Restoration applications and applications to condone delay should be decided on merits; dismissal for default is not justified if the applicant was prosecuting diligently.

Devan Ramachandran , J.

The appellant admittedly suffered an ex parte decree in OP No.217/2017 on the files of the learned Family Court, Kasaragod, filed by the respondent – her estranged husband; and she, thereupon, preferred RPIA No.65/2023, seeking restoration of the same, invoking the provisions of Order IX Rule 13 of the Code of Civil Procedure (CPC). This application was accompanied by a petition seeking condonation of delay in filing it, but since she was not present before the learned Court, on 25.05.2024 - when the matter was considered - it was dismissed for default, consequently, leading to the restoration application being rejected.

2. The appellant challenges the order of the learned Family Court, dated 25.05.2024, as also the ex parte decree.

3. Sri.T.Sethumadhavan, learned senior counsel, instructed by Smt.Mary Liya Sabu - appearing for the appellant, submitted that his client had filed the restoration application, cogently explaining why she was not able to appear before the learned Family Court at the time when OP No.217/2017 was considered; but that, without considering the same on its merits, it adopted the easy route of dismissing the application itself for default. He contended that this is unfortunate, particularly when his client was prosecuting the petition diligently, but could not be present on the day when the impugned order was issued on account of certain unavoidable and personal reasons. The learned senior counsel, therefore, prayed that this appeal be allowed and either the ex parte decree be set aside; or that the order dated 25.05.2024 in RPIA No.65/2023, as also on the application to condone delay, be vacated, so that the said application can then be considered on its merits.

4. The endorsements on the files of this case show that summons could not be served on the appellant through conventional methods and hence that it has been served through substituted means, including paper publication. However, there is no appearance for the respondent either personally or through counsel; and this has been the situation every time this case was earlier taken. We are, therefore, constrained to dispose of this appeal in his absence.

5. We find favour with the submissions of the learned senior counsel that, in normal circumstances, restoration applications, as also applications to condone delay in filing the same, are to be decided on its merits. Of course, in this case, we cannot find fault with the learned Family Court in having dismissed the application for default, when there was no appearance on behalf of the appellant - which in normal sense would also mean that even her counsel did not appear.

6. That being so, we have little doubt that the appellant is entitled to pursue her remedies against the ex parte decree; for which, certainly, RPIA No.65/2023 in OP No.217/2017 and also the application to condone the delay in its filing, ought to be considered on its merits.

7. In such perspective, without entering into the merits of any of the other rival contentions and leaving them all open, we allow this appeal and set aside the order of the learned Family Court, dated 25.05.2024; thus directing it to reconsider RPIA No.65/2023 and IA No.1/2023 in OP No.217/2017, after affording necessary opportunity to both sides, as expeditiously as is possible.

We reiteratingly clarify that we have not considered or evaluated the worth of the reasons stated by the petitioner for her having been set ex parte and that these are all left to be considered by the learned Family Court on its merits.