Joshy P.C v Sheeba Varikkamakkil

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 O.P.(FC) NO. 644 OF 2022** **AGAINST THE ORDER DATED 20.10.2022 IN I.A.NO.6 OF 2022 IN O.P.NO.358 OF 2019 ON THE FILES OF THE FAMILY COURT,** **KALPETTA** ## **PETITIONER:** **JOSHY P.C,** **AGED 44 YEARS, S/O.CHUMMARKUTTY, PULLORKUNNEL HOUSE, KABANIGIRI P.O, PADICHIRA AMSOM DESOM OF PULPALLY, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHINOJ STEEPHEN, S/O.STEEPHEN, AGED 43 YEARS, KUNCHIRAKATTU HOUSE, MARAKKADAVU P.O, PADICHIRA VILLAGE, SULTHAN BATHERY, WAYANAD DISTRICT, PIN – 673579.** **BY ADVS. P.U.SHAILAJAN NIDHEESH T.P** ## **RESPONDENT:** **SHEEBA VARIKKAMAKKIL AGED 36 YEARS, D/O.ABRAHAM, VARIKKAMAKKIL HOUSE, CHITTARIPARAMBA, ALANCHERY P.O, KANNUR DISTRICT, PIN – 670650.** **BY ADVS. NARENDRA KUMAR M HARSHADEV M.** 2 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.02.2023, ALONG WITH OP (FC).645/2022, 647/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 O.P.(FC) NO. 645 OF 2022** **AGAINST THE ORDER DATED 20.10.2022 IN I.A.NO.4 OF 2022 IN O.P.NO.360 OF 2019 ON THE FILES OF THE FAMILY COURT,** ## **KALPETTA** ## **PETITIONER:** **JOSHY P.C,** **AGED 44 YEARS, S/O.CHUMMARKUTTY, PULLORKUNNEL HOUSE, KABANIGIRI P.O, PADICHIRA AMSOM DESOM OF PULPALLY, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHINOJ STEEPHEN, S/O.STEEPHEN, AGED 43 YEARS, KUNCHIRAKATTU HOUSE, MARAKKADAVU P.O, PADICHIRA VILLAGE, SULTHAN BATHERY, WAYANAD DISTRICT, PIN-673579.** **BY ADVS.** **P.U.SHAILAJAN NIDHEESH T.P** ## **RESPONDENT:** **SHEEBA VARIKKAMAKKIL, AGED 36 YEARS, D/O.ABRAHAM, VARIKKAMAKKIL HOUSE, CHITTARIPARAMBA, ALANCHERY P.O, KANNUR DISTRICT, PIN – 670650.** 4 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 **BY ADVS. NARENDRA KUMAR M HARSHADEV M.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.02.2023, ALONG WITH OP (FC).644/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 O.P.(FC) NO. 647 OF 2022** **AGAINST THE ORDER DATED 20.10.2022 IN I.A.NO.4 OF 2022 IN O.P.NO.361 OF 2019 ON THE FILES OF THE FAMILY COURT,** ## **KALPETTA** ## **PETITIONER:** **JOSHY P.C.,** **AGED 44 YEARS, S/O.CHUMMARKUTTY, PULLORKUNNEL HOUSE, KABANIGIRI P.O, PADICHIRA AMSOM DESOM OF PULPALLY, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHINOJ STEEPHEN, S/O.STEEPHEN, AGED 43 YEARS, KUNCHIRAKATTU HOUSE, MARAKKADAVU P.O, PADICHIRA VILLAGE, SULTHAN BATHERY, WAYANAD DISTRICT, PIN – 673579.** **BY ADVS. P.U.SHAILAJAN NIDHEESH T.P** ## **RESPONDENT:** **SHEEBA VARIKKAMAKKIL AGED 36 YEARS, D/O.ABRAHAM, VARIKKAMAKKIL HOUSE, CHITTARIPARAMBA, ALANCHERY P.O, KANNUR DISTRICT, PIN – 670650.** 6 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **BY ADV NARENDRA KUMAR M** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.02.2023, ALONG WITH OP (FC).644/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 7 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944 O.P.(FC) NO. 648 OF 2022** **AGAINST THE ORDER DATED 20.10.2022 IN I.A.NO.4 OF 2022 IN O.P.NO.359 OF 2019 ON THE FILES OF THE FAMILY COURT,** ## **KALPETTA** ## **PETITIONER:** **JOSHY P.C** **AGED 44 YEARS, S/O.CHUMMARKUTTY, PULLORKUNNEL HOUSE, KABANIGIRI P.O, PADICHIRA AMSOM DESOM OF PULPALLY, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SHINOJ STEEPHEN, S/O.STEEPHEN, AGED 43 YEARS, KUNCHIRAKATTU HOUSE, MARAKKADAVU P.O, PADICHIRA VILLAGE, SULTHAN BATHERY, WAYANAD DISTRICT, PIN – 673579.** **BY ADVS. P.U.SHAILAJAN NIDHEESH T.P** ## **RESPONDENT/S:** **SHEEBA VARIKKAMAKKIL, AGED 36 YEARS, D/O.ABRAHAM, VARIKKAMAKKIL HOUSE, CHITTARIPARAMBA, ALANCHERY P.O, KANNUR DISTRICT, PIN – 670650.** 8 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 **BY ADVS. NARENDRA KUMAR M HARSHADEV M.** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 16.02.2023, ALONG WITH OP (FC).644/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 9 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner herein filed the original petitions, namely, O.P.Nos.358, 359, 360 and 361 of 2019 before the Family Court, Kalpetta. The respondent was the legally wedded wife of the petitioner. During subsistence of the marriage, the petitioner has executed four settlement deeds, namely, 2663/2018, 2533/2018, 3227/1/2018 and 3228/1/2018 of Sub Registry Office, Mananthavady, all in favour of the respondent. The petitioner alleging that on the mutual understanding to continue their cohabitation, he executed