MUJEEB RAHIMAN Vs. SHIMCIA

JUDGEMENT

(1.) THE respondents filed M.C. No.1 of 2009 on the file of the Family Court, Palakkad against the petitioner claiming maintenance. The Family Court allowed the maintenance case as per ex-parte order dated 25.7.2009. The petitioner filed C.M.P. No.1366 of 2009 to set aside the ex-parte order. The Family Court allowed that application on condition of deposit of one-half of the maintenance arrears upto date within three weeks from the date of the order. The Family Court held that the application for setting aside the ex-parte order was filed within time and that there was nothing to show that the petitioner (respondent in the M.C.) absented before Court with any oblique motive.

(2.) THE petitioner did not make the deposit within three weeks, as ordered by the Court. However, he paid the amount to the respondents and the respondents received the sum on 23.11.2010. The petitioner filed C.M.P. No.182 of 2010 to set aside the ex-parte order dated 25.7.2009. He also filed C.M.P. No.181 of 2010 to condone delay of 218 days in filing C.M.P. No.182 of 2010. In C.M.P. No.182 of 2010, the respondents filed an objection stating that the first respondent received the sum of Rs.35,000.00 on 23.11.2010. It was also stated that if the Court thought it fit to allow the application, the main case may be disposed of expeditiously.

(3.) IN fact, it was not necessary for the petitioner to file an application to set aside the ex-parte order, as prayed for in C.M.P. No.182 of 2010, since the ex-parte order was set aside by the Court, as per the order dated 3.9.2010. The petitioner did not comply with the condition imposed in the order in C.M.P. No.1366 of 2009 within time. Later he paid the amount, but it was out of time. Therefore, it was sufficient for the petitioner to apply for extension of time, to comply with the condition. Instead, he filed an application to set aside the ex-parte order and also filed an application to condone delay of 218 days in filing the application. The delay in complying with the condition in the order dated 25.7.2009 was only sixty days. However, the Court below dismissed the application thinking that the number of days of delay stated in C.M.P. Nos.181 of 2010 and 182 of 2010 was correct. In fact, a mistake was committed by the petitioner and as a result of the mistake, the Court erroneously thought that there was a delay of 218 days in filing the application for setting aside the order.