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2019 DIGILAW 46 (KER)

Suresh v. Suja

2019-01-15

C.K.ABDUL REHIM, T.V.ANILKUMAR

body2019
JUDGMENT : C.K. Abdul Rehim, J. 1. Respondents in O.P. No. 1328/2013 on the files of the Family Court, Chavara are the appellants herein, challenging judgment and decree. The 1st respondent herein is the wife and the 2nd respondent is the daughter of the 1st appellant herein. The 2nd appellant is the mother of the 1st appellant. 2. The original petition was instituted by the respondents herein seeking for declaration of absolute title of the 1st respondent in the petition schedule property as well as for return of 9 sovereigns of gold ornaments or its value to the tune of Rs. 2,01,600/- along with an amount of Rs. 35,000/- towards value of the movable articles, with 6% interest. The appellants remained ex-parte in the proceedings. The 1st respondent filed proof affidavit and marked Exts. A1 and A2 documents. The court below after appreciating the evidence adduced through the proof affidavit and on considering the documents marked, decreed the original petition in part. The claim of the respondents to declare exclusive title of the 1st respondent on the petition schedule property was declined on finding that the recitals in the document would indicate that the consideration for purchase of the said property to third party was passed both from the 1st appellant and the 1st respondent. The court below found that the respondents herein could not able to prove in any manner that the entire sale consideration was paid by the 1st respondent alone. The remaining claim in the original petition for recovery of 9 sovereigns of gold ornaments or its market value at Rs.2,01,600/- and recovery of a sum of Rs.35,000/- towards value of the household articles along with interest, was allowed. 3. It is contended on behalf of the appellants that the court below had allowed the original petition in part without properly appreciating the materials and evidence available on record. Learned counsel for the appellants also contended that, there is no proper discussions in the impugned judgment with respect to the merits of the claims made by the respondents. 4. Heard counsel on either side. 5. We are not inclined to accept the contentions raised by the appellants, because the impugned judgment contains sufficient discussions on the merits of the case. It is after consideration of the evidence available through the proof affidavit of the 1st respondent and on consideration of Exts. 4. Heard counsel on either side. 5. We are not inclined to accept the contentions raised by the appellants, because the impugned judgment contains sufficient discussions on the merits of the case. It is after consideration of the evidence available through the proof affidavit of the 1st respondent and on consideration of Exts. A1 and A2 documents, that the court below had declined the claim for declaration of title over the petition schedule property. In the same manner, the court below had found that the claim made by the respondents with respect to recovery of the gold and money stands proved through the uncontroverted evidence adduced by the respondents. Contention that there was no proper application of mind by the learned Judge of the Family Court, cannot be accepted. The learned counsel for the appellants contended that the appellants did not get any opportunity to contest the case because they were declared ex-parte. But it is pertinent to note that the appellants have not approached the Family Court seeking to set aside the ex-parte on the basis of any claim that they were prevented by virtue of any genuine and cogent reasons from contesting the case before the Family Court. Having not attempted any such procedure before the Family Court, we cannot accept the relief sought for to remit the case for permitting the appellants to contest the matter. 6. Learned counsel for the appellants have pointed out a decision of this court in Meghna Gopal v. Praveen Chandran [ 2018 (4) KHC 875 (DB)] in which one among us is a party (C.K. Abdul Rehim, J.). While considering the scope of filing of an appeal against an ex-parte decree, this court observed that, in view of Section 96(1) of C.P.C. r/w Section 19(1) of the Family Courts Act, there exists a right of appeal which can be exercised even to challenge an ex-parte decree passed by the Family Court, eventhough the appellant has not exercised his remedy under Order IX Rule 13 of the Code of Civil Procedure. It is pertinent to note that the question in the present case is not with respect to maintainability of the appeal. But the question is regarding the merit of the appeal. It is pertinent to note that the question in the present case is not with respect to maintainability of the appeal. But the question is regarding the merit of the appeal. Since the appellants were ex-parte, the only question to be considered is as to whether the learned Judge of the Family Court had properly appreciated the materials and evidence available on record and as to whether he had applied his mind in allowing the claim. In the case at hand, it is evident that, despite the fact that the appellants were ex-parte, the Family Court had declined one of the major claims contained in the original petition. That itself is an indication with respect to the proper application of mind by the learned Judge with respect to the merits of the issues involved. 7. In the above mentioned circumstances, we do not find any merit in the appeal. Consequently the appeal fails and the same is hereby dismissed.