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2024 DIGILAW 976 (KER)

Vipin Vijayan v. Vimitha Velayudhan

2024-08-02

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

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JUDGMENT : DEVAN RAMACHANDRAN, J. The bone of contention – in a manner of speaking - in this case is whether a Family Court can declare the litigant before it ex parte, if he/she refuses to appear before it in response to a notice issued by it under the provisions of Rule 4A of the Family Court (Kerala) Rules, 1989 (‘Rules’ for short), which authorises it to refer the parties to mediation. 2. As per Rule 4A(2) of the Rules, every Family Court is enjoined, before issuing summons to the respondents, to scrutinize the petition/application; and then, if it is of the opinion that there is scope for settlement, it may issue notice in Form 8 – but without annexing to it the Original Petition/Application to both sides to appear in person on a date to be fixed in that regard, to consider whether they can be referred for mediation. 3. The genesis of the controversy in this case is that the appellant herein did not appear consequent to the notice issued to him under the afore provision; and apparently, solely for that reason, he was set ex parte by the learned Family Court, subsequently leading the Original Petition to be allowed. 4. The petitioner assails this as being impermissible, singularly pleading that, even assuming that there was any deliberate failure on his part to appear, the declaration of him set ex parte was illegal. 5. Even though the appellant challenges the judgment and decree of the learned Family Court, Kasaragod, in O.P.No.337/2023, the thrust of his assertions are, in fact, against an earlier order (shown as a judgment) issued by it on 13.12.2023, setting him exparte. 6. The learned counsel for the petitioner – Sri.T.Madhu, took us through the chronology of events leading to the afore orders, to argue that O.P.No.337/2023 was filed by the respondent herein, seeking maintenance; and that the parties were asked by the learned Court to appear before it in person, so as to enable them to be referred to mediation on 13.12.2023. He conceded that his client did not appear on that day - but explaining that this was solely because he did not receive the notice, since he was abroad and the same having been published in a local newspaper - and that the Court, thereupon, declared him exparte, proceeding to the trial of the case, listing it on 18.12.2023. He conceded that his client did not appear on that day - but explaining that this was solely because he did not receive the notice, since he was abroad and the same having been published in a local newspaper - and that the Court, thereupon, declared him exparte, proceeding to the trial of the case, listing it on 18.12.2023. He showed us that, immediately the day thereafter, namely on 19.12.2023, the learned Trial Court issued judgment, allowing the Original Petition and asking his client to pay certain amounts as past maintenance. He contented that this procedure is contrary to the statutory scheme, since, even if his client had remained absent deliberately – without admitting it - he ought to have been issued further notice as per Rule 4A(5) of the Rules, before he could have been set exparte. He thus prayed that the order (shown as judgment) of the learned Family Court dated 13.12.2023, be set aside; and consequently, that the judgment and decree in O.P.No.337/2023, dated 19.12.2023, be also quashed. 7. Sri.P.V.Anoop – learned counsel for the respondent, however, responded, arguing that the true facts are not as stated by the petitioner because, after notice to him in Form 8 was published in a newspaper, he entered appearance through a counsel; but still refused to appear for mediation online – though so ordered by the learned Family Court. He added that the learned Court, therefore, could have done no more than to have set the petitioner exparte; but argued that this was done not through the order dated 13.12.2023, but only on 19.12.2023 - when the final judgment was delivered. He predicated that, therefore, the challenge to the order (shown as judgment) of the learned Family Court, dated 13.12.2023, is untenable; and hence that subsequent judgment and decree are irreproachable. 8. We are afraid that we cannot find favour with the afore submissions of Sri.P.V.Anoop because, as we have already indicated above, the learned Family Court, on 13.12.2023, issued an order - styled as a judgment - recording that the petitioner herein did not appear for mediation and hence that he is set exparte. It, thereupon, listed the Original Petition for evidence on 18.12.2023; and then issued the impugned judgment and decree on 19.12.2023. It, thereupon, listed the Original Petition for evidence on 18.12.2023; and then issued the impugned judgment and decree on 19.12.2023. The statement in paragraph 3 of the said judgment, that the petitioner was set ex parte, cannot be construed to mean that it was done on that date; but luculently, reflects the proceedings of its on 13.12.2023. 9. Indubitably, therefore, the afore argument of Sri.P.V.Anoop, that the petitioner was set exparte only on 19.12.2023, can never appeal to us because, it would have been impossible for the learned Trial Court to have delivered judgment on the same day, after having done so. 10. Obviously and being rendered without doubt, the learned Family Court had set the petitioner exparte on 13.12.2023, even without having issued him further notice under Form-I, as required under sub Rule 5 of Rule 4A of the “Rules”; and then proceeded with the trial, to issue the judgment and decree on 19.12.2023. 11. Two questions axiomatically arise: (a) could the learned Family Court have set the petitioner ex parte solely because - assuming so for argument - that he had deliberately refused to attend the mediation; and (b) if not, what was the course open before the said Court. 12. It is without requirement for expatiation that, in normal matrix, mediation is essentially consensual in nature and that merely because a person refuses to attend it, he/she cannot be set ex parte. This is more so, because there is little compulsion attached to an opportunity of mediation, especially when such goes solely by the volition of the parties to the litigation. 