Reghuvaran v. Manjusha Shaji and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 O.P.(FC) NO. 346 OF 2022** **AGAINST THE ORDER DATED 22.02.2022 IN I.A.NO.4 OF 2021 IN O.P.NO.549 OF 2019 ON THE FILE OF THE FAMILY COURT,** ## **NEDUMANGAD** ## **PETITIONER:** ## **REGHUVARAN** **AGED 64 YEARS,S/O. NEELAKANTAN ASARI, SHEENA NIVAS, MUTTAPPALAM, PERUMKUZHI P.O., THIRUVANANTHAPURAM, PRESENTLY RESIDING AT KANCHANVILAYIL, KENICHIRA, POOTHADI P.O., SULTHANBATHERRY, WAYANAD DISTRICT, PIN – 673596.** **BY ADVS. SHAJIN S.HAMEED MELWIN BYJU** ## **RESPONDENTS:** - **1 MANJUSHA SHAJI, AGED 42 YEARS, D/O. LEELA NARAYANAN, V.S. NIVAS, PARAPPARAMUKAL, KOTTUKUNNAM P.O., VAMANAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN – 695606.** - **2 AISWARYA SHAJI,** **AGED 17 YEARS, D/O. SHAJI KRISHNAN, REPRESENTED BY MOTHER MANJUSHA SHAJI, V.S. NIVAS, PARAPPARAMUKAL, KOTTUKONAM P.O., VAMANAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN – 695606.** 2 O.P.(FC) No.346 of 2022 - **3 ADITHYA SHAJI,** **AGED 10 YEARS, D/O. SHAJI KRISHNAN, REPRESENTED BY MOTHER MANJUSHA SHAJI, V.S. NIVAS, PARAPPARAMUKAL, KOTTUKONAM P.O., VAMANAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN – 695606.** - **4 VIJAYAMMA,** **AGED 64 YEARS, W/O. KRISHNAN ASARI, SHEENA NIVAS, MUTTAPALAM, PERUMKUZHI P.O., THIRUVANANTHAPURAM DISTRICT., PIN – 695305.** **BY ADVS. George Mathew ELSA DENNY PINDIS PRAVEEN S. M.D.SASIKUMARAN SUNIL KUMAR A.G DIPU JAMES MATHEW K.T. GEORGE K.V. STEPHY K REGI** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 04.04.2023, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.346 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The Family Court, Nedumangad allowed I.A.No. 4 of 2021 filed by respondent Nos.1 to 3 in O.P.No.549 of 2019 as per Ext.P6 order dated 22.02.2022. The petitioner, who is the 2[nd] respondent in O.P.No.549 of 2019, filed this Original Petition under Article 227 of the Constitution of India challenging the said order. 2. On 16.06.2022, notice was directed to be served on the respondents through their counsel appearing before the Family Court, Nedumangad. Pursuant to service of notice, respondents No.1 to 3 entered appearance through their learned counsel. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents No. 1 to 3. 4. Respondents No. 1 to 3 filed O.P.No. 549 of 2019 before the Family Court, Nedumangad seeking a decree allowing them to recover gold ornaments and money from the 4 O.P.(FC) No.346 of 2022 petitioner and the 4[th] respondent herein. The 1[st] respondent herein is the legally wedded wife of Shaji Krishnan. Two children born in their marital relationship are respondents No. 2 and 3. O.P.No.549 of 2019 was filed with the allegations that the 4[th] respondent retained 25 sovereigns of gold ornaments belonging to the 1[st] respondent and the petitioner refused to pay the insurance amount of Rs.19,19,477/received by him as the nominee, when Sri. Shaji Krishnan died in the Gulf. Respondents No.1 to 3 being the legal heirs of Late Shaji Krishnan filed O.P. No.549 of 2019. In that original petition jurisdiction to the Family Court, Nedumangad was derived by contending that respondents No. 1 to 3 were residing at Vamanapuram, a place within the territorial limits of that Court. 5. The petitioner has filed an interlocutory application pointing out that the Family Court, Nedumangad has no territorial jurisdiction to try that case. Later respondents No.1 to 3 filed I.A.No. 4 of 2021 to amend the original petition. They wanted to add additional pleadings that the gold 5 ## O.P.(FC) No.346 of 2022 ornaments in question were entrusted with the 4[th] respondent at her family house, the 1[st] respondent and late Shaji Krishnan resided together at that house and his last rites were performed at that house. The petitioner filed objection to that application. The Family Court after hearing both sides allowed that application. 6. The learned counsel appearing for the petitioner would submit that by allowing that application the Family Court permitted respondents No.1 to 3 to withdraw their admissions in the original petition. It is further submitted that such an amendment with the sole intention of investing jurisdiction to a wrong court should not have been allowed. The learned counsel appearing for respondents No.1 to 3, per contra, would submit that the purpose of leave to amend essentially is to explain the facts constituting the cause of action and the same does not amount to withdrawal of any admission. 