Mariya Jasmine v. Yousaf and Muhammed

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938** ## **OP (FC).No. 558 of 2016 (R)** **---------------------------IN O.P.No.1287/2011 OF FAMILY COURT, MALAPPURAM** **PETITIONER:** **------------------------** **MARIYA JASMINE AGED 41 YEARS, D/O. MAYIN, THATTAYIN HOUSE, ANAKKAYAM CHECK POST, ANAKKAYAM AMSOM, DESOM, PRESENTLY RESIDING AT ULLATTIL HOUSE, KUTTIMUNDA, POOKATTUMANNA P O, CHUNGATHARA AMSOM, DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.K.RAKESH** ## **RESPONDENTS** **-----------------------** ## **1. YOUSAF** **AGED 36 YEARS, S/O.YAKOOB, EEENTHANKUZHIYAN HOUSE, ANAMARI, VAZHIKKADAVU P O, VAZHIKKADAVU AMSOM, DESOM, MALAPPURAM DISTRICT, PIN-673 576.** ## **2. MUHAMMED** **AGED 55 YEARS, S/O.ULLATTIL IBRAHIM, ULLATTIL HOUSE, KUTTIMUNDA, POOKATTUMANNA P O, CHUNGATHARA AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN-679 334.** **R1 BY ADV. SRI.T.SIVADASAN R1 BY ADV. SRI.SAJU.S.A R2 BY ADV. SRI.C.DILIP** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP (FC).No. 558 of 2016 (R)** **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN OP 1287/11 OF THE FAMILY COURT, MALAPPURAM DTD 19/12/2011.** **EXHIBIT P2 TRUE COPY OF THE PLAINT IN OS NO 165/2011 OF THE SUB COURT, MANJERI DTD 15/6/2011.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DTD 26/2/2013 IN FAO NO 14/2013 OF THIS HONBLE COURT.** **EXHIBIT P4 TRUE COPY OF THE ORDER DTD 25/8/2016 IN IA NO 1271/2016 IN OP 1287/2011 OF THE FAMILY COURT, MALAPPURAM.** ## **RESPONDENTS' EXHIBITS: NIL** **-----------------------** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN & DAMA SESHADRI NAIDU, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O.P.(F.C.)No.558 of 2016** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26[th] day of October, 2016** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The petitioner is the wife of the second respondent. The marriage between them was solemnized on 25.5.1991. In that marriage, three children by name Muhammed Afsal, Ajmal and Ansila were born. Later the parties fell out. While the parties were residing together, the second respondent assigned 10 cents of land with a residential building therein to the first respondent herein as per sale deed dated 9.5.2011 registered as document No.2553 of 2011 of SRO, Edakkara. Alleging that after the transfer in his favour, the petitioner herein broke open the lock of the house situate in that property and trespassed into that building which according to the first respondent was delivered over to him after the sale in his favour and was in his possession, the first respondent filed O.S.No.165 of 2011 in the Court of the Subordinate Judge of Manjeri on 15.6.2011 praying for a decree allowing him to recover possession of the plaint schedule property from the petitioner on the strength of title. 2. A few months later, the petitioner herein filed O.P.No.1287 of 2011 before the Family Court, Malappuram contending that the plaint ## **O.P.(F.C.)No.558 of 2016** ## **-:2:-** schedule property in O.S.No.165 of 2011 was purchased by her husband with the funds made available by her and praying for a declaration that the said property belongs to her. She thereafter objected to the maintainability of the suit filed by the first respondent before the Sub Court, Manjeri. The Sub Court thereupon passed an order on 14.11.2012 directing the plaint in O.S.No.165 of 2011 to be returned. The first respondent challenged that order by filing F.A.O.No.14 of 2013 in this court. After notice to and affording the petitioner as well as the second respondent herein an opportunity of being heard, a Division Bench of this court allowed F.A.O.No.14 of 2013 and held that O.S.No.165 of 2011 filed by the first respondent is maintainable in the Sub Court. The Division Bench accordingly directed the Sub Court to take back the plaint and proceed with it in accordance with law. The said judgment has attained finality. 3. Alleging that O.P.No.1287 of 2011 is liable to be stayed under section 10 of the Code of Civil Procedure, the first respondent herein filed I.A.No.1271 of 2016 before the Family Court, Malappuram praying for an order staying further proceedings in O.P.No.1287 of 2011. He contended that the matter in issue in O.P.No.1287 of 2011 is directly and substantially the issue in the previously instituted case namely O.S.No.165 of 2011 on the file of the Sub Court, Manjeri and therefore, the trial of O.P.No.1287 of 2011 is liable to be stayed under section 10 of the Code of Civil Procedure. The petitioner opposed the ## **O.P.(F.C.)No.558 of 2016** ## **-:3:-** application and contended that the jurisdiction exercised by the Family Court is different and therefore, O.P.No.1287 of 2011 filed by her is not liable to be stayed. After considering the rival contentions, the Family Court, Malappuram passed Ext.P4 order on 25.8.2016 on I.A.No.1271 of 2016 in O.P.No.1287 of 2011 whereby it stayed the proceedings in O.P.No.1287 of 2011 until the final disposal of O.S.No.165 of 2011 on the file of the Sub Court, Manjeri. The said order is under challenge in this original petition filed under Article 227 of the Constitution of India. 