) KLT 868. The relevant portion rejecting the said contention reads as follows :

It is difficult to accept Mr. Krishnan Unni''s arguments in respect of Ext.P1 order. It is true that there is distinction between applications which are filed under O.IX R.13 and those filed under O.IX R.7, in that while the former seeks cancellation of decrees finally disposing of suits, the latter seeks cancellation of only orders setting the applicant ex parte, thus preventing him from participating in further proceedings in the suit. It is also true that unlike applications under O.IX R.13, there is no article in the Limitation Act providing any specific period of limitation for applications under O.IX R.7. But Mr. Krishnan Unni''s argument that since no time limit is specifically provided in the Limitation Act for filing applications under O.IX R.7, such applications can be filed at any time cannot be accepted. Such applications, in my opinion, will be governed by Art.137, the residuary article which prescribes a period of three years.

However, the period of limitation prescribed is three years. The petitioners have filed application for setting aside the ex parte order within three years. Therefore, the order passed is illegal as the application was filed within time. Petitioners have given reason. We feel that the interests of justice require that the application must be allowed. Accordingly, we allow Ext.P2 application. In such circumstances, we allow the Original Petition (Family Court) and set aside Ext.P3. The Family Court will proceed with the matter as per law.