those settlement deeds, but subsequently the respondent resiled and initiated proceedings for judicial separation of their marriage. Thus, the said settlement deeds are products of fraud and are liable to be set aside. O.P.Nos.358, 359, 360 and 361 of 2019 were filed by the petitioner seeking to declare the respective settlement deeds null and void. The petitioner states that due to inadvertance and lack of diligence, the relief to declare the documents null and void 10 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 was claimed; whereas the relief should have been to set aside the said documents. In such circumstances, the petitioner filed petitions for amendment of all the four original petitions. The Family Court, Kalpetta considered the interlocutory applications, namely, I.A.No.6 of 2022 in O.P.No.358 of 2019, I.A.No.4 of 2022 in O.P.No.359 of 2019, I.A.No.4 of 2022 in O.P.No.360 of 2019 and I.A.No.4 of 2022 in O.P.No.361 of 2019, and dismissed as per the common order dated 20.10.2022. The petitioner challenges the said order in these Original Petitions filed under Article 227 of the Constitution of India. 2. On 22.11.2022 notice was ordered to be served on the respondent. Final disposal of the respective original petitions pending before the Family Court, Kalpetta was ordered to be deferred for a period of two weeks. Interim order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 11 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 4. The Family Court took the view that the amendment sought by the petitioner is one come within the mischief of the proviso to Order VI, Rule 17 of the Code and accordingly dismissed the applications. The law laid down by the Apex Court in **Samuel v. Gattu Mahesh [(2012) 2 SCC 300]** was placed reliance by the Family Court. In the said decision, the Apex Court enunciated the twin principles to decide whether or not an amendment shall be allowed, which are firstly, no injustice shall be done to the other side, and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. 5. The intention of the proposed amendment is to add the appropriate relief. The relief originally claimed is that the respective settlement deeds has to be declared null and void. The petitioner wants it to be changed as a decree setting aside the respective settlement deeds. It is the contention of the petitioner that the settlement deeds happened to be executed only because he acted upon the fraudulent 12 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 assurances made by the respondent. Necessary pleadings constituting such an ingredient are already there in the respective original petitions. By allowing such an amendment, it cannot be said that injustice would be caused to the respondent. When the petitioner takes a definite stand that the settlement deeds were obtained fraudulently, which is a vitiating circumstance for setting aside a document, permitting to alter the relief from a declaration to one of setting aside the document is certainly in the interest of justice. 6. In **L.I.C. of India v. Sanjeev Builders Private Ltd. & another [AIR 2022 SC 4256]** , the Apex Court laid down the parameters for allowing an amendment, which reads,- “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. 13 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed. (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, 14 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an 15 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. 7. The principles laid down by the Apex Court in the aforesaid decision favour allowing an amendment if the same is required for effective and proper adjudication of the controversy between the parties. It cannot be said that the amendment proposed in this case does not fall within the 16 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 prohibited items in clause (4) of the aforesaid guidelines. Of course, the trial was already commenced in the original petitions and that is one of the reasons cited by the Family Court to disallow the amendment. The proposed amendment does not contain any new facts. The reason for seeking such an amendment is obviously the inadvertence on the part of the petitioner. An inadvertence can be a result of lack of knowledge also. In that view of the matter, it is appropriate to say that the petitioner despite due diligence was not able to