7. The learned counsel appearing for the petitioner would submit that no amendment amounting to withdrawal of 6 O.P.(FC) No.346 of 2022 admission in a pleading can be allowed. It was contended that if such an amendment is allowed, it will be prejudicial in the case of the petitioner. The learned counsel accordingly submitted that the Family Court totally went wrong in allowing I.A.Nos.6 and 7 of 2022. 8. In **Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another [AIR 2022 SC 4256]** the Apex Court laid down the parameters for allowing or declining a plea for leave to amend pleadings, which are,- “Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter 7 O.P.(FC) No.346 of 2022 part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of 8 O.P.(FC) No.346 of 2022 pleadings, the Court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which 9 O.P.(FC) No.346 of 2022 are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the Court is required to be liberal in its approach. The Court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the Court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. See: **Vijay Gupta v. Gagninder Kr. Gandhi and others [2022 SCC OnLine Del 1897]** .” (underline supplied) 9. In O.P.No.549 of 2019, respondent Nos.1 to 3 did not say anything regarding the place at which the gold ornaments were entrusted and the place where the 1st respondent along with her late husband resided together. Where did they live during the last days of late Shaji Krishnan also has not been stated in that petition. Therefore, by adding the details regarding those aspects would not amount to 10 O.P.(FC) No.346 of 2022 withdrawal of any admission made by respondent Nos.1 to 3 in the original petition. Therefore, the objection raised by the petitioner that the amendment cannot be allowed since it would amount to withdrawal of admission by respondents 1 to 3 is untenable. 10. I.A.No.4 of 2021 was filed by respondent Nos.1 to 3 before the commencement of the trial. Of course, when the petitioner raised objection regarding the territorial jurisdiction of the Family Court, Nedumangad for which he filed I.A.No.1 of 2021, respondents 1 to 3 came forward with the proposed amendment. That, however, cannot be a reason to decline leave to amend the petition, if respondent Nos.1 to 3 are entitled otherwise to get the leave. It is the trite law that truth or falsity of the proposed amendment cannot be considered at the time when the application for amendment is considered. That is a matter to be decided after trial of the main proceedings. When those aspects are considered in the light of the law laid down by the Apex Court in the aforesaid decision, we are of the view that the proposed amendment is 11 O.P.(FC) No.346 of 2022 liable to be allowed. The Family Court, Nedumangad therefore rightly allowed I.A.No.4 of 2022. Only if that order is totally illegal or perverse, this Court in the exercise of the powers under Article 227 of the Constitution of India, can interfere with the same. We are of the view that Ext.P6 order, in the aforementioned circumstances, does not require interference. This Original Petition is accordingly dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(FC) No.346 of 2022 ## **APPENDIX OF OP (FC) 346/2022** ## **PETITIONER EXHIBITS** |**EXHIBIT-P1**|**PHOTOCOPY OF THE O.P.NO.549/2019 OF**| |---|---| ||**THE FAMILY COURT, NEDUMANGAD.**| |**EXHIBIT-P2**|**PHOTOCOPY OF THE OBJECTION FILED BY**| ||**THE**<br>**PETITIONER**<br>**HEREIN**<br>**IN**| ||**O.P.NO.549/2019 BEFORE THE FAMILY**| ||**COURT, NEUDUMANGAD.**| |**EXHIBIT-P3**|**PHOTOCOPY OF THE I.A.NO.2/2021 IN**| ||**O.P.NO.549/2019 ON THE FILE OF THE**| ||**FAMILY COURT, NEDUMANGAD.**| |**EXHIBIT-P4**|**PHOTOCOPY OF THE I.A.NO.4/2021 IN**| ||**O.P.NO.549/2019 ON THE FILE OF THE**| ||**FAMILY COURT, NEDUMANGAD.**| |**EXHIBIT-P5**|**PHOTOCOPY OF THE OBJECTION FILED BY**| ||**THE PETITIONER IN I.A.NO.4/2021 IN**| ||**O.P.NO.549/2019 ON THE FILE OF THE**| ||**FAMILY COURT, NEDUMANGAD.**| |**EXHIBIT-P6**|**PHOTOCOPY OF THE ORDER DATED**| ||**22/02/2022**<br>**IN**<br>**I.A.NO.4/2021**<br>**IN**| ||**O.P.NO.549/2019 OF THE FAMILY COURT,**| ||**NEDUMANGAD.**|