Salini v. Unnimaya

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN`** ``` & ``` ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 16[TH] DAY OF MAY 2023 / 26TH VAISAKHA, 1945 ``` ``` OP (FC) NO. 210 OF 2023 ``` ``` AGAINST THE ORDER DATED 22.03.2023 IN I.A.NO.4 OF 2023 IN O.P.NO.1367 OF 2022 OF THE FAMILY COURT, IRINJALAKUDA PETITIONER: ``` ``` SALINI, AGED 55 YEARS, W/O.GOPINATHAN, KATTOOR P.O., MUKUNDAPURAM TALUK, THRISSUR, PIN - 680702 ``` ``` BY ADVS.DEEPU LAL MOHAN AISWARYA ``` ## **`RESPONDENT:`** ``` UNNIMAYA, AGED 21 YEARS, D/O.UNNIKRISHNAN PALLITHARRA HOUSE, EDATHIRUTHI P.O., KODUNGALLUR TALUK, THRISSUR, PIN - 680703 ``` ``` BY ADVS.DILEEP VARGHESE TESMY VARGHEESE(K/446/2007) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 16.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- O.P.(FC)No.210 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner, who is the 2[nd] respondent in O.P.No.1367 of 2022 on the file of the Family Court, Irinjalakuda, which is one filed by the respondent herein for return of gold ornaments or its market value, 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 the order dated 22.03.2023 in I.A.No.4 of 2023 in O.P.No.1367 of 2022. The petitioner has also sought for an order directing the Family Court to allow that interlocutory application. 2. On 28.04.2023, when this original petition came up for admission, this Court issued notice before admission to the respondent by special messenger. 3. The respondent has filed a counter affidavit dated 04.05.2023. In paragraph 3 of the said counter affidavit, it is stated as follows; “3. Attachment under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 is made to secure the Decree to be passed. Exhibit P4 FD receipt is without lien. There is no endorsement or undertaking by the Bank Manager that the FD will be subject to further orders of the Family Court. The personal FD receipt of petitioner for fixed term can be subject to misappropriation and will -3- O.P.(FC)No.210 of 2023 not secure the Decree to be passed. ……………” (underline supplied) 4. The petitioner has filed reply affidavit dated 09.05.2023 to the counter affidavit filed by the respondent. 5. On 12.05.2023, when this matter came up for consideration, the learned counsel for the respondent submitted that the respondent is agreeable to allow the petitioner to furnish a Fixed Deposit as security, provided, it carries a lien in favour of the Registry of the Family Court. The learned counsel for the petitioner submitted that the petitioner is willing to produce the Fixed Deposit receipt with the afore lien before this Court by the next posting date. In such circumstances, while adjourning the matter to 16.05.2023, this Court permitted the petitioner to produce the Fixed Deposit receipt with a lien in favour of the Registry of the Family Court, so as to issue appropriate orders. 6. Along with a memo filed by the learned counsel for the petitioner, the original of Ext.P4 Fixed Deposit receipt bearing endorsement dated 15.05.2023 regarding lien of Rs.4,78,000/- marked in favour of the Registry of the Family Court, Irinjalakkuda, is placed on record. 7. Heard the learned counsel for the petitioner and also the learned counsel for the respondent. -4- O.P.(FC)No.210 of 2023 8. Ext.P6 order dated 22.03.2023 of the Family Court, Irinjalakkuda in I.A.No.4 of 2023 in O.P.No.1367 of 2022, which is under challenge in this original petition, reads thus; “This petition is filed under Order 38 Rule 9 of the Civil Procedure Code to withdraw the attachment in IA 2/22 and to inform the concerned offices. Heard, perused the FD produced. The security furnished is not proper, hence petition dismissed.” (underline supplied) 9. 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. 10. 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 explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what -5- O.P.(FC)No.210 of 2023 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. 11. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and 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 -6- O.P.(FC)No.210 of 2023 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. 12. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that a cryptic order like Ext.P6 passed by the Family Court cannot be sustained in law. 13. As already noticed hereinbefore, along with a memo filed by the learned counsel for the petitioner, the original of Ext.P4 Fixed Deposit receipt bearing endorsement dated 15.05.2023 regarding lien of Rs.4,78,000/- in favour of the Registry of the Family Court, Irinjalakkuda is placed on record. 14. In such circumstances, this original petition is disposed of by setting aside Ext.P6 order dated 22.03.2023 of the Family Court, Irinjalakkuda in I.A.No.4 of 2023 in O.P.No.1367 of 2022 for the reasons stated hereinbefore and O.P.(FC)No.210 of 2023 -7- by directing the Family Court to pass fresh orders in the said interlocutory application, after considering the rival contentions, taking note of the Fixed Deposit receipt bearing endorsement dated 15.05.2023 regarding lien of Rs.4,78,000/- in favour of the Registry of the Family Court, Irinjalakkuda. A decision in this regard shall be taken, 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. Registry to return the original of the Fixed Deposit Receipt produced by the learned counsel for the petitioner, along with the memo dated 15.05.2023, after retaining an attested copy of the same in the judges’ papers of this original petition. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **DR. KAUSER EDAPPAGATH, JUDGE** AV/16/5 -8- O.P.(FC)No.210 of 2023 ## **`APPENDIX OF OP (FC) 210/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit-P1 THE COPY OF SUMMONS ISSUED BY THE COURT BELOW IN O.P.NO.1367/2022 ``` ``` Exhibit-P2 THE COPY OF SUMMONS ALONG WITH THE SCHEDULE OF THE PROPERTY ISSUED BY THE COURT BELOW ON 13-10-2022 ``` ``` Exhibit-P3 THE COPY OF I.A.2/2022 IN O.P.NO.1367/2022 PREFERRED BY THE RESPONDENT ``` ``` Exhibit-P3(a) THE PHOTOCOPY OF ORDER DATED 12-10- 2022 OF FAMILY COURT, IRINJALAKUDA IN I.A.NO.2/2022 IN O.P.NO.1367/2022 ``` ``` Exhibit-P4 THE COPY OF LETTER DATED 15-03-2023 ISSUED BY THE MANAGER STATE BANK OF INDIA, KATTOOR BRANCH ``` ``` Exhibit-P5 THE COPY OF APPLICATION AS I.A.NO.4/2023 ``` ``` Exhibit-P6 THE COPY OF THE ORDER DATED 22-03- 2023 IN I.A.NO.4/2023 IN O.P.NO.1367/2022 ``` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R1 OBJECTION FILED BY RESPONDENT IN IA NO.4/2023 IN OP NO.13667/2022 DATED 21.03.2023 ``` ``` PETITIONER EXHIBITS ``` ``` ORIGINAL RECEIPT ORIGINAL OF THE FIXED DEPOSIT RECEIPT ```