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2023 Supreme(Online)(KER) 6515
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
REEBA JOSEPH – Appellant
Versus
BINIL ABRAHAM – Respondent
OP (FC) 315/2022
ARUN KRISHNA DHAN, ARJUN SREEDHAR, T.K. SANDEEP ALEX ABRAHAM, VEENA HARIKUMAR, DAISY IRENE DANIEL
Proper service of notice is imperative for fair trial rights; lack thereof can dissolve ex parte decrees.
Headnote:
Notice - Family Law - Article 227 - The court emphasized proper notice service requirements. The Family Court found no proper service of notice, leading to setting aside an ex parte decree, allowing the petition solely on terms of reasonable cost.
Fact of the Case:
The petitioner filed an Original Petition to challenge the Family Court's decision to set aside an ex parte decree due to improper notice service. The Family Court found no valid notice served on the respondents.
Issues: Whether the Family Court correctly ruled on the validity of notice service and if the delay in presenting the petition warranted the ex parte decree's setting aside.
Ratio Decidendi: The court reiterated the importance of proper notice service and the conditions under which an ex parte decree can be set aside, emphasizing equal opportunity for both parties to be heard in court proceedings.
Final Decision: The appeal was dismissed; no reason to interfere with the Family Court's order.
JUDGMENT
P.G. Ajithkumar, J.
This Original Petition under Article 227 of the Constitution of India is filed by respondent in I.A.Nos.1 and 2 of 2021 in O.P.No.926 of 2018 before the Family Court, Kottayam at Ettumanoor. As per Ext.P8 order (sic), the Family Court allowed the said interlocutory applications on payment of a cost of Rs.5,000/-. The petitioner seeks to set aside Ext.P8 order.
2. On 06.06.2022, notice on admission was directed to be served on the respondents. Further proceedings in O.P.No.926 of 2018 was directed to be kept in abeyance for a period of one month. The interim order was later extended.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
4. The Family Court holding that there was no due service of notice on the petitioner, set aside the exparte decree dated 16.11.2019 in O.P.No.926 of 2018. Paragraph No.6 of the impugned order reads,- “6. A perusal of records would go to show that the respondents have been set exparte. Admittedly there was no direct service. The notices were returned unclaimed. The returned notices would also show that it was sent to Kurichy address. A perusal of the original petition would also show that the respondents in the O.P are residing at Navy Mumbai. But the permanent address is shown as at Kurichy. This is inspite of the petitioner is knowing that the respondents are residing in Navy Mumbai in Maharashtra. There is no reason as to why the notices were not sent to the place where the respondents are available. So there is force in the contention by the applicants that they have not been served with notice. At the same time as far as delay is concerned, admittedly the petitioner came to know about exparte decree on 03.12.2020. These petitions are filed only on 15.03.2021. There is no proper explanation for the delay. The petitioner also came down to meet his counsel only on 16.01.2021. The counsel had received the certified copies of order before 16.01.2021. Inspite of all these, the petition is filed only on 15.03.2021. So it is evident that there is no proper explanation for the delay. At the same it is always desirable to have a final disposal of the case after hearing both sides. In that view of the matter this court is inclined to allow this petition. At the same time this court cannot be oblivious of the inconvenience caused to the respondent/petitioner in the O.P. Therefore the petitions can be allowed only on terms. Considering the facts and circumstances of the case a cost of Rs.5,000/- appears to be a reasonable cost.”
5. The exparte decree was passed on 16.11.2019.
I.A.Nos.1 and 2 of 2021 were filed on 15.03.2021. The delay was sought to be condoned on the ground that the respondents did not received any notice in O.P.No.926 of 2018 and knew about the case only on 03.12.2020. It may be noted that on account of the decision of the Apex Court inIn Re:Cognizance for Extension of Limitation [2021 (5) KHC 508], the delay from 15.03.2020 till 15.03.2021 on which date these applications were filed, is liable to be excluded while computing the period of delay.
6. The learned counsel appearing for the petitioner would submit that the finding of the Family Court that there was no service of notice on the respondents is incorrect, and therefore the impugned order is liable to be set aside. The learned counsel would point out that the petitioner has been residing at his address at Navi Mumbai given in O.P.No.926 of 2018 and notice sent from the court in that address returned unclaimed, and therefore it can only be said that there is valid service. Ext.P5 is a copy of the envelope of the notice sent in the Navi Mumbai address of the 1st respondent from the court. From the endorsement that the notice was unclaimed, it cannot be said that the respondents did get notice regarding the original petition. Hence, it is incorrect to say that the respondents, after getting information regarding the pendency, failed to appear before
