HEMA SUSAN JOSEPH v. MAJU RAJAN and M.S.RAJAN

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANTONY DOMINIC
P.D.RAJAN
Judgment Date: 2013-06-04
Court Decision / Holding: O.P.(FC.) No. 1926 of 2013 is dismissed. The Family Court’s order rejecting the amendment application (I.A.1974/2012 in O.P.No.257/2009) is affirmed, and the petition fails.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

HEMA SUSAN JOSEPH

Respondents

MAJU RAJAN
M.S.RAJAN

Legal Representation & Advocates

Counsels for Petitioners

• SRI.V.PHILIP MATHEW

Case Synopsis & Summary

This OP (FC) concerns a petition filed by Hema Susan Joseph challenging an order of the Family Court, Alappuzha, passed in I.A.1974/2012 in O.P.No.257/2009, which had rejected the petitioner’s application for amendment. The petitioner sought to amend Ext.P1 (the original petition filed in 2009) to incorporate additional pleadings, alter the reliefs prayed for, and add new reliefs, under Order VI Rule 17 CPC. The Family Court, after hearing, rejected this Ext.P7 order on the ground that the proposed amendment would amount to substituting and virtually rewriting the petition rather than amending it, thereby altering the character of the original plaint. The petitioner argued for a liberal approach to amendment, relying on Lakshmy Surendran v. Surendran and several Supreme Court decisions (Estralla Rubbe v. Dass Estate (P) Ltd; Sushil Kumar Jain v. Manoj Kumar; State of Madhya Pradesh v. Union of India). The Division Bench noted that while generally amendments should be liberally allowed, the application was filed when the case was posted for evidence, and the proposed amendments would transform the skeleton of Ext.P1 into something substantially different. The court concluded that the principles cited do not apply to the facts, and it declined to interfere. The OP (FC) was dismissed.

Provisions of Law Cited

Order VI Rule 17 of the CPC

Legal Doctrines & Maxims

Liberal attitude towards amendment of pleadings under Order VI Rule 17 CPC
Amendments should not substitute a new petition or alter the character of the original plaint

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends for a liberal approach to amendment of pleadings under Order VI Rule 17 CPC, arguing that the amendment would not prejudice the respondents and would merely clarify or expand existing prayers. She asserts that even with amendment the core structure of Ext.P1 remains the same, and that the Family Court’s indiscriminate rejection effectively substitutes a new petition for an old one. Citing Lakshmy Surendran v. Surendran and several Supreme Court authorities, she argues for flexible procedure to ensure substantive justice. She also contends that the desired reliefs could be granted within the framework of the original matter.

