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2022 Supreme(Online)(KER) 20877
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
MUHAMMED SAJEER – Appellant
Versus
SUFAINA M.M. – Respondent
OP (FC)/523/2022
K.RAKESH, MUHAMMED SHAFI, T.RASINI
The court ruled that procedural defects must be addressed prior to considering applications on merits to prevent injustice.
Headnote:
Interlocutory - Family Law - Article 227 - Rule 32 Civil Rules of Practice 1971 - The court found that the Family Court erred in considering a single interlocutory application for setting aside judgements in multiple cases, violating procedural rules that preserve the right to justice.
Fact of the Case:
The petitioners challenged a Family Court's dismissal of their application to set aside an ex parte order granted in multiple cases concerning marriage dissolution and maintenance, claiming they were improperly joined in a single application.
Finding of the Court:
The court reviewed the Family Court's procedure and concluded it should have returned the application for being defective, thereby causing a miscarriage of justice by considering it on merits.
Issues: Whether the Family Court erred in allowing a single interlocutory petition to set aside multiple orders, and whether such a procedural flaw prejudiced the parties' rights.
Ratio Decidendi: The court highlighted the necessity of adhering to procedural rules which govern the filing of applications, emphasizing the importance of separate treatment for distinct cases to safeguard justice.
Final Decision: The Original Petition is allowed, setting aside the Family Court's order on condition of partial maintenance payment.
JUDGMENT
Ajithkumar, J.
The petitioners are the respondents in O.P.No.878 of
2017 and connected cases on the file of the Family Court, Kozhikode. As per the judgment/order dated 12.10.2021, O.P.No.878 of 2017 and connected cases, namely, O.P.Nos.879 & 963 of 2017 and M.C.No.288 of 2017 were allowed ex parte. The petitioners filed I.A.No.1 of 2021 seeking to set aside the said common judgment/order. The Family Court, Kozhikode dismissed I.A.No.1 of 2021 holding that there was no sufficient reason to set aside the ex parte judgment/order. The said order dated 23.03.2022 in I.A.No.1 of 2021 (Ext.P4) is under challenge in this Original Petition filed under Article 227 of the Constitution of India .
2. When the matter was filed, the Registry raised an objection that the impugned order was appealable, in our view, rightly. We have considered the matter on the judicial side and on finding that there occurred a palpable error in entertaining a common interlocutory application for setting aside judgment/order in four distinct cases, we, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , has directed the Registry to number the Original Petition.
3. On 02.09.2022, notice on admission was directed to be served on the respondent. An interim stay as prayed for was granted for a period of one month.
4. Today, we heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the respondent.
5. The learned counsel appearing for the petitioners would submit that the reasons stated for dismissing I.A.No.1 of 2021 are untenable and the said order is liable to be set aside. The learned counsel however concedes that it was quite incorrect and not allowed in law to file a single interlocutory application to set aside the judgment/order in four cases. 6. The learned counsel appearing for the respondent would submit that despite ordering payment of maintenance at the rate of Rs.10,000/- from May 2017 onwards, the 1st petitioner-husband has not hitherto paid any amount and without giving any heed to the order directing payment of monthly maintenance, the petitioners approached this Court. Their intention is to protract the matter and to deny the respondent-wife even the monthly maintenance, which is absolutely necessary for her sustenance.
7. As per the common judgment/order dated
12.10.2021, the Family Court, Kozhikode, allowed O.P.Nos.878, 879 and 963 of 2017 and also M.C.No.288 of 2017. O.P.No.878 of 2017 was filed by the respondent seeking a decree of dissolution of marriage between herself and the 1st petitioner. O.P.No.879 of 2017 was filed by the respondent seeking maintenance, which was allowed ordering payment of Rs.10,000/- per month towards monthly maintenance and Rs.3,60,000/- towards past maintenance. O.P.No.963 of 2017 was filed seeking a direction to return gold ornaments and the same was also allowed. M.C.No.288 of 2017 was filed by the respondent seeking monthly maintenance and the claim was allowed ordering the 1st petitioner to pay monthly maintenance at the rate of Rs.10,000/-. All the said judgments/orders were ex parte. It is the said common judgment/order which are sought to be set aside by filing I.A.No.1 of 2021.
8. Cause of action for filing interlocutory application to set aside each of the said judgment/order is distinct, and separate applications was necessary. The Family Court did not consider that aspect while receiving I.A.No.1 of 2021 on file and deciding the same on merits.
9. A learned single Judge of this Court in Paulochan v. Noble Enterprises [1987 (2) KLT SN 41 (C.No.58)]
held, “The Kerala Civil Rules of Practice is having the force of law in the matter of regulating procedure of the civil courts, having been made under legislative authority derived from S.122 CPC. R.32 of the said Rules makes it incumbent en the court to return defective plaints, petitions, memorandum of appeal or other proceeding for representation after curing d
