Sangeetha d/o Nirmala v. Suresh and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 OP (FC).No. 567 of 2015 (R) ---------------------------- AGAINST THE ORDER DATED 15.10.2015 IN I.A.NO.1436/2015 & I.A. NO.1437/2015 IN OP 229/2013 of FAMILY COURT, ATTINGAL. PETITIONER: -------------------- SANGEETHA D/O.NIRMALA, CHIRACKAL VEEDU, MANAKKATUVILAKOM,CHITTATTUMUKKU, KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT - 695 301. BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA RESPONDENTS: ------------------------- 1. SURESH S/O. SURENDRAN, AGED 36 YEARS, " KARTHIKA",CHIRACKAL, MANAKKATUVILAKOM, CHITTATTUMUKKU,KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT 695 301 2. SURENDRAN, AGED 60 YEARS, " KARTHIKA",CHIRACKAL, MANAKKATUVILAKOM, CHITTATTUMUKKU,KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT 695 301 3. SUJATHA W/O. SURENDRAN," KARTHIKA",CHIRACKAL, MANAKKATUVILAKOM, CHITTATTUMUKKU,KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT 695 301 4. SULAJA D/O. SURENDRAN, " KARTHIKA",CHIRACKAL, MANAKKATUVILAKOM, CHITTATTUMUKKU,KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT 695 301 R2,R3 & R4 BY ADV. SRI.LATHEESH SEBASTIAN THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P (FC).No. 567 of 2015 (R) ------------------------------------ ## APPENDIX ## PETITIONER'S EXHIBITS ---------------------------------- EXHIBIT P1: A TRUE COPY OF THE ORIGINAL PETITION O.P NO 229/2013 ON THE FILE OF THE FAMILY COURT, ATTINGAL EXHIBIT P2: A TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT TO EXT P1 EXHIBIT P3: A TRUE COPY OF THE CMP NO 7294/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, 1 ATTINGAL (JFMC-1) EXHIBIT P4: A TRUE COPY OF THE I.A NO 1836/2015 IN EXT.P1 EXHIBIT P5: A TRUE COPY OF THE I.A NO 1837/2015 IN EXT.P1 EXHIBIT P6: A TRUE COPY OF THE TWO PHOTOGRAPHS PRODUCED ALONG WITH EXTS.P4 AND P5 EXHIBIT P7: A TRUE COPY OF THE ORDER DATED 15-10-2015 OF THE FAMILY COURT ATTINGAL DISMISSING EXTS: P4 AND P5 PETITIONS ## RESPONDENTS' EXHIBITS -------------------------------------- EXHIBIT R2(a) : TRUE COPY OF THE AGREEMENT DATED 03.07.2013 EXHIBIT R2(b) : TRUE COPY OF THE PETITION IN M.C. NO.114/2014 OF FAMILY COURT, ATTINGAL. EXHIBIT R2(c) : TRUE COPY OF THE FINAL REPORT IN C.C.NO.367/2012. EXHIBIT R2(d) : TRUE COPY OF THE OBJECTION TO EXTS.P4 AND P5 FILED BY THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE smv ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** ----------------------------------------------- ## **O.P.(FC) No.567 of 2015 ----------------------------------------------Dated this the 22[nd] day of March, 2016.** ## **JUDGMENT** ## Shaji P. Chaly, J. This original petition is filed by the petitioner against the order of the Family Court, Attingal dated 15.10.2015 in I.A. No.1436/2015 and I.A No.1437/2015 in O.P.No.229/2013, whereby the Family Court dismissed the interlocutory applications filed by the petitioner seeking impleadment and amendment of the original petition. 2. Brief facts for the disposal of the original petition are that, the petitioner and the 1[st] respondent are wife and husband respectively. Marriage of the petitioner and the 1[st] respondent was solemnized on 13.7.2003 at Trivandrum as per the rites, rituals and traditions prevailing in the Hindu community. Thereafter the parties were residing as man O.P.(FC) No.567 of 2015 2 and wife. No issues were born in the said wedlock. 3. Matrimonial discord and disputes arose between the parties. This led to institution of various litigations by the petitioner before various forums. One among the litigation is O.P. No.229/2013 on the files of the Family Court, Attingal. The said original petition was filed against the 1[st] respondent alone seeking dissolution of marriage, maintenance and return of gold ornaments, evident from Ext.P1. Ext.P1 was originally laid before the Family Court, Trivandrum in the year 2012, which was later on transferred to the Family Court, Attingal in 2013. To Ext.P1, 1[st] respondent has filed Ext.P2 objection refuting the allegations, statements, claims and demands made by the petitioner. 4. Petitioner has filed CMP No.7294/2011 before the Judicial Magistrate of the 1[st] Class I, Attingal against respondents herein viz; husband, father, mother and the O.P.