Contentions of Respondents

Respondents opposed the amendment, objecting to Ext.P4 as a belated attempt to substitute the pleading and reframe the case. They submitted that allowing the amendment at a late stage would alter the character of the petition, prejudicing them, and that the Family Court correctly rejected the application as not permissible under Order VI Rule 17 because the case had moved to the evidence stage.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Lakshmy Surendran v. Surendran	2013 (1) KHC 41	Distinguished	Cited as a general principle for liberal amendments but held not applicable to the facts of this case.
Estralla Rubbe v. Dass Estate (P) Ltd	2001 (8) SC 1997	Distinguished	Principles cited do not support the petitioner in the present factual scenario.
Sushil Kumar Jain v. Manoj Kumar and another	AIR 2009 SC 2544	Distinguished	Cited as a general principle but not applied to permit the amendment.
State of Madhya Pradesh v. Union of India and another	2011 (12) SCC 268	Distinguished	Not applicable to the facts; the court did not extend the liberal amendment principles here.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA 1935** **OP (FC).No. 1926 of 2013 ()** **---------------------------AGAINST THE ORDER IN I.A.NO.1974/2012 IN OP 257/2009 of FAMILY COURT, ALAPPUZHA DATED 14.05.2013** **PETITIONER(S)/PETITIONER: --------------------------------------------** **HEMA SUSAN JOSEPH, AGED 30 YEARS D/O.JOSEPH JOSPEH, VADAKKEPARAMBIL MALAYIL HOUSE LLAKKASSERRY MURI, CHENGANNOOR ALAPPUZHA DISTRICT-REPRESENTED BY HER FATHER AND POWER OF ATTORNEY HOLDER JOSEPH JOSEPH, VADAKKAEPARAMBIL MALAYIL HOUSE LLAKKASSERY MURI, CHENGANNOOR, ALAPPUZHA DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** ## **1. MAJU RAJAN,, AGED 31 YEARS** **S/O.RAJAN, MULETHATHIL HOUSE, KEEZHVANVAZHI MURI PANDANAD VILLAGE, CHENGANOOR, ALAPPUZHA DISTRICT.** **2. M.S.RAJAN,, AGED 63 YEARS MULETHATHIL HOUSE, KEEZHVANVAZHI MURI PANDANAD VILLAGE, CHENGANOOR, ALAPPUZHA DISTRICT.** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 1926 of 2013 ()** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT-P1 COPY OF O.P.257/09 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, ALAPPUZHA.** - **EXHIBIT-P2 COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT IN O.P.257/09** - **EXHIBIT-P3 COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN O.P.257/09 EXHIBIT-P4 COPY OF THE I.A.1974/2012 IN OP.257/09 FILED BY THE PETITIONER BEFORE THE FAMILY COURT,ALAPPUZHA.** - **EXHIBIT-P5 COPY OF THE OBJECTION FILED BY THE IST RESPONDENT IN I.A.1974/2012 IN OP.257/09** - **EXHIBIT-P6 COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN I.A.1974/2012 IN O.P.257/09.** - **EXHIBIT-P7 COPY OF THE ORDER DATED 14-05-2013 PASSED BY THE FAMILY COURT,ALAPPUZHA IN I.A.1974/2012 IN O.P.257/09.** **RESPONDENT(S)' EXHIBITS: NIL** - **---------------------------------------** ## **TRUE COPY** _acd_ **PA TO JUDGE.** ## **ANTONY DOMINIC & P.D. RAJAN, JJ.** ------------------------------------------O.P.(F.C.)No.1926 of 2013 ---------------------------------------------Dated this the 4[th] day of June, 2013 ## **JUDGMENT** ## **ANTONY DOMINIC,J.** This O.P.(F.C.) is filed challenging the order passed by the Family Court, Alappuzha in I.A.No.1974/2012 in O.P.No.257/2009. 2. The O.P.was filed by the petitioner herein against the respondents, who are her husband and his father, seeking realistion of Rs.3,30,000/- as value of 30 sovereigns of gold and a sum of Rs.4,00,000/- alleged to have been given to the respondents at the time of their marriage. 3. Counselling failed and pleadings were completed. Thereafter, the Family Court posted the case for evidence to 7.11.2012. At that stage, the petitioner filed Ext.P4 application under Order VI Rule 17 of C.P.C. seeking to amend Ext.P1 petition by incorporating additional pleadings and additional reliefs. The prayer was objected by the respondents and the O.P.(FC)No.1926/13 2 Family Court rejected the application by Ext.P7 order. According to the Family Court, in the guise of a belated amendment, what was attempted, was to virtually substitute a new petition for an old one and that such an amendment was not permissible. It is challenging this order of the Family Court, this O.P.(F.C.) is filed. 4. The learned counsel appearing for the petitioner contended that in matters of amendment of pleadings a liberal attitude should be adopted by Courts and that even if the amendment sought for is allowed the structure of the petition remains the same. According to him, by allowing the petition, no prejudice is caused to the respondents and that therefore, the Court should not have declined the petitioner's prayer. He also relied the principles laid down by this Court in _**Lakshmy Surendran**_ v. _**Surendran**_ [2013 (1) KHC 41] and the Apex Court decisions in _**Estralla Rubbe**_ r v. _**Dass Estate (P) Ltd**_ [2001 (8) SC 1997], _**Sushil Kumar Jain**_ v. _**Manoj Kumar and another**_ [AIR 2009 SC 2544] and _**State of Madhyapradesh**_ v. _**Union of India and another**_ [2011 (12) SCC 268]. 5. It is true that generally, when Courts are to deal with the applications made under Order VI Rule 17 of the O.P.(FC)No.1926/13 3 C.P.C. seeking amendment of pleadings, liberal attitude is to be adopted and amendments are to be allowed. It has also been laid down that when a different or additional approach to an existing fact is sought to be introduced by an amendment, that should be allowed. Although these principles laid down in the judgments relied on by the learned counsel for the petitioner are not open to doubt, the question to be considered is whether these principles have any application to the facts of this case. 6. Ext.P1 is the petition filed in 2009 and Ext.P4 is the application filed in 2012 for amendment and admittedly this application has filed at a time when the case was posted for evidence. Reading of the amendment petition shows that the petitioner sought substitution of several paragraphs and sought addition of various averments. She also sought modification of the existing prayers and also incorporation of additional prayers. Thus if the amendment sought for was allowed, what remained was only the skeleton of Ext.P1 petition, nothing else would have survived. It was therefore that the Family Court came to the conclusion that the belated attempt of the petitioner was to substitute a new petition for 4 O.P.(FC)No.1926/13 an old one and that the amendment would alter the very character of the plaint. This finding of the Family Court, in our view also, does not suffer from any illegality and the judgments relied on by the learned counsel for the petitioner also do not support him to assail these findings. In such circumstances, we are unable to interfere with Ext.P7. O.P.(F.C.) fails and accordingly it is dismissed. **ANTONY DOMINIC, JUDGE** **P.D. RAJAN, JUDGE.** acd O.P.(FC)No.1926/13 5 O.P.(FC)No.1926/13 6