Lakshmy Surendan and PETITIONER'S MOTHER v. Surendan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934 OP (FC).No. 3813 of 2012 (R) ---------------------------- IA.NO.480/2012 IN OP.142/2012 of FAMILY COURT, IRINJALAKUDA PETITIONER(S): ------------- LAKSHMY SURENDRAN, AGED 27 YEARS W/O.KOORKKANCHERY PANGATT RAKESH & D/O.THADATHIL LALITHAMBIKA MATHALA VILLAGE, KODUNGALLUR TALUK. BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S): -------------- SURENDRAN, AGED 64 YEARS SON OF PAMBIKKATTIL NARAYANAN, VELLANCHIRA DESOM AALOOR VILLAGE, MUKUNDAPURAM TALUK, 680683. R1 BY ADV. SRI.T.N.MANOJ THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------O.P.(FC) No. 3813 of 2012 ------------------------------------------------------------Dated this the 19[th] day of December, 2012 ## **JUDGMENT** ## **Babu Mathew P. Joseph, J.** This Original Petition, filed under Article 227 of the Constitution, is directed against Ext.P10 order passed by the Family Court. The petitioner is the daughter of the respondent. By the impugned order, the court below has dismissed I.A.No.480 of 2012 filed by the petitioner for amending Ext.P1 Original Petition. The amendment proposed was to incorporate the claim for past maintenance. Aggrieved by the order so passed by the court below, the petitioner has preferred this Original Petition. 2. Heard Smt.Sumathy Dandapany, the learned Senior Counsel for the petitioner, and Shri.T.N.Manoj, the learned 2 [O.P.(FC) No.3813/2012] ## counsel for the respondent. 3. The petitioner's mother is the first petitioner and the petitioner is the second petitioner in Ext.P1 Original Petition dated 2.2.2008 filed in the Family Court claiming maintenance and for other reliefs. I.A.No.511 of 2008 dated 2.2.2008 claiming Rs.2,16,000/- towards past maintenance for three years and I.A.No.510 of 2008 dated 2.2.2008 for attachment of immovable properties of the respondent for securing and realising the said past maintenance were also filed along with Ext.P1. I.A.No.510 of 2008 is Ext.P4. Ext.P7 dated 14.2.2008 is produced as the application claiming past maintenance of Rs.2,16,000/-. The records show that this is a mistake and the real application filed for that purpose is I.A. No.511 of 2008 which is dated 2.2.2008. Ext.P1 Original Petition, I.A.No.511 of 2008 and Ext.P4 are dated 2.2.2008 and the records show that all of them were filed on 4.2.2008 in the Family Court. The petitioner got married on 30.8.2009. Her mother expired on 27.10.2009. 3 [O.P.(FC) No.3813/2012] 4. The petitioner filed Ext.P9, I.A.No.480 of 2012, in the court below on 16.10.2012 mainly for the purpose of amending the Original Petition incorporating the claim for past maintenance. The reason stated in the supporting affidavit is that the petitioner happened to omit to incorporate that claim in the Original Petition. The respondent has opposed that application by filing his objections. Learned Judge of the Family Court dismissed I.A.No.480 of 2012 by Ext.P10 order mainly for the reason that the claim sought to be incorporated was already barred by limitation. 5. Learned Senior Counsel appearing for the petitioner submitted that the claim for past maintenance had been raised along with the Original Petition and the respondent had notice of the same. But, the claim for past maintenance could not be incorporated in the Original Petition itself due to an omission. Therefore, the amendment sought for by the petitioner was not for introducing a new claim in the Original Petition. But, it was intended for incorporating a claim in the Original Petition which 4 [O.P.(FC) No.3813/2012] was already raised along with that Original Petition. Hence, the claim sought to be incorporated by way of amendment in the Original Petition was not at all barred by limitation, the learned Senior Counsel submitted. 6. Learned counsel for the respondent, on the other hand, contended that the claim now sought to be introduced in the Original Petition by way of an amendment is a new claim which was, in fact, barred by limitation. Therefore, if the amendment is allowed, it will enable the petitioner to get over the bar of limitation, a valuable right accrued to the respondent by passage of time. Hence, he prays for dismissing this Original Petition. 7. The petitioner along with her mother filed the Original Petition claiming maintenance and for other reliefs. In that Original Petition, past maintenance has not been specifically claimed. But, a separate application claiming past maintenance of Rs.2,16,000/- has been filed along with the Original Petition. Also filed another application for attachment of the properties of 5 [O.P.