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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, P.G. AJITHKUMAR, JJ.
ASWATHI R. PILLAI D/O RAJAN PILLAI – Appellant
Versus
ARAVIND K. UNNITHAN S/O KRISHNAN UNNITHAN – Respondent
Mat. Appeal No. 160 of 2023
Decided On : 22-03-2023
Family Courts Act, 1984 - Section 19(1) - Limitation Act, 1963 - Section 5 - Code of Civil Procedure, 1908 - Order IX, Rule 13, (1) - Constitution of India, 1950 - Article 141, 142 - Decree of divorce - Ground of cruelty - Condonation of delay - Seeking an order to set aside that ex-parte decree, appellant filed R.P. for condonation of delay of 654 days - All persons shall have a limitation period of 90 days.
Findings of the Court:
Appellant who was examined as PW-1 has deposed that she, who gave birth to a child, has gone to Bangalore in November, 2019 for competing her BDS course and she returned only in November, 2021 - In her absence, notice in O.P was received by her father - Application filed by appellant-wife to set aside ex parte decree in O.P. (HMA) - Reasoning of Family Court that, if petition filed to set aside ex parte decree in O.P. (HMA) is allowed, after a long period of delay, without sufficient cause, it will cause prejudice to respondent-husband, is perverse and patently illegal, which warrants interference in this appeal filed under Section 19(1) of Family Courts Act, 1984 - This appeal is allowed by setting aside orders.
Result: Appeal allowed.
JUDGMENT :
ANIL K. NARENDRAN, J.
1. The appellant is the respondent-wife in O.P. (HMA) No. 1087 of 2019 on the file of the Family Court, Pathanamthitta, which was one filed by the respondent herein-husband, seeking a decree of divorce on the ground of cruelty. In that original petition, the appellant was set ex-parte and an ex-parte decree was also passed on 07.02.2020. Seeking an order to set aside that ex-parte decree, the appellant filed R.P. No. 8 of 2021 (I.A. No. 2 of 2021) on 23.12.2021, which was accompanied by I.A. No. 1 of 2021 for condonation of delay of 654 days. The respondent entered appearance and filed counter, opposing the reliefs sought for in those petitions. On the side of the appellant, PWs. 1 to 3 were examined and Ext.A1 was marked. On the side of the respondent, RW-1 was examined and Exts.B1 and B2 were marked.
2. After considering the rival contentions, the Family Court by the order dated 19.01.2023 dismissed I.A. No. 1 of 2021 on the ground that the appellant has willfully abstained from contesting the original petition for dissolution of marriage for a long period of 2 years. As an afterthought, the appellant filed the petition to set aside the ex-parte decree. The appellant’s father accepted notice and intimated the same to her. Admittedly, the appellant was having knowledge about the proceedings. Even then she has not taken any steps to contest the matter. Only when the appellant got information about the marriage of the respondent-husband, she filed the petition to set aside the ex-parte decree only to harass the respondent. If the petition is allowed, after a long period of delay, without sufficient cause, it will cause prejudice to the respondent. In view of the dismissal of I.A. No. 1 of 2021, the application for condonation of delay of 654 days, the Family Court by the order dated 19.01.2023 dismissed R.P. No. 8 of 2021 (I.A. No. 2 of 2021), the application to set aside the ex-parte decree in O.P. (HMA) No. 1087 of 2019. Feeling aggrieved, the appellant-wife is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984.
3. On 13.03.2023, when this appeal came up for admission, the respondent-husband entered appearance through counsel and sought time to file vakalat.
4. Heard the learned counsel for the appellant-wife and the learned counsel for the respondent-husband.
5. The learned counsel for the appellant-wife, relying on the orders of the Apex Court in Suo Motu W.P. (C) No. 3 of 2020, would contend that, when the actual delay in filing the application to set aside the ex-parte decree in O.P. (HMA) No. 1087 of 2019 is only 5 days, the Family Court committed a grave error in dismissing I.A. No. 1 of 2021, the application for condonation of delay filed under Section 5 of the Limitation Act.
6. Per contra, the learned counsel for the respondent-husband would contend that the finding of the Family Court that, if the petition to set aside the ex-parte decree is allowed, after a long period of delay, without sufficient cause, it will cause prejudice to the respondent, warrants no interference in this appeal filed under Section 19(1) of the Family Court. The appellant-wife, who was having knowledge about the proceedings before the Family Court, has not taken any steps to contest the matter.
7. Order IX, Rule 13 of the Code of Civil Procedure, 1908 provides for setting aside ex-parte decree against defendant. As per sub-rule (1) of Rule 13, in any case in which a decree is passed ex-parte against a defendant, he may apply to the court which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the su
Under Order IX, Rule 13 of Code of Civil Procedure, court has to find out whether erring party has made out sufficient cause for setting aside ex-parte decree.
Any application filed under Order XLI, Rule 3A of the Code of Civil Procedure for condonation of delay, when the delay has occurred only because there was misplacing of files by the counsel, the appl....
In considering applications for condonation of delay, courts must assess whether sufficient cause has been demonstrated based on events leading to the delay.
The court emphasized a liberal approach to condonation of delay in appeals, especially when the delay is short and sufficient cause is shown.
Inordinate 168-day delay in matrimonial appeal not condoned; misconception of limitation period and bicycle injury deemed insufficient cause due to negligence, lack of diligence and bona fides.
Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a leg....
The court emphasized that sufficient cause for condoning delay should be evaluated liberally in matrimonial cases, and prior suits do not preclude granting relief due to evolving questions.
Inordinate 211-day delay in divorce appeal not condoned; illness, financial hardship and distant work held insufficient cause lacking diligence and bona fides, despite knowledge of judgment.
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