Leelamma Joseph v. Chithira Johnson

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` MONDAY, THE 30[TH] DAY OF JANUARY 2023/10TH MAGHA, 1944 ``` ``` OP (FC) NO. 15 OF 2022 ``` ``` AGAINST THE ORDER DATED 21.12.2021 IN I.A.NO.3797 OF 2019 IN O.P.NO.897 OF 2019 OF THE FAMILY COURT, ERNAKULAM ``` ## **`PETITIONER/ADDITIONAL 2ND RESPONDENT:`** ``` LEELAMMA JOSEPH, AGED 69 YEARS W/O.LATE JOSE MATHEW CHOLENKERYIL, BETHEL 42/2150B, PROVIDENCE ROAD, KACHERIPADY, ERNAKULAM - 682 031. ``` ``` BY ADVS.PHILIP T.VARGHESE THOMAS T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA K.R.MONISHA SHRUTHI SARA JACOB ``` ## **`RESPONDENT/PETITIONER:`** ``` CHITHIRA JOHNSON, D/O.JOHNSON, JOHNSON'S VILLA, NEYYASSERY P.O., THODUPUZHA - 685 581. ``` ``` BY ADVS.R.S.REJITHA P.T.MARY ACHUTHAN K. ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(FC)No.15 of 2022 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner is the additional respondent in O.P.No.897 of 2019 (Ext.P1), which is an original petition filed by the respondent herein before the Family Court, Ernakulam against one Febin Jose, who is the husband of the respondent and son of the petitioner, seeking a decree for realization of money and recovery of gold ornaments. In the said original petition, the respondent filed I.A.No.3797 of 2019 (Ext.P2) seeking an order to implead the petitioner herein as an additional respondent. The said interlocutory application was accompanied by I.A.No.3798 of 2019 (Ext.P3) seeking attachment of the property of the petitioner. On receipt of notice, the petitioner filed counter affidavits dated 12.11.2021 (Exts.P4 and P5) in those interlocutory applications. The petitioner’s son Febin Jose filed an objection dated 12.11.2021 (Ext.P6) in O.P.No.897 of 2019. The petitioner has filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P7 -3- ## O.P.(FC)No.15 of 2022 order dated 21.12.2021 of the Family Court in I.A.No.3797 of 2019, whereby Ext.P2 interlocutory application filed by the respondent herein to implead the petitioner herein as an additional respondent in O.P.No.897 of 2019 stands allowed. Ext.P7 order reads thus; “Proposed Addl.R2 already appeared. Counter filed. Heard both sides. Petition is allowed. Addl.R2 impleaded.” 2. On 11.01.2022, when this original petition came up for admission, this Court issued notice before admission to the respondent by speed post. The petitioner was also permitted to serve notice on the respondent through her counsel before the Family Court. 3. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. 4. The issue that arises for consideration in this original petition is as to whether Ext.P7 order of the Family Court, whereby Ext.P2 interlocutory application stands allowed, can be sustained in law. 5. The learned counsel for the petitioner and also the -4- O.P.(FC)No.15 of 2022 learned counsel for the respondent have raised various contentions touching the merits of the matter, which is the subject matter of O.P.No.897 of 2019. We do not propose to consider those aspects, since the exercise that has to be undertaken in this original petition is to consider the legality or otherwise of Ext.P7 order. ## 6. In **Breen v. Amalgamated Engineering Union** **[1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v.** **Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. ## 7. In **Commissioner of Police, Bombay v.** **Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of -5- O.P.(FC)No.15 of 2022 explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in **Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405]** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 8. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and** -6- O.P.(FC)No.15 of 2022 **Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi - judicial performance. 9. The object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The recording of reasons by an administrative or quasi-judicial authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of -7- O.P.(FC)No.15 of 2022 fairness in the process of decisions making. It would apply equally to all decisions made by such authority and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. At the same time, it is not the requirement that, the reasons should be as elaborate as in the decision of a Court of law. What is necessary is that, the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. Hence, it is an essential requirement of the rule of law that, some reasons, at least in brief, must be disclosed in the order passed by an administrative or quasi-judicial authority. 10. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, Ext.P7 order passed by the Family Court, which is a cryptic order, which does not disclose the reason for allowing Ext.P2 interlocutory application, cannot be sustained in law. In such circumstances, this original petition is allowed by setting aside Ext.P7 order and by directing the Family -8- ## O.P.(FC)No.15 of 2022 Court to pass fresh orders on Ext.P2 interlocutory application, taking note of the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate, within a period of three weeks from the date of production of a certified copy of this judgment. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/31/1 -9- O.P.(FC)No.15 of 2022 ## **`APPENDIX OF OP (FC) 15/2022`** ``` PETITIONER EXHIBITS ``` - **`Exhibit P1`** ``` TRUE COPY OF THE PETITION FILED AS OP NO.897/2019 IN THE FAMILY COURT, ERNAKULAM DATED NIL. ``` - **`Exhibit P2`** ``` TRUE COPY OF IA NO.3797/2019 IN OP NO.897/2019 OF THE FAMILY COURT, ERNAKULAM DATED NIL. ``` - **`Exhibit P3`** - **`TRUE COPY OF I.A.NO.3798/2019 IN O.P.NO.897/2019 OF THE FAMILY COURT, ERNAKULAM DATED 02/07/2019.`** ``` Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN I.A.NO.3797/2019 IN OP NO.897/2019 OF THE FAMILY COURT, ERNAKULAM DATED 12/11/2021. ``` - **`Exhibit P5`** - **`TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A.NO.3798/2019 IN O.P.NO.897/2019 OF THE FAMILY COURT, ERNAKULAM DATED 12/11/2021.`** - **`Exhibit P6 TRUE COPY OF THE OBJECTION FILED BY MR.FEBIN JOSE O.P.NO.897/2019 OF THE FAMILY COURT, ERNAKULAM DATED 12/11/2021.`** - **`Exhibit P7`** ``` TRUE COPY OF THE ORDER OF FAMILY COURT, ERNAKULAM IN I.A.NO.3797/2019 IN O.P.NO.897/2019 DATED 21/12/2021. ```