Ameesha v. Dr. N. Nifina

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** **OP (FC).No. 208 of 2019** **AGAINST THE ORDER DATED 15.2.2019 IN I.A.No.89 OF 2019 IN O.P.No.1377 OF 2016 of FAMILY COURT, KOTTARAKKARA** ## **PETITIONER/3[RD ] DEFENDANT** **AMEESHA AGED 30 YEARS D/O.NAZAR,TC.51/1005(1) INDUSTRIAL ESTATE,PAPPANAMCODE.P.O, THIRUVANANTHAPURAM.** **BY ADV. SRI.R.GOPAN** ## **RESPONDENT/PLAINTIFF:** **DR.N.NIFINA AGED 30 YEARS D/O.E.NAJEEMUDEEN KUNJU,ROCLANT, KUNNICODE.P.O, KOLLAM-695 508.** **BY ADV. SRI.C.R.JAYAKUMAR** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(F.C)No.208 of 2019 2 ## **JUDGMENT** ## **Ravikumar, J.** This original petition is directed against the order dated 15.2.2019 passed by the Family Court, Kottarakkara in I.A.No.89 of 2019 in O.P.No.1377 of 2016. The said I.A. was filed by the petitioner herein who was the 3[rd] respondent in the said original petition, under Order I Rule 10(2) and Section 151 of the Code of Civil Procedure with the prayer to delete him from the array of parties. The Family Court, after considering the rival contentions, dismissed the application. It is in the said circumstances that the captioned original petition has been filed. 2. We have heard the learned counsel for the petitioner and also the learned counsel appearing for the respondent. Hereafter in this judgment the parties are referred to in accordance with their status in this original petition unless otherwise specifically mentioned. 3. O.P.No.1377 of 2016 has been filed by the respondent herein against respondents 1 to 3 therein including the petitioner herein, for recovery of gold ornaments or the value thereof to the tune of 21,25,000/-, of the value of household articles to the tune of₹ ₹30,000/-, of compensation of ₹10,00,000/- and for recovery of an O.P.(F.C)No.208 of 2019 3 amount of ₹7,00,000/- allegedly given to the respondents therein at the time of marriage and of a further amount of ₹5,00,000/- towards marriage expenses. The aforesaid I.A. has been filed by the petitioner stating that he is absolutely an unnecessary party to the original petition. It is specifically stated therein that there is absence of any specific prayer for recovery of gold or cash from him and there is no specific averment to the effect that gold or cash were entrusted to him. The petitioner is the brother of the husband of the respondent. A perusal of the impugned order would reveal that after considering the rival contentions and also the rival pleadings the Family Court had also found lacking of specific pleadings in the original petition to the effect that the petitioner had also misappropriated gold and cash of the respondent. Even after arriving at such a conclusion the Family Court observed that the question whether the petitioner (the third respondent therein) is a necessary party or not whether he is liable for gold ornaments and cash received from the respondent's family could be decided or adjudicated after taking evidence of the parties and therefore, there is no necessity to delete the petitioner from the party array. It is based on such conclusions that the I.A. was dismissed. O.P.(F.C)No.208 of 2019 4 4. There can be no doubt with respect to the position that the parties are to be tied down to their pleadings and that parties could be permitted to let in evidence in tune with their pleadings. In the decision in **Ram Sarup Gupta (dead) by L.Rs.** v. **Bishun Narain Inter College and others (AIR 1987 SC 1242)** the Apex Court held that the object and purpose of pleading is to enable the adversary party to know the case he/she has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts therein so that other party may not be taken by surprise, it is further held therein. In **Mrs.Om Prabha Jain** v. **Abnash Chand and** **another (AIR 1968 SC 1083)** the Hon'ble Apex Court held that the ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Further, in **S.N.Ranade** v. **Union of India and another (AIR 1964 SC 24)** the Hon'ble Apex Court held that no kind of evidence could be looked into on a plea which was never been putforth. In the light of the decisions referred (supra) there can be no doubt with respect to the position that in the absence of necessary pleadings the parties could not be permitted to let in evidence in a matter in respect of which there is absolute absence of plea. In the light of **S.N.Ranade's** case (supra) it is further evident that even if evidence was let in on a plea which was O.P.