Minimol and Satheesh v. Chikku Sneha Sebastian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 20TH DAY OF JANUARY 2016/30TH POUSHA, 1937 OP (FC).No. 15 of 2016 (R) --------------------------- AGAINST THE COMMON ORDER IN I.A. NO.465/2015, I.A. NO.1033/2015, I.A. NO.1034/2015 IN O.P.NO.973/2013 ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. ## PETITIONERS/RESPONDENTS 2 AND 3 IN THE O.P: ---------------------------------------- 1. MINIMOL, W/O. SATHEESH, THAIPARAMBIL, AMALA BHAVAN RUBBER BOARD P.O., PUTHUPPALLY, KOTTAYAM REPRESENTED BY HER POWER OF ATTORNEY HOLDER ANIL KUMAR S/O. KUMARAN, PANACHAVILAYIL, KUMARAMANAGALAM VEEDU ARUNOOTTIMANGALAMMURI, VETTIYAR VILLAGE MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 2. SATHEESH S/O. KUMARAN, PANACHAVILAYIL, KUMARAMANAGALAM VEEDU ARUNOOTTIMANGALAM MURI, VETTIYAR VILLAGE MAVELIKKARA TALUK, ALAPPUZHA DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ANIL KUMAR S/O. KUMARAN, PANACHAVILAYIL, KUMARAMANAGALAM VEEDU ARUNOOTTIMANGALAM MURI, VETTIYAR VILLAGE MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. BY ADVS.SRI.B.MOHANLAL SRI.BHARGAVAN ## RESPONDENT/PETITIONER IN O.P: ---------------------------- CHIKKU SNEHA SEBASTIAN D/O. SEBASTIAN, KOLLAPPALLY HOUSE, THOTTACKAD UMBIDI P.O., KOTTAYAM - 686 539. R1 BY ADVS. SMT.R.LEELA SMT.MANJU PAUL SMT.C.A.LINCY SMT.P.T.THAJMINA THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON 20.01.2016 DELIVERED THE FOLLOWING: OP (FC).No. 15 of 2016 (R) ---------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS -------------------- P1 - THE TRUECOPY OF THE PLAINT OP NO. 973/2013 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P2 - THE TRUE COPY OF THE WRITTEN STATEMENT IN OP O. 973/2013 FILED BY THE 1ST PETITIONER BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P3 - THE TRUE COPY OF THE IA NO. 1033/2015 IN OP NO. 973/2013 DT. 12.6.2015 UNDER ORDE VI, RULE 17 OF THE C.P.C FILED BY THE PETITIONERS THROUGH THEIR POWER OF ATTORNEY HOLDER BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P4 - THE TRUE COPY OF THE IA NO. 1034/2015 IN OP NO. 973/2013 DT. 12.6.2015 UNDER ORDE XVIII RULE 17 OF THE C.P.C FILED BY THE PETITIONERS THROUGH THEIR POWER OF ATTORNEY HOLDER BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P5 - THE TRUE COPY OF THE IA NO. 465/2015 IN OP NO. 973/2013 DT. 16.3.2015 UNDER ORDER XVI RULE-7 AND 151 OF THE C.P.C FILED BY THE PETITIONERS THROUGH THEIR POWER OF ATTORNEY HOLDER BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P6 - THE TRUE COPY OF THE OBJECTION IN IA NO. 1033/2015 IN OP NO. 973/2013 DT. 19.11.2015 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P7 - THE TRUCOPY OF THE OBJECTION IN IA NO. 1034/2015 IN OP NO. 973/2013 DT. 02.9.2015 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P8 - THE TRUE COPY OF THE OBJECTION IN IA NO. 465/2015 IN OP NO. 973/2013 DT. 11.6.2015 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. P9 - THE TRUE COPY OF THE COMMON ORDER DT. 15.12.2015 IN IA NO. 465/2015, IA NO. 1033/2015, IA NO 1034/2015 IN OP NO. 973/2013 OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR. RESPONDENT'S EXHIBITS: NIL -------------------- //TRUE COPY// P.A. TO JUDGE smv ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** ----------------------------------------------- ## **O.P.(FC) No.15 of 2016** ## **----------------------------------------------Dated this the 20[th ] day of January, 2016.** ## **JUDGMENT** ## Shaji P. Chaly, J. The captioned Original Petition is filed by respondents 2 and 3 in O.P.No.973 of 2013 on the files of the Family Court, Kottayam at Ettumanoor. Respondents 2 and 3 filed I.A. Nos.465/2015, 1033/2015 and 1034/2015 in O.P. No.973 of 2013 seeking direction to the respondent herein to produce the album and CD of the marriage between the 1[st] respondent in the Original Petition and the respondent herein, seeking amendment of the written statement filed by the petitioners herein and for recalling and cross-examining the respondent herein respectively. The Family Court after taking into account the rival submissions made in the interlocutory applications dismissed all the applications by a common order and it is thus challenging the orders of the Family Court, this Original Petition is filed under Article 227 of the Constitution of India. 2. Brief facts for the disposal of the Original Petition are as follows: 2 O.P.(FC) No.15 of 2016 3. The respondent filed O.P. No.973/2013 against the petitioners herein and Shine Christopher and Thankachan who are arrayed as R1 and R4 respectively before the Family Court, praying inter alia for recovery of gold ornaments and money and other allied reliefs. Along with the Original Petition, the respondent herein filed application for attachment before judgment which was allowed by the Family Court by an ad ex parte interim order. The petitioners entered appearance and filed objection to the interlocutory applications seeking attachment and after considering the rival contentions, Family Court made the interim order of attachment absolute. 4. Thereafter the petitioners herein filed Ext.P2 written statement resisting the contentions in the Original Petition, through a Power of Attorney Holder and sought for dismissal of the same. The respondents 1 and 4 in the Original Petition were declared ex parte. Thereafter Family Court framed issues and posted the case for evidence though an Advocate Commissioner. In the trial, respondent herein was examined as PW1. Thereafter, the petitioners herein contending that, the Power of Attorney Holder of the petitioners during evidence realised that 3 O.P.