Jacob Babu D'Cruz v. Treeza Jacob alias Theressa Fernandez

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943 O.P.(FC) NO.181 OF 2019** **AGAINST THE ORDER DATED 06.03.2019 IN I.A.NO.89 OF 2019 IN O.P. NO.388 OF 2018 OF FAMILY COURT, THALASSERY, KANNUR PETITIONER/S:** **JACOB BABU D CRUZ, AGED 48 YEARS, S/O. BONIFACE D'CRUZ, JOBIN VILLA, PATHIRIYAD AMSOM, CHAMPAD DESOM, NOW RESIDING AT AMBALA VALAPPU, GOPLAPETTA, P.O. TEMPLE GATE THALASSERY, PIN - 670 102, KANNUR DISTRICT. BY ADVS. PRAJIT RATNAKARAN SRI.ABDUL RAOOF PALLIPATH** **RESPONDENT/S:** **TREEZA JACOB ALIAS THERESSA FERNANDEZ, W/O. JACOB BABY D'CRUZ, AGED 45 YEARS, JOBIN VILLA, PATHIRIYAD, P.O. CHAMPAD, PIN - 670 741, KANNUR DISTRICT.** **BY ADV SRI.M.V.AMARESAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 24.08.2021, ALONG WITH O.P.(FC)NO.182/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(FC) Nos.181 & 182 OF 2019 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF AUGUST 2021 / 2ND BHADRA, 1943** **O.P.(FC) NO.182 OF 2019** **AGAINST THE ORDER DATED 06.03.2019 IN I.A.NO.88 OF 2019 IN O.P.NO.388 OF 2018 OF THE FAMILY COURT, THALASSERY, KANNUR PETITIONER/S:** **JACOB BABU DCRUZ, AGED 48 YEARS, S/O BONIFACE DCRUZ, JOBIN VILLA, PATHIRIYAD AMSOM, CHAMPAD DESOM, NOW RESIDING AT AMBALA VALAPPU, GOPLAPETTA, P.O.TEMPLE GATE THALASSERY,PIN-670102, KANNUR DISTRICT.** **BY ADVS. PRAJIT RATNAKARAN SRI.ABDUL RAOOF PALLIPATH** **RESPONDENT/S:** **TREEZA JACOB ALIAS THERESSA FERNANDEZ, W/O.JACOB BABY D'CRUZ, AGED 45 YEARS, JOBIN VILLA, PATHIRIYAD, P.O.CHAMPAD, PIN-670741, KANNUR DISTRICT.** **BY ADV SRI.M.V.AMARESAN** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 24.08.2021, ALONG WITH O.P.(FC)NO.181/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(FC) Nos.181 & 182 OF 2019 -3- ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner in these original petitions filed O.P.No.388 of 2018 before the Family Court, Thalassery, an original petition under Section 10(i)(x) of the Divorce Act, 1869, seeking dissolution of marriage on the ground of cruelty. A copy of that original petition is placed on record as Ext.P1. The respondent wife entered appearance and filed Ext.P2 objection. The petitioner filed I.A.No.89 of 2019 [Ext.P3 in O.P.(FC).No.181 of 2019], an application for amendment under Order VI Rule 17 of the Code of Civil Procedure. In that interlocutory application, the respondent filed objection [Ext.P4 in O.P.(FC).No.181 of 2019]. The petitioner has also filed I.A.No.88 of 2019 [Ext.P3 in O.P(FC).No.182 of 2019], an application under Order I Rule 10 of the Code of Civil Procedure, seeking an order to implead Jobrita D'Cruz, minor aged 16 years, represented through her mother, the respondent herein, as supplemental 2[nd] respondent in O.P.No.388 of 2018. The respondent filed counter affidavit [Ext.P4 in O.P(FC).No.182 of 2019] opposing the reliefs sought for in that application. The Family Court by a common order dated 06.03.2019 dismissed both the interlocutory applications. Paragraphs 6 of that order reads thus: O.P.(FC) Nos.181 & 182 OF 2019 -4- “6. **Points** : OP.388/18 is filed for a decree of divorce under Section 10(1)(x) of the Divorce Act, on the ground of cruelty. Now the application is filed to implead the 2[nd] child named Jobrita D'Cruz of the 1[st] petitioner as 2[nd] respondent in the proceedings. The case of the petitioner is that he is not the father of Jobrita D'Cruz and this child was born in an extra marital relationship of the 1[st] respondent with a stranger whose whereabouts are not known. The prayer of the petitioner has been opposed by the respondent. The contention of the respondent is that impleadment of proposed 2[nd] respondent is not at all required in this case. It is further alleged that the intention of the petitioner is only to harass the respondent. I find merit in this objection. As the prayer in the petition is only for a decree of divorce on the ground of cruelty, the impleadment of 2nd respondent is not at all required. If he has got a case that the proposed 2[nd] respondent is not his daughter, he had to file an application for declaration. The amendment is also not required as the prayer for impleadment is disallowed. The proposed amendment is only to the effect that the supplemental 2[nd] respondent is not the child born to him. So I am of the view that both applications are liable to be dismissed.” (Underline supplied) 2. Feeling aggrieved by the dismissal of I.A.No.89 of 2019, the petitioner filed O.P.