Johnson Jose @ Mathew v. Lovely Thomas @ Rose and Mariam

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **Mat.Appeal.No. 126 of 2007** **AGAINST THE ORDER/JUDGMENT IN OP 424/2001 of FAMILY COURT, KOTTAYAM DATED 19-06-2006** **APPELLANT(S)/APPELLANT/RESPONDENT.** **JOHNSON JOSE @ MATHEW, AGED 30, S/O.JOSEPH, OLICKAL HOUSE, MANALUMKAL,, AKALAKUNAM VILLAGE, KOTTAYAM.** **BY ADVS.SRI.BABU CHERUKARA SRI.P.A.SALIM** ## **RESPONDENT(S)/PETITIONER.:** **1. LOVELY THOMAS @ ROSE, AGED 23 YEARS, D/O.THOMAS, KALLUMKAMAKKEL THIDANADU.** **2. MARIAM, W/O.JOSEPH, AGED 70, OLICKAL HOUSE, MONALUMKAL,, AKALAKUNNAM VILLAGE.** **R,R2 BY ADV. SRI.V.R.ARUN R,R1 BY ADV. SRI.BECHU KURIAN THOMAS R,R1 BY ADV. SRI.ROSHEN.D.ALEXANDER** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.HARILAL & A.M.BABU, JJ.** --------------------------- **MAT.APPEAL No.126 of 2007** --------------------------- _Dated this the 2[nd] day of March, 2018_ ## **JUDGMENT** ## _**A.M.Babu, J.**_ While the marriage was subsisting, the wife filed two petitions. One was for divorce. That was allowed. No appeal is filed by the husband who is now the ex-husband. The other petition was filed by the wife against the husband and his mother for return of money and gold ornaments. It was allowed partly against the husband. The wife did not file appeal against the decree she suffered. The husband is in appeal against the decree passed against him. 2. The parties are referred to in this judgment as they are shown in the memorandum of appeal. 3. The case of the first respondent goes as follows: She was married to the appellant on 15.10.2000. On the day of betrothal Rs 25,000/- was given as her patrimony. She as bride wore 12.5 sovereigns of gold ornaments. The appellant received later Rs 8,500/- from the father of the first respondent. 16 grams of gold ornaments given to the child was also taken by him. 4. The appellant filed objection denying the allegations 2 MAT.APPEAL No.126 of 2007 against him. His contentions are stated below: No money was entrusted with him. The first respondent had only 4 sovereigns of gold ornaments. The rest of the ornaments she wore at the time of the marriage were gold plated ornaments. The appellant did not take or appropriate any money or gold ornament of the first respondent or the child. 5. PWs 1 to 4 were examined and Exts A1 to A5 were marked on the side of the first respondent. RW1 was examined and Exts B1 and B2 were marked on appellant's side. His mother who too was a party gave evidence as RW2. 6. The family court rejected the claims of the first respondent except one. A decree was granted directing the appellant to return Rs 25,000/- entrusted with him as the patrimony of the first respondent. It was directed that the amount shall carry interest at the rate of 6% per annum. 7. Heard Sri.P.A Salim and Sri.Roshan D.Alexander, the learned counsel for the appellant and the first respondent respectively. 8. The learned counsel for the appellant submitted that the first respondent did not have sufficient pleadings to contend that Rs 25,000/- was entrusted with the appellant. The learned 3 MAT.APPEAL No.126 of 2007 counsel submitted that there were two respondents in the original petition, but the allegation was that the entrustment was with the 'respondent'. The emphasis is that singular is used without indicating to whom it refers to. It is also submitted that the defective pleadings had been expanded and developed at the trial. The expansion or development was that evidence was given to the effect that the amount was handed over to the appellant by the uncle of the first respondent. For these reasons, according to the learned counsel, the first respondent was not entitled to a decree for money. 9. We are afraid, we are unable to accept the arguments of the learned counsel. What order 6 rule 2 of CPC insists on is that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. That means what is to be pleaded is the material facts. Order 6 rule 2 specifically states that evidence should not be pleaded. Paragraph 4 of the petition reads thus: Upon fixing the marriage, the petitioner was given an amount of Rs 25,000/- as her share from her father's property in cash which was entrusted with the respondent believing as the trustee of the 4 MAT.APPEAL No.126 of 2007 amount. 10. What we understood from the pleading of the first respondent is that Rs 25,000/-, being her patrimony, was entrusted with. The entrustment could be with the appellant or his mother, the second respondent. It is not possible for us to think that the appellant was in any manner misguided by paragraph 4 of the original petition. That is clear from the objection filed by him. He stated that he was not entrusted with any money. The purpose or object of pleading is that the other side should not be taken by surprise at the trial. The pleadings in original petition cannot be said to have misled the appellant. He did understand that the allegation was against him that the money was entrusted with him. The material facts to be pleaded were the entrustment of money and to whom it was entrusted with. Those are available in paragraph 4 of the original petition. It may be true that the first respondent could have raised better pleadings. But, the pleadings did not mislead the appellant. 11. The learned counsel for the appellant relied on a few decisions. One of the decisions was that of the Rajasthan High Court. In **Kanhaiya Lal vs Hari Singh (AIR 1996 Rajasthan 182),** the High Court said that a party could not improve his case 5 MAT.APPEAL No.126 of 2007 by producing witnesses at subsequent stage in evidence to give details and names of sub-tenants. That was a case where subletting was alleged without stating who the sub-lessee was. That is not the situation in the present case. Here, the first respondent did not give evidence that the money was entrusted with any person other than the appellant. 