(FC) No.3813/2012] the respondent for securing and realising the said past maintenance. The petitioners had thus raised their claim for past maintenance along with their claim for future maintenance and not at a later point of time. Therefore, the argument that the petitioners have not raised their claim for past maintenance in the Original Petition and raised that claim only in the amendment application and hence the claim for past maintenance was barred by limitation is only hypertechnical. The records of the case would substantiate the fact that the respondent was fully aware of the petitioners' claim for past maintenance from the very beginning. In fact, disputing the claim for past maintenance raised by the petitioners, the respondent has filed his objections in the court below in I.A.No.510 of 2008 as early as on 23.4.2008. Therefore, the respondent cannot be heard to contend that prejudice would be caused to him by way of taking away a right accrued to him by passage of time. It is true that I.A.No.480 of 2012 was filed by the petitioner only on 16.10.2012 i.e., after a period of 4 years and 8 months. Necessarily, if the amendment 6 [O.P.(FC) No.3813/2012] sought for is allowed and the claim for past maintenance is incorporated Ext.P1 Original Petition, the respondent has to defend that claim which may cause expenses and inconvenience to him. But, those matters shall not stand in the way of granting the amendment if the the expenses and inconvenience which may be caused can be compensated by way of awarding costs. 8. The right to claim maintenance, past or future, originates from social welfare legislations. Hypertechnical reasons cannot stand in the way of granting reliefs to those persons who are entitled to the rights guaranteed under the benevolent provisions of such welfare legislations. The courts are expected to adopt a liberal approach in respect of the claims of the beneficiaries under those welfare legislations. In the case on hand, if the petitioners did not raise at all their claim for past maintenance at the time of filing the Original Petition, the situation to be considered by the court would have been a different one. Because, when the claim for past maintenance is raised by the petitioners for the first time only in the amendment 7 [O.P.(FC) No.3813/2012] application after 4 years and 8 months of filing the Original Petition, that claim will be one already barred by limitation. In that case, if the claim for past maintenance is introduced by way of amendment in the Original Petition, it would be tantamount to depriving a right under the Law of Limitation accrued to the respondent by passage of time. But, the factual situation is different in this case. The claim for past maintenance had been raised by the petitioners at the time of filing the Original Petition itself by filing a separate application. The respondent was aware of that fact from the very beginning and he has disputed the same in his objections filed in I.A.No.510 of 2008. Therefore, there was no occasion for the respondent to be taken aback by the amendment application filed by the petitioner for incorporating the claim for past maintenance which was already raised in the application filed by the petitioners along with the Original Petition. 9. The Honourable Supreme Court in **Smt. Ganga Bai** v. **Vijay Kumar and Others** [(1974) 2 SCC 393] held that the power to allow an amendment is undoubtedly wide and may at any 8 [O.P.(FC) No.3813/2012] stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. The Honourable Supreme Court in **Vineet Kuma** r v. **Mangal Sain** (AIR 1985 SC 817) held as follows: “16. Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation......” Therefore, if the amendment sought for does not constitute a new cause of action or raise a new case, but only amounts to adding to the facts already on record, the amendment sought for can be allowed even after the statutory period of limitation. In the case on hand, the amendment proposed was to incorporate the claim for past maintenance in Ext.P1 Original Petition. Such a claim sought to be incorporated in the Original Petition had already 9 [O.P.(FC) No.3813/2012] been raised in so many words in I.A.No.511 of 2008 and in Ext.P4 application filed by the petitioners along with Ext.P1 Original Petition. Therefore, the facts sought to be incorporated in the Original Petition by way of amendment were the facts already on record. In other words, the amendment sought for does not constitute a new cause of action or raise a new case. Those facts sought to be incorporated in the Original Petition were already on record. Therefore, we are of the considered view that the petitioner is entitled to amend the Original Petition as sought in Ext.P9 amendment application. We quash Ext.P10 order passed by the court below and allow Ext.P9 application for amending the Original Petition but, in the circumstances, on condition that the petitioner shall pay Rs.5000/- (Rupees five thousand only) as costs to the respondent through his learned counsel Shri.T.N.Manoj within a period of three weeks from today. 10. Learned counsel for the respondent submitted that even in the event of allowing Ext.P9 amendment application, the petitioner would not be entitled to claim the whole amount of 10 [O.P.(FC) No.3813/2012] Rs.2,16,000/- as past maintenance owing to the facts that the petitioner got married on 30.8.2009 and her mother expired on 27.10.2009. We are not going into the merits of those contentions. It is for the respondent to raise such contentions before the Family Court and the Family Court has to consider such contentions on merits in accordance with law. This O.P.(FC) is allowed as above. **PIUS C. KURIAKOSE, JUDGE.** **BABU MATHEW P. JOSEPH, JUDGE.** krs.