13. However, going by the scheme and purpose of Rule 4(A)(2) of the “Rules”, one can even read in an element of compulsion for the parties to appear for mediation because, it is only after the Court enters an opinion that there is scope for settlement, that the parties are so referred. It is hence that a notice in Form 8 is issued to the respondents; and in usual course, the parties are expected to appear before the Court, to await its decision as to whether they should be referred to mediation. Such a notice cannot be allowed to be disregarded by a party to the litigation because there is a salutory and compelling reason why the Statute provides for mediation at the very first instance and this can never be permitted to be violated. Such a notice cannot be allowed to be disregarded by a party to the litigation because there is a salutory and compelling reason why the Statute provides for mediation at the very first instance and this can never be permitted to be violated. Therefore, in cases where litigants do not, or cannot show, proper cause in not responding to such notices, the courts surely are empowered to take necessary action as permitted in law. 14. In this case, the petitioner did not appear before the Trial Court pursuant to the notice under Rule 4A(2), and going strictly by the impugned order, he was then set ex parte, but without citing any other reason or detail. This surely could not have been done by the learned Court, without proceeding with further processes under the Act and Rules, as we will presently detail. 15. We are persuaded to the afore opinion adscititiously because, when the parties are called to appear for a potential reference to mediation, through the mechanism under the Family Courts Act, the copy of the Original Petition is not served on the respondent on account of the inhibition under Rule 4A(2) of the “Rules”; and hence, solely because a person refuses to attend it, he/she cannot be set exparte. 16. That so declared, we move to the second limb, as to what the Court should have done in such circumstances. 17. As is evident from Rule 4 A(5) of the “Rules”, if the parties are not able to settle the disputes after counselling or mediation, the case ought to be posted before the Court, along with such a record. It then is enjoined to furnish a copy of the Petition or Application - as the case may be - to the respondent and proceed with the case as per the established procedure. This provision also provides that the Court may dispense with the issuance of summons to those who have already entered appearance pursuant to the notice under Form 8, as per the aforementioned Rule 4A(2). 18. We must, at this time, record that, though it is not so stated in the impugned order, we have certain additional information, which we have obtained through a report furnished to us by the learned Family Court, pursuant to our interim order dated 20.05.2024. 19. 18. We must, at this time, record that, though it is not so stated in the impugned order, we have certain additional information, which we have obtained through a report furnished to us by the learned Family Court, pursuant to our interim order dated 20.05.2024. 19. The learned Court informs us that, after the summons to the petitioner herein - in Form 8 under the provisions of Rule 4A(2) of the Rules - was published in a newspaper, a counsel appeared on his behalf, filing a vakalath on 14.9.2023. It is also reported that, through the subsequent order on 2.11.2023, the parties were referred to counselling; and further that the Counsellor thereafter reported that “the petitioner was present and the respondent was absent” (sic). The learned Court has added that the matter was consequently listed to 15.11.2023; thereafter to 29.11.2023 and finally to 13.12.2023, but that since the petitioner herein did not appear on any of these days, he was set ex parte. The report concludes saying that, for such reason, the second notice to the petitioner herein, as per Rule 4A(5) of the “Rules”, was dispensed with. 20. Though the afore facts in any other situation may have justified the actions of the learned Trial Court, the fact remains that the impugned order dated 13.12.2023, do not contain any of the afore details; and obviously, therefore, the respondent could not have challenged it, bearing in mind such. The said order merely records that the respondent (petitioner herein) was absent,and hence that he is set ex parte, since he did not appear for mediation. 21. The pleadings on record, however, are to the effect that the petitioner was abroad and did not receive the notice under Rule 4A(2) and that service on him was completed only through publication; but being silent as to whether he had engaged a counsel thereafter, who filed vakalath. 22. Pertinently, as we have said above, the impugned orders do not reflect on this at all; but we have received the afore recorded information only through the report obtained from the learned Family Court, pending this appeal. 22. Pertinently, as we have said above, the impugned orders do not reflect on this at all; but we have received the afore recorded information only through the report obtained from the learned Family Court, pending this appeal. In conspectus, we are of the firm opinion that the impugned order/judgment cannot be allowed to remain; and that the petitioner ought to be given an opportunity by the learned Family Court to defend the Original Petition, after serving summons to him under Rule 4A(5), along with the copy of the petition, on the date we propose to order the matter to be listed before it. Needless to say, the learned Family Court will, thereupon, dispose of the Original Petition as per law, after affording necessary opportunity to both sides; and, in order to obtain an expeditious compliance of afore directions, we direct the parties to mark appearance before it at 11 a.m. on 25.9.2024. It goes without saying that, in view of our observations and directions above, the impugned judgment and decree dated 19.12.2023 also will stand quashed. We, however, clarify that the learned Trial Court will be at liberty and competence to decide if any interim maintenance is required to be ordered in favour of the respondent herein; and if it is so sought, the same shall be considered as per law, without any avoidable delay. This Mat Appeal is thus disposed of.