12. Another decision relied on by the learned counsel is that of the Karnataka High Court in **Nalini Sunder vs G.V.Sundar (AIR 2003 Karnataka 86)** . That was a case where evidence was let in to prove the instances or episodes of cruelty not pleaded. The said decision also does not apply to the facts of, and the situation in, the present case. 13. The learned counsel then relied on the apex court in **Bachhaj Nahar** vs **Nilima Mandal (AIR 2009 SC 1103)** . The apex court holds that a party cannot be allowed generally to expand his pleadings during trial. It is also held that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally covered the question involved and the parties proceeded on the basis that such case was at issue 6 ## MAT.APPEAL No.126 of 2007 and had led evidence thereon. It is also held that such expansion is permissible only in exceptional cases. In the present case, there has been no such expansion of the pleadings. Material facts were pleaded. But a mistake was committed by stating that the entrustment was with the 'respondent'. The appellant cannot magnify the said small defect to demolish the entire case of the first respondent. In this context it is apposite to refer to the decision of a full bench of this court. The decision is **Pottarath** ## **Kunhammi vs Varikkapulakkal Abdullakutty (2015 (1) KHC** **684)** . The full bench holds that if the court finds that no prejudice has been caused to the opposite side, it is not proper to deny relief on the ground of defect in pleadings. The said decision of the full bench is apt in the present situation. 14. We shall move on to the evidence. PW1 is the first respondent herself. She in her proof affidavit swore to her case of entrustment. She in cross-examination clarified that the payment was made on 15.12.1999 which was the betrothal day. It was elicited from her in cross-examination that Rs 25,000/- was paid on that day in cash and that the money was handed over by her uncle. PW1 asserted that the handing over of money took place in her presence. There has been no further cross-examination to 7 MAT.APPEAL No.126 of 2007 get over the facts elicited in cross-examination. We do not find anything to disbelieve the evidence of PW1, particularly the evidence elicited in cross-examination. 15. PW2 is the mother of PW1. PW2 also spoke to the entrustment. She spoke to the source of Rs 25,000/- to make the payment. She spoke that Rs 20,000/- was credited to her account by her elder daughter and that it was encashed on 14.12.1999. According to PW2, the balance Rs 5,000/- was raised by her from her family members. Ext A1 is the passbook of PW2. It shows the deposit of Rs 20,000/- on 14.12.1999 and its withdrawal on the same day. Thus it is positively proved that there was a withdrawal of Rs 20,000/- from the account of PW2 on 14.12.1999. The betrothal was on the very next day, 15.12.1999. We do not find any difficulty to believe the evidence of PW2 that the amount of Rs 20,000/- withdrawn on 14.12.1999 was entrusted along with Rs 5,000/- on the very next day, that is, the betrothal day. 16. The learned counsel for the appellant submits that PW2 is a person who cannot be believed at all. The learned counsel submits that PW2 denied having maintained an account in the Thidanad Service Co-operative Bank. I.A.No.842/2018 is filed 8 MAT.APPEAL No.126 of 2007 requesting to receive a document. The document sought to be received is the relevant page of the loan ledger maintained in the said bank. According to the learned counsel, PW2 lied in court that she had no account in the said bank. We do not see any valid reason stated in I.A.No.842/2018 to receive evidence in appeal. It was possible to obtain the said document before trial. We are not satisfied of any of the conditions contained in order 41 rule 27 of C.P.C for reception of additional evidence. We therefore dismiss I.A.No.842/2018. But it should not go without notice that PW2 did not deny the maintenance of an account in the said bank. PW2 did not say that she had no account in that bank. What she stated was only that she did not mortgage any property to obtain a loan from that bank and that no recovery proceedings were initiated against her. So we do not find any reason, much less the reason stated by the learned counsel, to disbelief PW2. 17. The evidence of PW1 and PW2 does inspire confidence. PW3 is the brother of PW2. The former deposed that he was the person who handed over the money to the appellant. The payment of money in connection with marriage is not something unheard of in India. 9 MAT.APPEAL No.126 of 2007 18. Having had a reappraisal of the pleadings and evidence, we find that the view taken by the judge of the family court, who had the added advantage of recording the evidence and watching the demeanour of witnesses, was not a view impossible to be taken. When the view taken by the trial court is one possible to be taken, the appellate court should not lightly interfere with the said view. Even otherwise, we are satisfied that the family court did not do any mistake while granting the decree which it granted. The appeal is without any merit. It deserves only a dismissal. However, we make no order as to costs. 19. Dismissed. No costs. sd/- ## **K.HARILAL, JUDGE** sd/- ## **A.M.BABU, JUDGE** sks/vgd/3.3.2018.