YUNUS Vs. JASEERA

JUDGEMENT

(1.) The petitioners herein are the respondents in O.P.No.930/13 on the files of the Family court, Chavara, which is instituted by the respondent herein seeking recovery of the value of gold and patrimony. The suit was contested before the court below by the respondent through the written statement filed. The case was posted for evidence before the Family court, Chavara on 12.09.2013. Since both the petitioners and their counsels were not present, the suit was decreed ex -parte. Subsequently, the petitioners filed I.A.No.346/14 seeking to set aside the ex -parte decree, along with an application to condone the delay of 137 days in filing the said application, as I.A.No.347/14. But the Family court had dismissed those interim applications without considering the merits upon which the application seeking to set aside the decree was filed. I.A.No.346/14 was dismissed on the premise that the relief sought for in that application is to set aside the ex -parte passed on 20.09.2013, whereas actually the decree was passed on 12.09.2013. Stating the very same reason I.A.No.347/14, filed seeking condonation of delay, was also dismissed. It is aggrieved by the said orders, the above original petition is filed by invoking the jurisdiction vested on this Court under Article 227 of the Constitution of India.

(2.) Heard; counsel appearing on both sides.

(3.) Learned counsel for the petitioners contended that, the original petition happened to be decreed ex -parte only because the counsel appearing for them had failed to represent the case on 12.09.2015. It is stated that the second petitioner, who is the power of attorney holder of the first petitioner, could not be present before the court below on that date, because of the fact that he was suffering from heart decease and other aliments and was admitted at KIMS Hospital, Thiruvananthapuram. It is also mentioned that the fact of his hospitalisation could not be intimated to the counsel appearing for the petitioners. Further statements is that the counsel who was appearing for the petitioners was also not present, because her husband was seriously ill and hospitalised and subsequently he passed away. It is contended that the mentioning of the date of the ex -parte decree as 20.09.2013 instead of 12.09.2013 was only due to a mistake committed by the Advocate Clerk in noting the date of the order. It is argued that, the court below ought to have found that the mistake in the date of the decree mentioned in the petition is only due to an inadvertence and should have permitted the petitioners to correct the same.