Anil Kumar and Nirmala v Treesa (OP (F.C.) No.610 of 2019)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** **OP (FC).No.610 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OP 314/2013 DATED 16-02-2011 OF FAMILY COURT, CHAVARA** ## **PETITIONER/S:** **1 ANILKUMAR AGED 54 YEARS MULLETHU PADINJARE VARIUM VEEDU, CHEPPAD MURI, CHINGOLI VILLAGE, CHEPPAD.P.O, ALAPPUZHA DISTRICT** **2 NIRMALA AGED 42 YEARS MULLETHU PADINJARE VARIUM VEEDU, CHEPPAD MURI, CHIINGOLI VILLAGE, CHEPPAD .P.O, ALAPPUZHA DISTRICT, FROM THEKKUMKATTIL VEEDU, PAYAM DESOM, PAYAM VILLAGE, THALASSERI, KANNUR DISTRICT** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/S:** **TREESA AGED 55 YEARS D/O.MAGGI, MAGI NIVAS, THEKKUMBHAGOM VILLAGE, THEKKUMBHAGOM MURI, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT, P IN-690544** **R1 BY ADV. SRI.B.MOHANLAL** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 2910-2019, THE COURT ON 13-11-2019 DELIVERED THE FOLLOWING:** ## **(C.R)** **K.HARILAL & ANNIE JOHN, JJ ========================== O.P.(F.C.) No. 610 of 2019 =============================== Dated this the 13[th ] day of November, 2019** ## **JUDGMENT** ## **ANNIE JOHN, J** The petitioners herein are the respondents in I.A.No.313/2018 in O.P.No.314/2013 on the files of the Family Court,Chavara. The O.P was originally filed by the respondent herein before the Family Court Kollam as O.P.No.201/2011 and after the formation of the Family Court, Chavara and the same was transferred and renumbered as above. The prayer in the above O.P was for return of 160 sovereigns of gold ornaments worth Rs.24 lakhs and an amount of Rs.9 lakhs allegedly due from the petitioners. 2. The case of the respondent in the O.P **OP (FC).No.610 OF 2019** **3** was that the marriage between the 1[st] petitioner and the respondent was solemnised on 27.02.1995 as per the rites and rituals prevalent among the Latin Catholic Community at St.Thomas Moore Latin Catholic Church, Palluruthy, Ernakulam. A male child was born in the wedlock on 23.11.1996. The relationship between the respondent and the 1[st] petitioner became strained and they had been living separately since 18.04.2006. Exhibit P1 is the copy of the O.P.No. 314/2013 filed by the respondent herein. The petitioners have filed a detailed counter affidavit denying on the facts as stated in Ext.P1. When the O.P was ripe for trial, the respondent has filed an application as I.A.No.313/2018 to amend the O.P incorporating additional averments and prayers. In the above amendment application, the respondent has prayed for carrying exhaustive amendments of the entire petition and enhanced the total claim to the tune of Rs.60,53,150/- by adding the money recoverable **OP (FC).No.610 OF 2019** **4** from the 1[st] petitioner as Rs.35,53,150/- as against the claim of Rs.9 lakhs. True copy of the affidavit and petition for amendment dated 14.02.2018 is produced as Ext.P2. 3. The petitioners herein had objected to the above amendment pointing out the fact that the amendment sought for is intended only to protract the proceedings and thereby to harass the petitioners. Further the petition is highly belated and that if the amendment is permitted, it would alter the very nature of the O.P. Many of the claims as mentioned in the amendment application are barred by limitation and therefore it is not legally permissible to incorporate such claims by way of amendment. The true copy of the objection filed by the 1[st] petitioner dated 20.04.2018 is produced as Ext.P3. 4. But the Court below has allowed Ext.P2 vide order dated 04.06.2018 holding that the **OP (FC).No.610 OF 2019** **5** amendment sought for is only to incorporate certain other money claims which are omitted to be incorporated earlier. The true copy of the order passed by the Family Court, Chavara vide I.A.No.313/2018 in O.P.No.314/2013 dated 04.06.2018 is produced as Ext.P4. 5. Ext.P4 order was challenged by the petitioner before this Court in O.P.(F.C) No.393/2018. After hearing both sides, this Court vide judgment dated 23.11.2018 has set aside Exhibit P4 order and directed the Court below to dispose of the above said I.A afresh in accordance with the principles of law relating to amendment of pleadings. The true copy of the judgment passed by this Court in O.P.(F.C) No.393/2018 dated 23.11.2018 is produced as Exhibit P5. 