Veloo Bhargavi vs Varkey Varughese

Kunhi Raman, C.J.—The appeal is presented from the order of the court below rejecting an application made by the Appellant for setting aside an ex parte order of dismissal in her suit. The court below has stated in the order that it is not satisfied that the application is bona fide. But one of the reasons given for the application is that on or about the date to which the suit was posted for hearing, the advocate for the Appellant was under arrest under the Preventive Detention Act and that consequently no steps could be taken for summoning witnesses for proceeding with the suit. Tire suit seems to be very old. It was started as an application for leave to sue in forma pauperis in the year 1121. It was registered as O.S. No. 226 of 1124 after the leave was granted to the Plaintiff to sue as a pauper. It is also represented on behalf of the Respondent that the suit was vexatious. The allegations in the plaint are to the effect that the Defendant had promised to marry the Plaintiff and had committed a breach of that, promise. It is stated that the Defendant is a married man with a number of children. He is a Christian. The Plaintiff is a Hindu. In the circumstances, there cannot be a suit for breach of promise of marriage. If such a promise was made by the Defendant it was opposed to public policy. The averments in the plaint were read out to us. They refer not merely to a promise to marry, but also to the illicit intimacy between the Plaintiff and the Defendant and the consequent birth of an illegitimate child. It is not possible to say from the averments in the plaint that it is based purely upon a breach of promise of marriage. Damages are claimed on all the allegations contained in the plaint. In view of the fact that the Plaintiff was completely disabled as a result of the arrest of her advocate under the Preventive Detention Act before the date to which the suit stood posted in the court below, we do not want to deprive the Plaintiff or her right to put her case forward if there is any bona fides in the action. In the circumstances, the proper order to make will be to direct that the Plaintiff-Appellant should pay the Respondent the costs ordered by the court below as also Rs. 25/- which we fix as the costs of this civil miscellaneous appeal as a condition precedent to relief being granted to her. The Plaintiff Appellant shall deposit in the court below within four weeks from this date Rs. 30/- being the costs which we direct the pontiff Appellant to pay the Respondent. In default of such deposit, this appeal shall stand dismissed with costs. If such deposit is made the order of dismissal for default mad the court below shall be set aside and the Plaintiff shall be permitted to proceed with he suit.

Return the records without delay to the court below.