(FC) No.15 of 2016 certain mistakes have crept in the written statement filed and the factual transaction and incidents of the marriage ceremony and subsequent events could not be included in Ext.P2 written statement, Exts.P3 to P5 interlocutory applications mentioned above were filed. The respondent herein filed objection to Exts.P3 to P5 applications mainly contending that the applications are filed only to protract the proceedings. Any how the Family Court after evaluating the facts and circumstances and the law involved in the subject matter concluded that, the applications filed by the petitioners have no merit and bonafides and thereupon the same were dismissed. It is thus challenging the orders in the above interlocutory applications this Original Petition is filed. 5. The thrust of the contention advanced by the learned counsel for the petitioners is that, production of the album and CD of the wedding of the respondent herein and the 1[st] respondent in the Original Petition is required in order to prove that the respondent herein did not have the quantity of gold ornaments that is claimed by her in the Original Petition. It is further contended by the learned counsel that, the respondent 4 O.P.(FC) No.15 of 2016 did not reside in the house of the 1[st] respondent in the original petition after the marriage and therefore, the gold ornaments were kept in the residence of the respondent herself and if the CD is produced before the court, the house where the respondent and her husband stayed after the marriage will be revealed. It is also contended by the learned counsel that the written statement is filed through a Power of Attorney Holder who was not well versed with the factual circumstances which led to non-inclusion of proper pleadings in the objection with respect to vital and material matters. Therefore, the counsel contends that if the CD is directed to be produced that will be a vital piece of evidence to establish that the respondent and the 1[st] respondent in the original petition after marriage were staying in the house of the respondent, which will in turn enable the petitioners to prove that they are not responsible for returning the gold ornaments of the respondent herein. 6. The further contention advanced by the learned counsel for the petitioner is that during cross-examination of the respondent, she has deposed that she is prepared to produce the photo album which will enable the court to ascertain the quantity O.P.(FC) No.15 of 2016 5 of gold ornaments worn by her at the time of marriage. 7. The Family Court after evaluating the contentions put forth in the petition filed by the petitioners and the objection filed by the respondent has arrived at a conclusion that the petitioners herein have produced the album from which the quantity and the nature of gold ornaments could be identified by verifying the photographs contained in the said album. It was also found by the Family Court that the respondent during crossexamination has agreed to produce the album in a different context namely the identification of certain persons seen in the photographs contained in the album produced by the petitioners and that the respondent has never deposed in the crossexamination with respect to the production of album concerning identification of the gold ornaments worn by her at the time of marriage. That apart the Family Court has also taken note of the fact that the respondent has deposed that she has produced her wedding photographs cut and removed from her album to prove the ornaments worn by her and that the same was marked as Ext.A2 series during her examination. Therefore, the photographs produced by her will clearly show the ornaments 6 O.P.(FC) No.15 of 2016 worn by her at the time of marriage and in that circumstances no further photographs are necessary to verify the nature and quantity of the ornaments worn by her. That apart the Family Court has also taken note of the fact situation on the basis of the deposition of the respondent that no purpose would be served by producing the album by the respondent since she had already cut and removed the photographs to produce the same before the court and therefore, the album is incomplete in all respects and the same in not in a presentable condition. It was after taking into account the totality of the circumstances the Family Court has found that there is no requirement for directing the respondent to produce the album and the CD before the court in order to proceed with further evidence in the matter. Family Court has also taken note of the fact that it took about 8 days to complete the examination of PW1. That apart it was also found that the wedding album from the side of petitioners was already produced before the court and no further photographs are required in the evidence with regard to the identification of nature and quantity of gold ornaments. On consideration of the facts and circumstances, we are of the considered opinion that O.P.(FC) No.15 of 2016 7 there are no legal infirmities existing in the order of the Family Court in the said I.A. 8. So far as IA No.1033 of 2015 is concerned, the amendment was sought for by the petitioners to the effect that on 30.7.2012, after the marriage, the respondent herein and the 1[st] respondent in the original petition have stayed in the residence of the petitioners after undergoing certain ceremonies in the house of the respondent. That apart on 14.8.2012 the 1[st] petitioner herein was hospitalised and the respondent herein and the 1[st] respondent in the Original Petition visited the 1[st] petitioner in the hospital and thereafter they returned to the house of the respondent on 15.8.2012. On 16.8.2012 the 1[st] petitioner and her daughter Amala were seen of to the Airport by the respondent and the husband and thereafter the respondent and her husband went to the house of the respondent and at no point of time the respondent and her husband stayed in the house at Puthupally. 