Kerala High Court
Jameela Pallithodika vs Meharunneesa on 27 February, 2020
Author: K.Harilal
Bench: K.Harilal, C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941
Mat.Appeal.No.133 OF 2020
AGAINST THE ORDER IN I.A.NO.1388/2017 IN OP 502/2014 DATED 12-12-
2019 OF FAMILY COURT, MALAPPURAM
APPELLANT/RESPONDENT/PETITIONER:
JAMEELA PALLITHODIKA, AGED 53 YEARS
W/O. ALAVIKUTTY, KANDANKULAVAN HOUSE,
SRAMBIKKALLU, P.O.PULLANGODE,
NILAMBUR TALUK, MALAPPURAM DISTRCT
BY ADVS.
SRI.K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENT/PETITIONER/PETITIONER/RESPONDENT:
MEHARUNNEESA, AGED 27 YEARS
W/O. SHAMEER.E.,
NOW RESIDING AT INTHALI HOUSE,
THIRUVAZHAMKUNNU P.O., VIA,
ALANELLOOR, AMBALAPPARA ROAD,
PALAKKAD-678 601
R1 BY ADV. SRI.R.RANJITH (MANJERI)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.133 OF 2020 ..2..
JUDGMENT
K.HARILAL,J.
The appellant herein is the paternal grandmother of the minor child and this appeal has been filed, challenging the order passed by the Family Court, Malappuram in I.A.No.1388/2017 in O.P.No.502/2014.
2. The respondent herein filed the aforesaid interlocutory application for cancelling the direction in O.P.No.502/2014 to send the child to the residence of the appellant on every Friday. According to the respondent, O.P.No.502/2014 was disposed of as per a joint statement on 22.03.2016 and as per the said joint statement, the minor named Fathima Shahna was kept in the custody of the respondent. It was agreed that the Mat.Appeal.No.133 OF 2020 ..3.. minor child will go to the residence of the appellant herein on every Friday at 5.00 p.m. and will come back to the residence of the respondent at 5.00 p.m on every Sunday. The respondent wanted to alter the said conditions on the ground that now, the appellant herein is not interested to have the custody of the child and she has not availed of the opportunity to get the custody of the child in every week.
3. The appellant herein entered appearance through counsel. Thereafter, the counsel submitted that he has no instructions from the appellant herein. In the said context, the Family Court passed the impugned order as prayed for by the respondent herein. This order is under challenge in the mat. Appeal.
Mat.Appeal.No.133 OF 2020 ..4..
4. Heard the learned counsel for the appellant and the learned counsel for the respondent.
5. The sum and substance of the argument advanced by the learned counsel for the appellant is that the counsel, who represented the appellant, submitted no instructions without informing the appellant and the appellant has moved against the counsel, alleging professional misconduct. According to the learned counsel, the appellant was actively contesting the aforesaid interlocutory application and she has strong objection against the deletion of the conditions in the joint statement. Due to the laches from the part of the counsel, she was deprived of his right to contest the interlocutory application on merits. The Mat.Appeal.No.133 OF 2020 ..5.. learned counsel prayed for granting an opportunity to contest the interlocutory application on merits.
6. Per contra, the learned counsel for the respondent advanced arguments to justify the findings in the impugned order. According to him, the appellant was not diligent in prosecuting the interlocutory application and hence the counsel submitted no instructions.
7. Going by the impugned order, we find that the Family Court heard the appellant and passed the impugned order, when the counsel appearing for the appellant herein submitted that he has no instructions from the appellant. There is no material to arrive at a finding that the counsel submitted 'no instruction', after making any Mat.Appeal.No.133 OF 2020 ..6.. attempt to contact the appellant to get instruction from him. In view of the fact that the impugned order was passed without hearing the appellant herein, we find that an opportunity can be given to the appellant to contest the interlocutory application on merits.
8. Adjudication of a lis on merits is always more desirable than dismissal on technicality and when substantial justice and technical considerations are pitted against each other, substantial justice deserves to be preferred, rather than technical consideration.
9. In the above view, the impugned order under challenge is set aside and I.A.No.1388/2017 is remitted to the Family Court, Malappuram for fresh consideration Mat.Appeal.No.133 OF 2020 ..7.. and disposal in accordance with law, after affording an opportunity of being heard to both parties. The parties shall appear before the Family Court, Malappuram on 16.03.2020 at 11 'o' clock.
This matrimonial appeal is disposed of accordingly.
Sd/-
K.HARILAL JUDGE Sd/-
C.S.DIAS
SB/28/02/2020 JUDGE
// true copy //
P.A. To Judge