HILLURUDEEN Vs. LIJI BEEGAM

JUDGEMENT

(1.) C.M. Appln. No. 69 of 2016 is filed to condone delay of 1414 days in filing the appeal. In the affidavit filed in support of the above application, it is stated that appellant had preferred applications before the Family Court for setting aside the ex parte decree and also to condone delay of 1094 days. The Family Court dismissed the said application and therefore the appellant had preferred the present appeal against the original order with an application to condone delay.

(2.) It is submitted that the Original Petition was filed by the respondent herein seeking for return of gold ornaments and maintenance. The matter was entrusted to the appellant's brother for conducting the case as the Power of Attorney holder. It is stated that appellant's brother was unable to conduct the case as he was suffering from coronary infraction. Annexure A1 certificate is produced to indicate the same. Annexure A1 would show that he was admitted in a hospital on 11/9/2012 for doing the procedure Coronary Angioplasty and stent. It is stated that after the stent was inserted, he was advised follow up in the hospital every three months. Appellant further states that he was unable to appear before the Court since he was also suffering from continuing medical illness and he had to undergo three major heart surgeries. He had produced Annexure A2 certificate to prove the aforesaid fact. Annexure A2 is the certificate issued by the Kerala Institute of Medical Sciences indicating that the appellant was admitted to the Intensive Cardiac Care Unit on 21/1/2013. He was discharged on 23/1/2013 with cardiac problems. Other than the aforesaid certificate, no other material is seen produced.

(3.) True that the appellant and his Power of Attorney might have had illness and cardiac problems, but, that does not preclude them from arranging proper appearance before the Court in a pending proceedings. Appellant does not have a case that he was totally unaware of the proceedings. In the case on hand, appellant in fact challenges the judgment in OP No. 675/09 and also the orders passed in the application to condone delay. Application to condone delay was filed seeking to condone delay of 1094 days in filing the application to set aside the ex parte order. The reason stated is the same. We are not satisfied with the grounds urged in the affidavit filed in support of the above application to condone delay and the Family Court have also while disposing of IA No.2233/15 observed that there was no medical record to prove that appellant was suffering from ailments for quite a long time which prevented him from filing an application in time. Even before this Court, no documents are produced to show that he was bed ridden and was unable to make necessary arrangements for prosecuting the matter. Even according to the appellant, he had entrusted his brother through Power of Attorney to contest the matter. If his brother had any incapacity, it would have been possible for him to engage some other person to contest the matter as well. In so far as the appellant had been declared ex parte and a decree had been passed long back, there is no reason for this Court to interfere in the matter at this stage of the proceedings.