include such a relief in the original petitions. Therefore, we hold that the proposed amendment does not attract the bar under the proviso to Order VI, Rule 17 of the Code. Accordingly, we reverse the finding of the Family Court, Kalpetta. Leave for amendment is liable to be granted. These Original Petitions are therefore allowed. The petitions for amendment, I.A.No.6 of 2022 in O.P.No.358 of 2019, I.A.No.4 of 2022 in O.P.No.359 of 2019, I.A.No.4 of 2022 in O.P.No.360 of 2019 and I.A.No.4 of 2022 in O.P.No.361 of 2019, are allowed. The Family Court, Kalpetta will allow the petitioner to 17 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 carry out the amendment and proceed with the cases in accordance with law. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 18 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **APPENDIX OF OP (FC) 644/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SPECIAL POWER OF ATTORNEY DATED 20.11.2021 EXECUTED BY THE PETITIONER IN FAVOUR OF SHINOJ STEEPHEN** ## **EXHIBIT P2** **TRUE COPY OF THE PETITION IN O.P.NO.358 OF 2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA** **EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN O.P.NO.358/2019 BEFORE THE FAMILY COURT, KALPETTA** **EXHIBIT P4 TRUE COPY OF THE I.A.NO.6/2022 IN OP NO.358/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA** **EXHIBIT P5 THE TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A.NO.6/2022 IN OP NO.358/2019 BEFORE THE FAMILY COURT, KALPETTA EXHIBIT P6 TRUE COPY OF THE COMMON ORDER DATED 20.10.2022 I.A.NO.6/2022 IN O.P.NO.358/2019 AND CONNECTED CASES OF THE FAMILY COURT, KALPETTA** 19 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **APPENDIX OF OP (FC) 645/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SPECIAL POWER OF ATTORNEY DATED 20.11.2021 EXECUTED BY THE PETITIONER IN FAVOUR OF SHINOJ STEEPHEN** **EXHIBIT P2 TRUE COPY OF THE PETITION IN O.P.NO.360 OF 2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 19.4.2021 FILED BY THE RESPONDENT IN O.P.NO.360/2019 BEFORE THE FAMILY COURT, KALPETTA EXHIBIT P4 TRUE COPY OF THE I.A.NO.4/2022 IN OP NO.360/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA EXHIBIT P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 17.8.2022 FILED BY THE RESPONDENT IN I.A.NO.4/2022 IN OP NO.360/2019 BEFORE THE FAMILY COURT, KALPETTA EXHIBIT P6 TRUE COPY OF THE COMMON ORDER DATED 20.10.2022 IN I.A.NO.4/2022 IN O.P.NO.360/2019 AND CONNECTED CASES OF THE FAMILY COURT, KALPETTA** 20 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **APPENDIX OF OP (FC) 647/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SPECIAL POWER OF ATTORNEY DATED 20.11.2021 EXECUTED BY THE PETITIONER IN FAVOUR OF SHINOJ STEEPHEN** **EXHIBIT P2 TRUE COPY OF THE PETITION IN O.P.NO.361 OF 2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA** **EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 19.4.2021 FILED BY THE RESPONDENT IN O.P.NO.361/2019 BEFORE THE FAMILY COURT, KALPETTA** - **EXHIBIT P4 TRUE COPY OF THE I.A.NO.4/2022 IN OP NO.361/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA** - **EXHIBIT P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 17.8.2022 FILED BY THE RESPONDENT IN I.A.NO.4/2022 IN OP NO.361/2019 BEFORE THE FAMILY COURT, KALPETTA** - **EXHIBIT P6 TRUE COPY OF THE COMMON ORDER DATED 20.10.2022 IN I.A.NO.4/2022 IN O.P.NO.361/2019 AND CONNECTED CASES OF THE FAMILY COURT, KALPETTA** 21 O.P.(FC) Nos.644, 645, 647 and 648 of 2022 ## **APPENDIX OF OP (FC) 648/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SPECIAL POWER OF ATTORNEY DATED 20.11.2021 EXECUTED BY THE PETITIONER IN FAVOUR OF SHINOJ STEEPHEN** **EXHIBIT P2 TRUE COPY OF THE PETITION IN O.P.NO.359 OF 2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA DT NILL .08.2019** **EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED 19.4.2021 FILED BY THE RESPONDENT IN O.P.NO.359/2019 BEFORE THE FAMILY COURT, KALPETTA** - **EXHIBIT P4 TRUE COPY OF THE I.A.NO.4/2022 IN OP NO.359/2019 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KALPETTA DT NILL.08.2022** - **EXHIBIT P5 THE TRUE COPY OF THE COUNTER AFFIDAVIT DATED 17.8.2022 FILED BY THE RESPONDENT IN I.A.NO.4/2022 IN OP NO.359/2019 BEFORE THE FAMILY COURT, KALPETTA** - **EXHIBIT P6 TRUE COPY OF THE COMMON ORDER DATED 20.10.2022 IN I.A.NO.4/2022 IN O.P.NO.359/2019 AND CONNECTED CASES OF THE FAMILY COURT, KALPETTA**