9. We have gone through the records and especially Ext.P2 written statement filed by the 1[st] petitioner herein (who alone has filed the written statement in the original petition) and at 8 O.P.(FC) No.15 of 2016 paragraph 6, it is categorically stated that the respondent was allowed to reside in the house of mother of the 1[st] petitioner and she has behaved very lovingly to the respondent. When the said definite averment made in Ext.P2 written statement is tested against the amendment sought to the written statement filed, it is categoric and clear that the same is totally contradictory to the definite stand of the petitioners in the written statement. Moreover, if the amendment is allowed, the same will materially prejudice the respondent since she had adduced evidence before the Family Court as PW1 based on the definite averments contained in the written statement. Moreover the amendment sought for if allowed will destruct completely the already existing pleading. To counter this contention raised by the respondent before the Family Court, learned counsel for the petitioners contended that vital mistakes are crept in since the petitioners were abroad and the instruction were given to them over telephone and therefore, this court may take a lenient view in the matter of amendment since no prejudice will be caused to the respondent while considering the said question. Family Court entered into a clear finding that the written statement 9 O.P.(FC) No.15 of 2016 was filed by the 1[st] petitioner after a period of 8 months after receipt of the notice from the Family Court and therefore, there is no bonafides in contending that the petitioners could not get full details of the transaction till that date. 10. That apart learned counsel has contended that in view of the proviso to Order VI Rule 17 CPC the amendment can be allowed at any stage of the proceedings and therefore, the findings of the Family Court that amendment cannot be allowed since the evidence already begun cannot be sustained under law. But from the order of the Family Court what we find is that the Family Court did not enter into a finding that the amendment could not be allowed since the evidence has started, but on the other hand the Family Court has found that the petitioners have not offered any proper, cogent and reasonable explanation as to why they could not seek amendment on an earlier date. In that circumstances only the Family Court has found that there is no bonafides in the amendment sought for by the Power of Attorney Holder and since the trial has already commenced the petitioners have not made out a case so as to seek amendment to the written statement. 10 O.P.(FC) No.15 of 2016 11.In that context, learned counsel for the petitioner has invited our attention to the judgment of this Court in **Gopinathan Pillai v. Sumathykutty Amma & Ors** [2015 (4) KLJ 534] wherein this Court has held that in accordance with the terms of the proviso to Order VI Rule 17 of the Code the amendment could be allowed even by the appellate court. We have no difference of opinion with regard to the proposition of law laid down by the learned Judge of this Court in the judgment cited supra. But here in this case the Family Court has found that there are no sufficient reasons or bonafides for the petitioners to seek amendment at a belated stage. The Family Court has entered into such a finding after evaluating the entire documents, the evidence on record and the pleadings of the rival parties. Therefore, we do not find any legal reasons to interfere with the findings and conclusions of the Family Court. 12. So far as IA No.1034 of 2015 is concerned, the same is for recalling the respondent herein for cross-examination on the basis of the documents and the amendment sought for in accordance with the interlocutory applications referred above. Therefore, the said interlocutory application was dependent on 11 O.P.(FC) No.15 of 2016 the orders in the other two interlocutory applications. Since the same were dismissed by the Family Court, the said interlocutory application do not have any independent legal existence. We also find from the records available and the order of the Family Court that, apart from proposing to cross-examine the respondent herein with regard to the amendment sought for and the evidence to be produced there are no other circumstances sought for by the petitioners for cross-examination of respondent. 13. Therefore, after evaluating the entire facts and circumstances involved in the case, we are of the considered opinion that there is no error of law committed by the Family Court while dismissing the interlocutory applications referred above. Moreover, we are conscious of our supervisory power conferred under Article 227 of the Constitution of India whereby this Court is expected only to find out whether the order passed by the Family Court suffers from any legal infirmity warranting interference invoking the said jurisdiction. 14.For the foregoing reasons, we do not find any legal infirmity or other illegalities warranting our interference in the 12 O.P.(FC) No.15 of 2016 impugned orders passed by the Family Court , Kottayam. Resultantly, original petition fails and accordingly the same is dismissed. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY** //true copy// **JUDGE** P.A. To Judge smv 12.1.2016