(FC).No.181 of 2019 and O.P.(FC).No.182 of 2019 is filed against the dismissal of I.A.No.88 of 2019. O.P.(FC) Nos.181 & 182 OF 2019 -5- 3. On 21.03.2019, when these original petitions came up for admission, this Court admitted the matter on file and issued notice by speed post to the respondent. This Court had granted an interim order staying all further proceedings in O.P.No.388 of 2018 on the file of the Family Court, Thalassery, for a period of one month. The said interim order was extended until further orders on 22.05.2019. 4. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, on the impugned order dated 06.03.2019 of the Family Court, Thalassery, in I.A.Nos.88 and 89 of 2019 in O.P.No.388 of 2018, whereby those applications were dismissed, for the reasons stated therein. 6. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both O.P.(FC) Nos.181 & 182 OF 2019 -6- administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 7. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the O.P.(FC) Nos.181 & 182 OF 2019 -7- Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 8. Insofar as I.A.No.88 of 2019 in O.P.No.388 of 2018 is concerned, it was an application filed by the petitioner seeking an order to implead Jobrita D'Cruz, the minor aged 16 years, represented by her mother, the respondent herein, as supplemental 2[nd] respondent. As already noticed hereinbefore, O.P.No.388 of 2018 is one filed by the petitioner under Section 10(1)(x) of the Divorce Act, seeking dissolution of the marriage between the petitioner and the respondent, on the ground of cruelty. As rightly noticed by the Family Court in the impugned order dated 06.03.2019, the impleadment of the minor child is not at all O.P.(FC) Nos.181 & 182 OF 2019 -8- required, since the relief sought for in that original petition is a decree of divorce on the ground of cruelty. 9. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that the reasoning of the Family Court in rejecting I.A.No.88 of 2019 in O.P.No.388 of 2018 warrants no interference in O.P(FC).No.182 of 2019, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 10. Insofar as the challenge made in O.P.(FC).No.181 of 2019 against the dismissal of I.A.No.89 of 2019 in O.P.No.388 of 2018 is concerned, that application was one filed for amendment of the pleading in that original petition, by incorporating an additional paragraph, which is extracted in paragraph 2 of the impugned order of the Family Court. The Family Court rejected that application stating that amendment is not required as the prayer for impleadment is disallowed. 11. Order VI, Rule 17 of the Code of Civil Procedure deals with the amendment of pleadings. Order VI, Rule 17 of the Code, as substituted by the Code of Civil Procedure (Amendment) Act, 2002, provides that the court may at any stage of the proceedings allow O.P.(FC) Nos.181 & 182 OF 2019 -9- either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. However, going by the proviso to the said Rule, 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. 12. The proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908 introduced by the Code of Civil Procedure (Amendment) Act, 2002 is intended to ensure speedy trial of cases by curtailing protraction of cases at the trial stage. In a case where the trial has commenced, the court can allow an application made for amendment of pleadings, if it comes to the conclusion that in spite of due diligence, the applicant could not file such an application before commencement of trial and that, the amendment sought for is necessary for the purpose of determining the real controversy between the parties. 13. In **Rajkumar Gurawara (Dead) through Lrs. v. S.K. Sarwagi and Co. (P) Ltd. [(2008) 14 SCC 364]** the Apex Court held that Order VI, Rule 17 of the Code of Civil Procedure confers O.P.