Point of Law: 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 application filed with an affidavit of the counsel is sufficient.

JUDGMENT :

Anil K. Narendran, J.

The appellant filed O.P.(Div)No.218 of 2017 before the Family Court, Pathanamthitta, against the respondent herein–wife, under Section 10(1)(x) of the Indian Divorce Act, 1869, seeking a decree of divorce on the ground of cruelty. On 14.11.2018, the Family Court passed an ex parte decree of divorce in that original petition. The respondent-wife filed I.A.No.1 of 2021 to set aside that ex parte decree, which was renumbered as R.P.No.12 of 2021. That petition was supported by I.A.No.2 of 2021 filed for condonation of delay of 814 days. By the order dated 21.07.2022, the Family Court allowed I.A.No.2 of 2021, on payment of a cost of Rs.2,000/- to the District Legal Services Authority, within two weeks. The cost was paid and accordingly, I.A.No.2 of 2021 was allowed by the order dated 17.08.2022. Thereafter, by another order dated 17.08.2022 the Family Court allowed R.P.No.12 of 2021, on the ground that I.A.No.2 of 2021 is allowed. The appellant filed this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984, seeking an order to set aside the orders dated 21.07.2022 and 17.08.2022 in I.A.No.2 of 2021 and also the order dated 17.08.2022 in R.P.No.12 of 2021 in O.P.(Div)No.218 of 2017.

2. On 16.11.2022, when this appeal came up for admission, this Court issued notice to the respondent.

3. On 24.11.2022, in I.A.No.1 of 2022, this Court granted an order of stay of all further proceedings in O.P.(Div)No.218 of 2017 on the file of Family Court, Pathanamthitta, for a period of one month. The said interim order, which was extended from time to time, is still in force.

4. Heard the learned counsel for the appellant-husband. Despite service of notice, none appears for the respondent-wife.

5. O.P.(Div)No.218 of 2017 is one filed by the appellant-husband seeking a decree of divorce under Section 10(1)(x) of the Indian Divorce Act, against the respondent-wife, to dissolve the marriage solemnised between them on 06.09.1986. On 14.11.2018, when that original petition was listed before the Family Court, the respondent-wife and her counsel were absent. Therefore, she was set ex parte and an ex parte decree of divorce was also passed on 14.11.2018. Seeking an order to set aside that ex parte decree, she filed I.A.No.1 of 2021, invoking the provisions under Order IX Rule 13 of the Code of Civil Procedure, 1908, which was re-numbered as R.P.No.12 of 2021. The said application was supported by I.A.No.2 of 2021 filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 814 days. The restoration petition and also the application for condonation of delay were supported by the affidavits sworn to by the Advocate for the respondent-wife, wherein it is stated that the absence of the respondent and her counsel before the Family Court on 14.11.2018 was on account of an omission on the part of the Advocate Clerk in noting the date of posting. An application for setting aside the ex parte decree was prepared and entrusted to the then Advocate Clerk, for filing. The learned counsel was under the impression that notice has already been ordered in that application and that, the said application is listed along with the connected matter, i.e., O.P.No.1010 of 2013, for return of notice. The then Advocate Clerk left employment. For the above reasons and also on account of the restrictions imposed in connection with Covid-19 pandemic, the learned counsel could not make necessary enquiry. He came to know about the omission to file such an application in O.P.(Div)No.218 of 2017 only when the connected matter, i.e., O.P.No.1010 of 2013, was listed for evidence.

6. In Abdul Kareem v State of Kerala [2006 (2) KLT 408] this Court held that 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 application filed with an affidavit of the counsel is sufficient.

7. In