LAWS(KER)-2013-1-381

P.M. ASSAN Vs. P.T. SHAMSHAD

Decided On January 04, 2013
P.M. Assan Appellant
V/S
P.T. Shamshad Respondents

JUDGEMENT

(1.) UNDER challenge in this appeal preferred by the appellant who is the husband of the respondent are the orders passed by the Family Court, Kozhikode dismissing an application filed by the appellant for setting aside an ex parte decree which was passed against him and refusing to condone the delay caused in the matter of filing the above application. Also under challenge is the ex parte judgment and decree in OP. 820/10 which was a petition for divorce under the provisions of Section 2(ii)(iv)(viii)(a)(d) and (f) of the Dissolution of Muslim Marriage Act. The ground raised by the appellant is that he could not appear before the Family Court as he was working abroad at the relevant time. He was set ex parte on the reason that as his residential premises were found locked service was effected on him by affixture on the front door of his house. According to the appellant, the appellant did not have actual or even constructive notice of the proceedings before the Family Court. The learned counsel for the appellant requested that an opportunity be given to the appellant to contest the proceedings. Even though the respondent, wife is duly served with notice personally, she has not chosen to enter appearance before this Court. Thus, the submissions of the learned counsel for the appellant are not resisted at the Bar. We are of the view that relief can be given to the appellant imposing reasonable terms. Accordingly, we allow this appeal setting aside the orders in I.A. Nos. 887/12 and 886/12. This means that we are setting aside the ex parte order passed in O.P.820/10. We remit OP. 820/10 back to the Family Court, Kozhikode for fresh decision. This order of remit will become effective only subject to the following conditions: -

(2.) Once the order of remit becomes effective by the appellant complying with the above two conditions, the learned Family Court will after completing the necessary formalities like counseling etc. will try and dispose of OP. 820/10 in accordance with law. Family Court will expedite matters and will pass the revised order in the OP within three months of receiving copy of this judgment.