6. After receipt of Ext.P5 judgment the Court below has heard the matter afresh and allowed the I.A holding that in order to render **OP (FC).No.610 OF 2019** **6** justice to both parties amendment application has to be allowed and it was allowed on payment of cost of Rs.3,000/-. The true copy of the order in above said I.A is produced as Exhibit P6. 7. It was submitted that Exhibit P6 order is highly unjust, illegal and arbitrary and it was passed by disregarding the observations made by this Court in Exhibit P5 judgment. The reason as stated by the Court below for allowing the application are totally unsustainable in law. The Court below ought to have found that the monetary claim in the O.P was only for Rs.9 lakhs which is now sought to be enhanced to Rs.35 lakhs on the ground that those amounts were omitted to be incorporated earlier. The main ground has urged by the petitioners that the Court below ought to have found that there is an unexplained and inordinate delay in filing the the amendment application by the respondent and therefore the respondent ought to have passed the test of 'due **OP (FC).No.610 OF 2019** **7** diligence' as contemplated under Order VI Rule 17 of the Code of Civil Procedure. The O.P was filed in the year 2011 and the amendment application was filed only in the year 2018, that too when the case was posted for the cross examination of the respondent. The Court below ought to have found that the present attempt of the respondent is to incorporate additional averments and additional claims in the original petition, which are now barred by limitation. All the grounds as urged above, petitioners sought for setting aside Exhibit P6 order dated 26.08.2019 passed by the Family court, Chavara in I.A.No.313/2018 in O.P.No.314/2013. Now the only question to be considered whether the amendment application allowed by the Court below is justifiable or not. 8. According to the petitioners counsel the amendment application was filed only in the year 2018 while the main O.P was filed in the year **OP (FC).No.610 OF 2019** **8** 2011. 9. In fact, these petitioners approached this Court earlier by filing O.P.(F.C) No.393/2018. As per the order of this Court Ext.P4 order was set aside and the Family Court, chavara is directed to dispose of I.A.No.313/2018 afresh, hearing in mind the principles of law relating to amendment of pleadings and after hearing both sides on their respective contentions. Thereafter vide order dated 04.06.2018 passed in I.A.No.313/2018, the Family Court allowed the amendment application. In this connection, let us examine the statutory mandate under Order VI Rule 17 of the Code of Civil Procedure. 10. Order VI Rule 17 of the Code of Civil Procedure says that "the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments **OP (FC).No.610 OF 2019** **9** shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 11. It is true that the expression at any stage of the proceeding means and intends any stage before or after commencement of the trial. The amendment can be allowed liberally before commencement of the trial, if it is required for the proper disposal of the case. But after commencement of the trial, the Court shall be satisfied that in spite of due diligence, the parties proposing the amendment could not have raised the matter before the commencement of trial. The question to be considered is whether the application was filed before commencement of **OP (FC).No.610 OF 2019** **10** the trial?. The lower Court has held that the trial of the case has not commenced and the case was posted for petitioners evidence. **==> picture [410 x 11] intentionally omitted <==** respondent has filed affidavit in support of his examination-in-chief. The Lower Court held that the said affidavit was not acted upon by the Trial Court as chief examination and the respondent was not called upon to cross examine the petitioner also. According to the Lower Court the present amendment application was filed within time, before commencement of the trial. Accordingly, the lower Court held that the proviso will not come into play. It has held in ## _**J.Samuel and others v. Gattu Mahesh and others**_ [( _**2012(2) SCC 300]** that_ no application for amendment shall be allowed after the trial has commenced except when the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before **OP (FC).No.610 OF 2019** **11** commencement of the trial. 