O.P.(F.C.) No.225 of 2024

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV & THEHONOURABLEMR.JUSTICEP.M.MANOJ MONDAY,THE27[TH]DAYOFMAY2024/6THJYAISHTA,1946 ``` ## **`OP (FC) NO. 225 OF 2024`** ``` AGAINSTTHEORDERDATED12.12.2023INOPNO.917OF2017OF THEFAMILYCOURT,ERNAKULAM ``` ## **`PETITIONERS/RESPONDENTS/RESPONDENTS:`** - **`1 NADINE`** ``` AGED43YEARS D/OLATEVINCENT,6B,GOLDENRESIDENCY,S.A.ROAD, KADAVANTHRA,KOCHI,PIN-682020 ``` ``` 2KOCHURANIVINCENT AGED67YEARS W/OLATEVINCENT,6B,GOLDENRESIDENCY,S.A.ROAD, KADAVANTHRA,KOCHI,PIN-682020 ``` ## **`BY ADV G.SREEKUMAR (CHELUR)`** ``` RESPONDENTS/PETITIONERANDTHE3RDRESPONDENT/PETITIONER ANDTHE3RDRESPONDENT: ``` ``` 1THOMAS AGED55YEARS S/OP.TOUSEPH,PATHIPARAMBANHOUSE, KORATTY,MURINGOORP.O,CHALAKKUDY, THRISSURDISTRICT,PIN-680038 ``` ``` 2MATHEWMKOSHY AGED72YEARS S/OKOCHUKOSHY,MURIKKANARYHOUSE, ELAMAKKARAPO,COCHIN,PIN-682026 ``` ## **`OTHER PRESENT:`** ## **`SRI THOMAS, PARTY IN PERSON`** ``` THISOP(FAMILYCOURT)HAVINGCOMEUPFORFINALHEARINGON 27.05.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` 2 O.P.(F.C.) No.225 of 2024 ## **J U D G M E N T** ## **Raja Vijayaraghavan, J.** The petitioners herein are aggrieved by the order passed in I.A.No. 6 of 2023 in O.P No.917 of 2017 filed by the 1st respondent herein on the files of the Family Court, Ernakulam. 2. The aforesaid petition is filed by the 1st respondent for passing a decree declaring that the execution of Settlement Deed No. 2938 of 2012 of the Edapally SRO by the 1st respondent in favour of the mother/2nd respondent as null and void. He has also sought for a decree, declaring that the sale of the properties detailed in Document No.790 of 2017 of the Edapally SRO is null and void and for directing the respondent nos. 1 and 2 to return the sale amount shown in the said document to the 3rd respondent. 3. It appears that the aforesaid petition was filed before the Family Court on 24.04.2017. The petition was dismissed for default on 04.12.2019. The matter was challenged before this Court by filing 3 O.P.(F.C.) No.225 of 2024 O.P.(FC) No. 53 of 2023, and pursuant to directions issued, the case was restored back to file. 4. When the case was posted for pre-trial steps, Ext.P3 - application was filed as I.A. No.6 of 2023, seeking the following reliefs: “For the reasons stated in the accompanying affidavit it is most humbly prayed that this Hon’ble Court may be pleased to implead or include the pleadings as stated in the 2nd paragraph of the affidavit in the plaint and also prayer (B) of the plaint as stated in the affidavit in OP 917/2017 that “this court may direct the 1st and 2nd defendant to re-assign /re-convey/ transfer the plaint schedule property in favour of me on the strength of the agreement of undertaking made by 1st defendant dated 18.03.2003” in the interest of justice.” 5. From the order, it appears that the respondent has opposed the application, contending that the application is highly belated. He also contended that the prayer sought for in the amendment application is not liable to be allowed. 6. The learned Family Court took note of the fact that the petitioner is prosecuting the matter in person. All that is stated in the order is that, in view of the contentions raised by the parties that the proposed amendment is necessary for the just and proper disposal of the case. 4 O.P.(F.C.) No.225 of 2024 7. Sri. G. Sreekumar (Chelur), the learned counsel appearing for the petitioner submitted that though the power to allow an amendment is wide and may at any stage be appropriately exercised in the interest of justice, the exercise of such power should be governed by judicial considerations. The learned counsel contended that wider the discretion, greater ought to be the care and circumspection on the part of the court. He argued that the court had passed the order without proper application of mind. The learned counsel pointed out that a document of the year 2003 was introduced in an Original Petition filed in the year 2017 through an application filed in the year 2023. It is further contended that the petitioner had failed to mention about the transaction relating to the execution of the settlement deed when the petition was filed and in that view of the matter, the court ought to have carefully scrutinized the assertions before allowing the same. 8. The respondent who appeared in person refuted the contentions. 9. We have considered the submissions advanced. 5 O.P.(F.C.) No.225 of 2024 10. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. ( State of M.P. v. Union of India, (2011) 12 SCC 268) 11. In **Revajeetu Builders and Developers v. Narayanaswamy and Sons[1]** , the Apex Court delineated the principles that shall be born in mind while allowing or rejecting the application for amendment. It was held as follows in paragraph No. 63 of the judgment: - “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: > 1 [(2009) 10 SCC 84) 6 O.P.(F.C.) No.225 of 2024 - (1) whether the amendment sought is imperative for proper and effective adjudication of the case; - (2) whether the application for amendment is bona fide or mala fide; - (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; - (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; - (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and - (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 12. In the case on hand, all that is stated by the Family Court in the impugned order is that the proposed amendment is necessary for a just and proper disposal of the case. The fact that the respondent was prosecuting the case as a party in person was also taken note of. None of the contentions raised by the respondent in the application or the principles that are to be borne in mind while considering an application 7 O.P.(F.C.) No.225 of 2024 for amendment were noticed by the Family Court. We also find that no reasons, let alone plausible reasons, were given by the Family Court while allowing the application. 13. For the above reasons, we are unable to sustain the order passed by the Family Court. Ext.P4 is set aside. There will be a direction to the Family Court to reconsider the application for amendment and pass fresh orders within 3 weeks from the date of receipt of a copy of this judgment. This Original Petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- **P.M.MANOJ JUDGE** APM/27/5/24 8 O.P.(F.C.) No.225 of 2024 ## **`AAPPENDIX OF OP (FC) 225/2024`** ``` PETITIONEREXHIBITS ExhibitP1TRUECOPYOFTHEORIGINALPETITIONFILED ASOPNO.917OF2017BEFORETHEFAMILY COURT,ERNAKULAMDATED20.4.2017 ExhibitP2TRUECOPYOFTHEOBJECTIONFILEDATTHE INSTANCEOFTHERESPONDENTS1AND2IN O.PNO.917OF2017DATED10.10.2023 ExhibitP3TRUECOPYOFTHEIANO.6OF2023INO.P NO.917ONTHEFILESOFFAMILYCOURT ERNAKULAMDATED06.12.2023 ExhibitP4TRUECOPYOFTHEORDERPASSEDBYTHE FAMILYCOURTERNAKULAMINIANO.6OF 2023INO.PNO.917OF2017DATED 12.12.2023 ```