4. We heard Sri.K.Rakesh, learned counsel appearing for the petitioner and Sri.T.Sivadasan, learned counsel who appeared on behalf of the first respondent. Learned counsel appearing for the petitioner submitted that in order to invoke section 10 of the Code of Civil Procedure it is not enough that the subject matter of the two proceedings is one and the same. Learned counsel contended that unless the cause of action is also the same, an application under section 10 is not maintainable. Learned counsel also placed reliance on the decision of the Apex Court in **National Institute of Mental Health and Neuro Sciences v. Parameshwara** (AIR 2005 SC 242) in support of the said contention. Referring to section 14 of the Family Courts Act, 1984, learned counsel contended that strict rules of evidence contained in the Evidence Act do not apply to proceedings before the Family Court and therefore, the nature of jurisdiction being ## **O.P.(F.C.)No.558 of 2016** ## **-:4:-** exercised by the Family Court being different, section 10 cannot be invoked to stay the trial of O.P.No.1287 of 2011. Learned counsel however did not dispute the fact that the subject matter of the two proceedings is one and the same namely a parcel of land, 10 cents in extent, with the residential building therein. 5. Per contra, Sri.T.Sivadasan, learned counsel who appeared on behalf of the first respondent submitted that the reference to the schedule to O.P.No.1287 of 2011 would show that the subject matter of that petition is the plaint schedule property in O.S.No.165 of 2011. Learned counsel also contended that as Ext.P3 judgment of this court, which binds the petitioner, has attained finality and it was after hearing the petitioner that this court held in Ext.P3 judgment that O.S.No.165 of 2011 filed by the first respondent before the Sub Court, Manjeri for recovery of possession of the very same parcel of land on the strength of title is maintainable, the petitioner cannot thereafter institute a petition in the Family Court laying claim to the very same property. Learned counsel contended that the petitioner ought to have, in the light of Ext.P3 judgment of this court, raised a counter claim in that suit and put forward her contentions in the counter claim. Learned counsel also submitted that notwithstanding the fact that this court has in Ext.P3 judgment held that O.S.No.165 of 2011 is maintainable in the Sub Court, the petitioner herein filed Tr.P.(C)No.207 of 2013 in this court with a prayer that O.S.No.165 of 2011 may be transferred to ## **O.P.(F.C.)No.558 of 2016** ## **-:5:-** Family Court, Malappuram, that the said petition was heard and dismissed by one of us (P.N.Ravindran, J.) by order passed on 17.6.2013, that later she again filed Tr.P.(C)No.302 of 2013 which was also dismissed by a learned single Judge of this court by order passed on 12.8.2013, that challenging that order she filed Transfer Appeal No.5 of 2013 before a Division Bench of this court and it was dismissed by judgment delivered on 28.1.2014. Learned counsel submitted that it was after she failed in her attempts to get the suit transferred to Family Court, Malappuram that she has come forward with the instant original petition challenging the order passed by the Family Court under section 10 of the Code of Civil Procedure staying further proceedings in O.P.No.1287 of 2011 for the purpose of vexing and harassing the first respondent. Learned counsel submitted that O.S.No.165 of 2011 was decreed after trial, in which the first respondent did not adduce any evidence, by judgment delivered on 4.4.2014, that she carried the matter in appeal by filing A.S.No.66 of 2014 on the file of the District Court, Manjeri, that by judgment delivered on 18.11.2015 the decree passed by the trial court on 4.4.2014 was set aside subject to payment of costs and the petitioner was afforded an opportunity to lead defence evidence, that even thereafter she did not adduce any evidence or participate in the trial and thereupon an exparte decree was passed on 18.11.2015. Learned counsel also submitted that on application filed by the petitioner under ## **O.P.(F.C.)No.558 of 2016** ## **-:6:-** Order X rule 13 of the Code of Civil Procedure, that the exparte decree was also set aside and that is the reason why O.S.No.165 of 2011 is even now pending. Learned counsel also submitted that after the exparte decree was set aside, O.S.No.165 of 2011 stood posted for trial on 18.10.2016 but on the previous day namely 17.10.2016, she filed O.P.(C)No.2528 of 2016 in this court with a prayer that the trial of O.S.No.165 of 2011 may be kept in abeyance till O.P.No.1287 of 2011 is finally disposed of and with a further prayer that Sub Court, Manjeri may be directed to adjourn the trial of O.S.No.165 of 2011 so as to enable her to challenge the order impugned in the instant original petition. Learned counsel submitted that on account of the order of stay passed by this court in O.P.