13. It is true that the proviso to Order VI Rule 17 to some extent curtails absolute discretion to allow amendment at any stage. The object of Order VI Rule 17 that the Court should try the case that comes before them on merits and should, consequently allow all amendments that may be necessary for determining real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. This matter has been reiterated in **(** _**2012) 11 SCC 341 between Abdul Rehman and**_ _**another v. Mohammed Ruldu and others.**_ 14. The main case of the petitioners is that the amendment sought by the petitioners will change entire nature and character of the original petition and that it was filed after commencement of the trial. Mainly the case was filed for return of the gold ornaments and money from the petitioners and later on the amendment **OP (FC).No.610 OF 2019** **12** application was filed by adding some more amount to the original claim by stating that she could not add those additional claims in the original O.P. 15. In this case the respondent has already filed an affidavit in Examination Chief. On filing of the affidavit itself the evidence has been commenced in this case. 16. It is to be noted that provisions of Order VI Rule 17 of the Code of Civil Procedure have been substantially amended by the CPC Amendment Act, 2002. Under the proviso no application for amendment shall be allowed, after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. The above proviso to Order VI Rule 17 was incorporated to shorten the litigation and speed up disposal of the suits. Thus, the power of the Court is curtailed for amendment of the pleadings, after the trial has **OP (FC).No.610 OF 2019** **13** commenced. In this case, the trial has commenced immediately after filing of the affidavit in connection with the chief examination by the respondent. So definitely, the provision to Order VI Rule 17 will start applying. So the findings entered by the Lower Court below that the trial has not commenced, even though the respondent has filed proof affidavit as Examination in Chief is not correct. 17. Further, from the affidavit filed by the respondent, it is clear that she had knowledge regarding the additional claims, before the commencement of trial; but she has raised the additional claims, after lapse of 7 years, after filing of the original O.P. So, as per the proviso to Order VI Rule 17, the respondent ought to have proved that after due diligence, he could not have raised the matter before commencement of trial. In this case, the respondent has failed to substantiate the fact that she could not have **OP (FC).No.610 OF 2019** **14** raised the matter earlier, before the commencement of trial, in spite of due diligence. She has categorically stated that she had knowledge regarding the entitlement of the additional claims but she could not raise the same in time. The lower court ought to have considered this matter, while considering the argument of the either side. It is true that the amendment can be allowed liberally, if it is filed before commencement of the trial; but after commencement of the trial the Court should have analysed the fact that whether she was prevented from producing the additional claim, by amendment as she was not aware of the fact. But here, in this case she was aware of the fact. So the proviso is operative against the amendment. For the reason as mentioned above, we have a considered opinion that the amendment application, which was allowed by the lower Court was liable to be dismissed inlimine. In the **OP (FC).No.610 OF 2019** **15** result, the impugned order, whereby amendment application stands allowed by the Family Court is hereby set aside. In the result, this O.P.(FC) is allowed. Sd/- **K.HARILAL, JUDGE** Sd/- **ANNIE JOHN, JUDGE** **SMA** **OP (FC).No.610 OF 2019** **16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION IN O.P.NO.314/2013 ON THE FILES OF THE FAMILY COURT, CHAVARA EXHIBIT P2 TRUE COPY OF THE AFFIDAVIT AND PETITION EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER DATED 20.04.2018 EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, CHAVARA IN IA NO.313/2018 IN O.P.NO.314/2013 DATED 04.06.2018 EXHIBIT P5 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN O.P. (FC)NO.393/2018 DATED 23.11.2018 EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, CHAVARA IN IA NO.313/2018 IN O.P.NO.314/2013 DATED 26.08.2019** ## **RESPONDENT(S)' EXHIBITS :- NIL** **//TRUE COPY//** **PA TO JUDGE** **SMA**