MANKUZHI VALAPPIL MOHAMMED RAFI Vs. KARINMBANAKKAL SUBAIDA

JUDGEMENT

(1.) This revision is preferred against the order passed in CMP Nos. 841/08 and 842/08 in MC 496/06 of the Family Court, Malappuram. The maintenance case was filed by the wife and the daughter for maintenance and an ex parte order of maintenance was passed by directing the maintenance at the rate of Rs.2,000/- to the wife and Rs.1,500/- to the child. With a delay of 17 months, petitions were filed to condone and set aside the ex parte order. The Family Court did not find in favour of the petitioner therein and dismissed those applications.

(2.) Heard the counsel for both the sides. Learned counsel for the revision petitioner would contend before me that the revision petitioner is only an employee in a hotel at Madras and he did not have the real opportunity to contest the case. On the other hand the counsel for the respondent would contend the present petition to set aside the ex parte order is passed only after he was arrested in the execution proceedings that too after almost an year. Now the guiding principles in condoning the delay is given in the decision reported in Collector, Land Acquisition v. Mr. Katiji Others, 1987 KHC 911 : AIR 1987 SC 1353 : 1987 (2) SCC 107 : 1987 (62) Comp Cas 370 : 1987 (66) STC 228 : 1987 (167) ITR 471. It is true that it was a judgment given in a civil case but what should be the approach of the Court is very clearly laid down therein.

(3.) The Hon'ble Supreme Court held that refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Again it was cautioned that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. A litigant does not stand to benefit by resorting to delay. The Apex Court also observed that it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. So bearing in mind these broad principles I feel that an opportunity can be given to the husband to put forth his contentions so that the matter can be disposed of on merits after hearing both the sides. But at the same time the husband has to continue to pay at the rate of Rs.2,200/- as ordered by this Court as an interim measure till a final decision is taken in the matter.