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2025 Supreme(Online)(KER) 150
HIGH COURT OF KERALA
Kauser Edappagath, J
CHANDRAN .S. – Appellant
Versus
VENNILA – Respondent
RPFC 303/2024
The court may grant an opportunity to contest an exparte order despite a lack of diligence, provided conditions are met, ensuring fairness in legal proceedings.
Headnote:(A) Criminal Procedure Code - Section 126(2) - Indian Limitation Act - Revision petition challenging the dismissal of an application to set aside an exparte order in a maintenance case - The Family Court granted maintenance of ₹4,000/- from the date of the petition - The petitioner was not diligent in prosecuting the case or the application - Opportunity granted to contest on merits upon deposit of ₹50,000/- towards maintenance. (Paras 1-4)
(B) Diligence in prosecution - The court emphasized the necessity for the petitioner to demonstrate diligence in pursuing legal remedies, noting the absence during hearings and the delay in filing applications. (Paras 2-4)
Facts of the case:
The petitioner, husband of the respondent, challenged the dismissal of his application to set aside an exparte order in a maintenance case where the Family Court had granted maintenance to the respondent. The petitioner remained absent during proceedings.
Findings of Court:
The court set aside the dismissal order on the condition that the petitioner deposits ₹50,000/- towards maintenance within one month.
Issues: The main issues were the diligence of the petitioner in prosecuting the maintenance case and the conditions under which the exparte order could be contested.
Ratio Decidendi: The court ruled that despite the petitioner's lack of diligence, an opportunity should be granted to contest the application on merits, emphasizing the importance of fairness in legal proceedings.
Result: Revision petition disposed of with conditions.
Annexure A4 order dismissing an application filed under Section 126 (2) of the Criminal Procedure Code read with Section 5 of the Indian Limitation Act is under challenge in this revision petition.
2. The petitioner is the husband of the respondent.
The respondent filed M. C. No.35 of 2020 before the Family Court, Kattappana claiming maintenance. The petitioner remained exparte in the maintenance case. The Family Court as per Annexure A2 order allowed the M. C. in part and granted a monthly maintenance @ ₹4,000/- to the respondent from the date of the petition that is from 17.02.2020. Thereafter, the petitioner filed Annexure A3 application to set aside the exparte order and to condone the delay. The said application was dismissed for default as per Annexure A4 order. It is challenging Annexure A4 order, this revision petition has been filed.
3. I have heard both sides.
4. Annexure A2 would show that it was passed as early as on 17.06.2022. However, Annexure A3 application to set aside the exparte order was filed only on 11.01.2024. When that application came up for hearing, the petitioner remained absent also. Thus, it is clear that the petitioner was not at all diligent in prosecuting either the maintenance case or the application filed by him to set aside the exparte order. However, I am of the view that an opportunity should be granted to the petitioner to contest Annexure A3 on merits. Hence, Annexure A4 stands set aside on condition that the petitioner shall deposit ₹50,000/- towards the maintenance before the Family Court, Kattappana within a period of one month from today. If the petitioner makes the deposit, Annexure A4 would stand set aside and the Family Court shall dispose of Annexure A3 in accordance with law after hearing both sides.
The revision petition is disposed of as above.