(F.C)No.208 of 2019 5 never been putforth it could not be looked into for the purpose of adjudicating on the said plea. In the light of the aforesaid decisions and in view of the admitted position obtained in this case the question is whether the petitioner viz., the third respondent therein is a necessary party to O.P.No.1377 of 2016. In this context, it is to be noted that after perusing the pleadings and the materials on record the Family Court evidently arrived at the conclusion that no specific pleadings are there in the original petition alleging misappropriation or even appropriation of gold and cash of the respondent by the petitioner. It is an admitted case that there is absolute absence of any pleading to the effect that either gold or cash, was entrusted to the petitioner by the respondent. When that be the case, we are at a loss to understand as to why the Family Court deferred the decision regarding the question as to whether the 3[rd] respondent therein viz., the petitioner herein was a necessary party or not. In such circumstances, how can it be said that the said question need be considered only after the petitioner viz., the 3[rd] respondent therein adduced evidence. As noticed hereinbefore, the original petition has been filed mainly for the prayers specifically referred hereinbefore. When that be the nature of the reliefs sought for in the original petition, in the absence of specific pleading on the aforesaid aspects, how can recovery be ordered against the petitioner ? O.P.(F.C)No.208 of 2019 6 5. The long and short of the discussion is that in view of the admitted position that there is absolute absence of necessary pleadings either regarding appropriation/misappropriation of gold and cash by the petitioner herein/3[rd] respondent therein as also in the absence of pleadings to the effect that either cash or gold was entrusted with him by the respondent herein/petitioner therein, the petitioner herein/3[rd] respondent therein, could not be said to be a necessary party and in fact, he is absolutely an unnecessary party. There is absolutely no need to drag him to the proceedings. Virtually, the learned counsel appearing for the respondent would also admit the factum of absence of pleadings against the petitioner herein/3[rd] respondent therein in the aforesaid original petition. In the said circumstances, the impugned order passed by the Family Court in I.A.No.89 of 2019 in O.P.No.1377 of 2016 is set aside. I.A.No.89 of 2019 in O.P.No.1377 of 2016 is allowed and the petitioner herein who was the 3[rd] respondent in the original petition is deleted from the array of parties. 6. The learned counsel appearing for the respondent prayed that the Family Court may be directed to dispose of the original petition within a time frame. In this context, it is to be noted that this Court passed an order on 5.1.2018 in Tr.P.(C)No.170 of 2017 in O.P.No.1377 of 2016, the original petition which is pending before the Family Court. O.P.(F.C)No.208 of 2019 7 It was filed to transfer the said original petition from Family Court, Kottarakkara to Family Court, Thiruvananthapuram. This Court while dismissing the said transfer petition ordered that the Family Court, Kottarakkara should take all reasonable endeavours to ensure that O.P.No.1377 of 2016 is disposed of without much delay preferably within one year from the date of receipt of copy of the order. The fact is that despite the said order which was passed on 5.1.2018 the matter is still pending. In such circumstances, we are of the view that it is only appropriate for the Family Court, Kottarakkara to make an earnest effort to dispose of the original petition as early as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. This original petition is disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **N.NAGARESH Judge** TKS O.P.(F.C)No.208 of 2019 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE O.P.NO.1377/2016 OF THE FAMILY COURT,KOTTARAKKARA FILED BY THE RESPONDENT DATED 30.12.2016** **EXHIBIT P2 PHOTOCOPY OF WRITTEN STATEMENT FILED BY THE COUNTER PETITIONERS IN O.P.NO.1377/2016 BEFORE THE FAMILY COURT,KOTTARAKKARA.** **EXHIBIT P3 PHOTOCOPY OF THE I.A.NO.89/2019 IN OP.NO.1377/2016 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT,KOTTARAKKARA.** **EXHIBIT P4 PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.89/2019 IN O.P.NO.1377/2016 OF THE FAMILY COURT, KOTTARAKKARA DATED 1.2.2019.** **EXHIBIT P5 PHOTOCOPY OF THE ORDER DATED 15.2.2019 IN E.A.NO.89/2019 IN O.P.NO.1377/2016 OF THE FAMILY COURT,KOTTARAKKARA.** TKS