(C)No.2528 of 2016, the trial of the suit did not take place on 18.10.2016. Learned counsel also submitted that the fact that the petitioner has filed O.P.(C)No.2528 of 2016 in this court with the aforesaid prayers has not been mentioned in the instant original petition and therefore, the instant original petition is liable to be dismissed for non-disclosure of material facts. Learned counsel further submitted that it is not the law in order to invoke section 10 of the Code of Civil Procedure the cause of action for the two suits should be one and the same and that it is enough that the subject matter is one and the same. 6. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through ## **O.P.(F.C.)No.558 of 2016** ## **-:7:-** the pleadings and the materials on record. A reading of Ext.P2 plaint in O.S.No.165 of 2011 discloses that the petitioner and her minor children are defendants 1 to 4 therein. Her husband, the second respondent herein is the fifth defendant in that suit. The subject matter of that suit is a parcel of land, 10 cents in extent, with the residential building therein. It admittedly belonged to the second respondent, the petitioner's husband. He had admittedly conveyed that property to the first respondent herein as per a sale deed dated 9.5.2011 registered as document No.2553 of 2011 of SRO, Edakkara. A reading of Ext.P1 petition in O.P.No.1287 of 2011 discloses that the subject matter of that petition is also the very same property. The case set out by the petitioner in the written statement filed by her in O.S.No.165 of 2011 is that it was with the funds made available by her and her family members that her husband, the fifth defendant in the suit, purchased the plaint schedule property. She has in paragraph 7 of the written statement filed by her on 26.9.2011 in the suit contended that she and her minor children alone are therefore entitled to the plaint schedule property. The same is the contention raised in O.P.No.1287 of 2011. It is thus evident that the subject matter of the two suits is one and the same. Then the only question that arises for consideration is whether in order to attract section 10 of the Code of Civil Procedure, it is necessary that the cause of action for the two proceedings should be one and the same. Though learned counsel for ## **O.P.(F.C.)No.558 of 2016** ## **-:8:-** the petitioner relies on the decision of the Apex Court in **National Institute of Mental Health and Neuro Sciences v. Parameshwara** (supra) more particularly the observations in paragraph 9 of the said judgment in support of his contention, after going through the said judgment we are not persuaded to accept the said contention. All that the Apex Court has in the said judgment held is that apart from the fact that the subject matter of the two proceedings namely one before the civil court and the other before the labour court is entirely different in this court, the causes of action are also different. The cause of action in the suit filed in that case by the employer for recovery of the loss sustained by it due to shortage of drugs is the loss sustained by it. In the proceedings before the High Court, the challenge was to the award passed by the labour court directing reinstatement of the employee who caused the shortage of drugs. Necessarily therefore the causes of action will be different. The Apex Court has not in the said decision held that in order to attract section 10 of the Code of Civil Procedure, the cause of action for the two proceedings should be one and the same. The Apex Court held that section 10 can have no application to the facts of the said case for the reason that section 10 can apply only to proceedings instituted in a civil court and not to proceedings before a labour court. In our considered opinion, in order to invoke section 10, all that is required to be ascertained is whether the subject matter of the two suits is one ## **O.P.(F.C.)No.558 of 2016** ## **-:9:-** and the same and the parties are also litigating under the same title. The party invoking section 10 need not in our opinion further show that the cause of action for the two suits is one and the same. The objection raised by the petitioner was in our opinion rightly overruled by the court below. Such being the situation, it cannot be said that the challenge to Ext.P4 order passed by the Family Court, Malappuram staying further proceedings in O.P.No.1287 of 2011 under section 10 suffers from any illegality or infirmity. The challenge to Ext.P4 must therefore fail. We accordingly hold that there is no merit in the instant original petition. It fails and is dismissed. No costs. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- **DAMA SESHADRI NAIDU JUDGE** ## **vpv**