Abdul Vahab v. Shajida

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 653 of 2010(R) -----------------------OS.112/2003 of FAMILY COURT,KOLLAM .................... PETITIONER: --------------- ABDUL VAHAB, S/O. MUHAMMED KUNJU, THARIK MANZIL, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT: --------------- SMT.SHAJIDA, SAMAD MANZIL, ADINADU THEKKE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.T.MADHU FOR R1 SRI.B.K.RAJAGOPAL FOR R1 SRI.PAULY MATHEW MURICKEN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX ## PETITIONERS EXHIBITS: EXT. P1 : TRUE COPY OF THE PLAINT O.S. 112/2003 OF THE FAMILYL COURT, KOLLAM. EXT.P2 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. 112/2003 BEFORE THE FAMILY COURT, KOLLAM. EXT.P3 : TRUE COPY OF THE I.A. FILED BY THE RESPONDENT IN O.S. NO. 112/2003 FOR ATTACHING THE PROPERTY OF THE PETITIONER. EXT.P4. : TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER FOR LIFTING THE ATTACHMENT ALONG WITH THE COPY OF THE F.D. RECEIPT. EXT.P5 : TRUE COPY OF THE ORDER DATED 23.10.2009 IN I.A. NO. 1184/09 IN O.S. NO. 112/03 OF THE FAMILY COURT, KOLLAM. EXT.P6 : TRUE COPY OF THE ORDER DATED 23.10.2009 IN I.A. NO. 1754/09 & I.A. 1992/09 IN O.S. NO. 112/03 OF THE FAMILY COURT, KOLLAM. RESPONDENT'S EXHIBITS : NIL ## **K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 653 of 2010 R** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 22[nd] day of February , 2010.** ## **JUDGMENT** ## **Joseph J.,** The respondent seeks recovery of value of 40 soverigns of gold ornaments. The petitioner resisted the suit by filing Ext.P2 written statement. In Ext.P6 order, the petitioner was directed to produce additional security of Rs.2,40,000/-. Direction is sought for lifting the attachment over the plaint schedule properties offered by the petitioner. 2. Briefly the case of the petitioner is as follows: The petitioner is defendant in O.S. 112 of 2003 before the Family court, Kollam. The respondent filed the claim for recovery of 40 soverigns of gold ornaments amounting to Rs.60,000/- (it is submitted) and an 2 ## **W.P. (C) No. 653 of 2010** additional monthly maintenance at the rate of Rs.2,000/- from 15.3.2000 with 12% interest. The petitioner filed Ext.P2 written statement resisting the suit. Thereafter the respondent filed Ext.P3 Application for attaching immovable properties, which was allowed. Thereafter the petitioner filed an application for lifting the attachment and the petitioner produced Fixed Deposit receipt for Rs.3,23,701/-. While so, the plaintiff/ respondent filed an application to amend the application to incorporate the value of the gold ornaments at the market rate. The petitioner objected. The Family Court allowed the amendment as per Ext.P5 order. Thereafter, the petitioner filed I.A. No. 1754 of 2009 for lifting the attachment. He also filed I.A. No. 1992 of 2009 for accepting the Fixed Deposit receipt as security. By Ext.P6 common order, the applications were dismissed and the petitioner was asked to furnish security for Rs.2,40,000/- more for lifting the attachment. The petitioner challenges Ext.P5 and Ext.P6 orders. 3. We heard the learned counsel for the petitioner and the learned counsel for the respondent. 3 ## **W.P. (C) No. 653 of 2010** 4. A Counter affidavit was also filed. The learned counsel for the petitioner would submit that the petitioner is prepared to furnish bond for the balance amount. It is submitted that Ext.P5 is in excess of jurisdiction. Learned counsel for the respondent, on the other hand, point out that the prayer in the Writ petition is not maintainable in law. In this regard, he would rely upon the judgment of the Apex Court in **Radhe Shyam and another v. Chhabi Nath and others** (2009 (5) Supreme court Cases 616), in which it is held: “Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.” 5. Learned counsel for the petitioner would, on the other hand 4 ## **W.P. (C) No. 653 of 2010** rely upon the judgment of the Apex Court in **Shail v. Manoj Kumar** **and others** 2004 (4) Supreme Court Cases 785, which reads as follows: “In Surya Dev Rai v. Ram Chander Rai this Court has held that in exercise of power of superintendence conferred under Article 227 of the Constitution of India on the High Court, the High Court does have power to make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would proceed hence and the High Court has the jurisdiction also to pass itself such a decision or direction as the inferior court or tribunal should have made. The jurisdiction under Article 227 of the Constitution is to be exercised sparingly and with care and caution, but is certainly one vesting in the High Court and meant to be exercised in appropriate cases. If convinced of the genuineness of the averments made by the petitioner and if convinced that a deserted woman, repeatedly knocking at its doors, is on the verge of destitution the High Court itself has jurisdiction to direct suitable amount of maintenance being awarded and to secure compliance 5 ## **W.P. (C) No. 653 of 2010** with its directions, if the subordinate court has failed to grant or to enforce the same relief. May be that the High Court could have passed such order on the next date of hearing. But the petitioner has approached this Court probably impelled by the impatience.” 6. Whether under Article 226 or 227, the power of inference has to be sparingly exercised. Though the learned counsel for the petitioner would point out that there is existence of excess of jurisdiction in allowing the amendment, we do not see any excess of jurisdiction, as such. The petitioner much establish that the Family Court has exceeded the limits of its jurisdiction. We do not see how the Family court has exceeded its jurisdiction in allowing the amendment of the application of the petitioner to incorporate the market value of the gold ornaments. 7. We notice that the petition is filed in the year 2003 and is pending for consideration from period of time. The value of the gold was Rs.4,000/- at the time of institution of the petition. Of course, when the amendment is allowed, the court is not 6 ## **W.P. (C) No. 653 of 2010** pronouncing on the correctness of the averments which are sought to be introduced by the amendment. As far as Ext.P6 is concerned, we do not think, particularly in view of the scope of Articles 226 and 227, there is any illegality in the court directing the petitioner to furnish Rs.2,40,000/- more as condition for lifting the judgment. This Writ Petition fails and accordingly it is dismissed. ## **K.M. JOSEPH, JUDGE** **M. L. JOSEPH FRANCIS, JUDGE** dl/