(FC) Nos.181 & 182 OF 2019 -10- jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. In the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso. 14. Order VIII, Rule 9 of the Code deals with subsequent pleadings. Order VIII, Rule 9 of the Code, as substituted by the Code of Civil Procedure (Amendment) Act, 2002, provides that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the court and upon such terms as the court thinks fit; but the court may at any time require a written statement or additional written statement from any of the parties O.P.(FC) Nos.181 & 182 OF 2019 -11- and fix a time of not more than thirty days for presenting the same. 15. A combined reading of the provisions under Order VI, Rule 17 and Order VIII, Rule 9 of the Code make it explicitly clear that, while the power of the court to permit amendment of pleadings is restricted by the proviso to that Rule, whereby such request made after the trial has commenced shall not be allowed 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. On the other hand, going by the provisions under Order VIII, Rule 9, leave of the court, on such terms as it thinks fit, is required for presenting pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim. But, the court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. 16. In **Jayalakshmi v. Sarada [(2009) 14 SCC 525]** one of the questions that was raised before the Apex Court was as to the distinction between Order VI, Rule 17 and Order VIII, Rule 9 of the Code of Civil Procedure. In the said decision, after referring to the provisions of Order VI, Rule 17 of the Code, the Apex Court O.P.(FC) Nos.181 & 182 OF 2019 -12- held that the said Order and Rule spea in O.P.No.ent of pleadings, whereas Order VIII, Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas, by reason of the former, unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings. In the said decision, after referring to the provisions under Order VI, Rule 17 of the Code and also the decisions on that aspect, the Apex Court held that the proviso appended to Order VI, Rule 17 of the Code is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. 17. An application for amendment filed under Order VI, Rule 17 of the Code of Civil Procedure has to be dealt with appropriately by taking note of the requirements of Rule 17. Such an application cannot be rejected stating that the application for impleadment is disallowed. In such circumstances, this original petition is allowed by setting aside the order dated 06.03.2019 in I.A.No.89 of 2019 in O.P.(FC) Nos.181 & 182 OF 2019 -13- O.P.No.388 of 2018 and directing the Family Court to reconsider that application, i.e., I.A.No.89 of 2019, and pass appropriate orders thereon, taking note of the law laid down in the decisions referred to surpa, as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this judgment. 18. In the result, O.P.(FC).No.182 of 2019 is dismissed and O.P(FC).No.181 of 2019 is allowed as above. The legal and factual contentions raised by both sides on the merits of the matter pending before the Family Court are left open to be raised before that court, at appropriate stage. **Sd/-** **ANIL K.NARENDRAN, JUDGE.** **Sd/-** **K.BABU, Judge.** MIN O.P.(FC) Nos.181 & 182 OF 2019 -14- ## **APPENDIX OF O.P.(FC) NO.181 OF 2019** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE OP 388/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P2** **TRUE COPY OF THE COUNTER STATEMENT IN OP 388/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P3** **TRUE COPY OF THE I.A. 89/2019 FILED BEFORE THE FAMILY COURT , THALASSERY.** **EXHIBIT P4** **TRUE COPY OF THE COUNTER IN IA 89/2019 FILED BEFOE THE FAMILY COURT, THALASSERY.** **EXHIBIT P5** **TRUE COPY OF THE ORDER DATED 06.03.2019 IN IA 89/2019 IN OP 388/2018 OF THE FAMILY COURT, THALASSERY.** O.P.(FC) Nos.181 & 182 OF 2019 -15- ## **APPENDIX OF O.P.(FC) NO.182 OF 2019** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1** **TRUE COPY OF THE OP NO.388/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P2** **TRUE COPY OF THE COUNTER STATEMENT IN OP.388/2018 FILED BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P3** **TRUE COPY OF THE I.A.88/2019 FILED BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P4** **TRUE COPY OF THE COUNTER IN IA.88/2019 FILED BEFORE THE FAMILY COURT, THALASSERY.** **EXHIBIT P5** **TRUE COPY OF THE ORDER DATED 6.3.2019 IN IA.88/2019 IN OP.388/2018 OF THE FAMILY COURT, THALASSERY.**