(FC) No.567 of 2015 3 sister of the 1[st] respondent respectively alleging offence under Section 498A r/w Section 34 IPC, evident from Ext.P3. In Ext.P3 petitioner has averred in paragraph No.5 that the gold ornaments gifted to her by her parents and others were taken away and sold, and appropriated the sale proceeds by all the respondents herein. Based on the directions issued in Ext.P3, FIR No.348/2011 was registered by Kadinamkulam Police Station and later submitted the charge and numbered as CC 367/2012 on the files of the Judicial 1[st] Class Magistrate Court I, Attingal. However, the charge was submitted by the Police against respondent No.1 alone, which thus means during the course of investigation respondents 2 to 4 were found innocent and they were exonerated from the array of parties while filing the final report. 5. Matters being so, petitioner has filed I.A No.1436/2015 seeking to implead respondents 2 to 4 as O.P.(FC) No.567 of 2015 4 additional respondents in the original petition. That apart I.A. No.1437/2015 was filed seeking to amend the original petition. The said interlocutory applications are produced as Exts.P4 and P5 respectively. The Family Court after appreciating the contentions raised by the petitioner in Exts.P4 and P5, by a common order, dismissed the interlocutory applications holding that the intention of the petitioner is to harass the respondents for reasons enumerated in the said impugned order. It is thus challenging Ext.P7 order this original petition is filed by the petitioner. 6. Respondents entered appearance in this original petition and has filed detailed counter affidavit refuting the claims and demands made by the petitioner so far as the interlocutory applications are concerned and contended that the intention of the petitioner is to harass respondents 2 to 4 without any rhyme or reason. O.P.(FC) No.567 of 2015 5 7. Heard learned counsel for the petitioner and the respondents. 8. The thrust of the contention advanced by the learned counsel for the petitioner is that, even though while filing Ext.P1 original petition, the petitioner has instructed the counsel engaged by her to seek a decree against all the respondents since the entire 22 sovereigns of gold ornaments were sold and misappropriated by respondents together, the counsel failed to implead respondents 2 to 4 and incorporate necessary pleadings in the original petition in order to seek a decree against the said respondents also. That apart it is contended by the learned counsel that Ext.P3 which is filed by the petitioner in the year 2011, it is categorically stated in paragraph 5 that the entire gold ornaments secured by the respondents from the petitioner was sold and misappropriated by the respondents together. Therefore, the counsel contends that the dismissal of O.P.(FC) No.567 of 2015 6 Exts.P4 and P5 applications seeking to implead respondents 2 to 4 and the amendment sought to be carried out in the original petition were not legal and proper. 9. That apart it is contended by the counsel that by incorporating amendments in the original petition no manner of prejudice will be caused to the respondents since they will get opportunity to contest the proceedings before the Family Court. It is also contended by the counsel that by impleading respondents 2 to 4 and incorporating amendments as sought for in the original petition the nature and character of the suit will not change. Therefore, the counsel contends that Ext.P7 impugned order passed by the Family Court is to be set aside and the impleadment and amendments sought for in Exts.P4 and P5 applications are to be allowed. 10. Per contra learned counsel for the respondents contended that even though respondents 2 to 4 were O.P.(FC) No.567 of 2015 7 incorporated in Ext.P3 criminal complaint filed before the Magistrate Court alleging offence under Section 498A, after investigation, found that respondents 2 to 4 have not committed any offence as alleged in the petition and were exonerated and the charge was laid before the Magistrate Court with 1[st] respondent alone in the party array. It is also contended by the learned counsel for the respondent that even though the matter was pending before the court from the year 2012 onwards, the petitioner has not cared to seek any impleadment. The said conduct of the petitioner itself is a testimony to show that the impleading and amendments sought for by the petitioner cannot be sustained either factually or legally and the same are filed with the intention of harassing respondents 2 to 4 and to seek a settlement thereunder. 11. We have appreciated the rival contentions, perused the pleadings and the documents produced along with the O.P.(FC) No.567 of 2015 8 original petition. The question remains to be considered is whether Ext.P7 impuged order passed by the Family Court does require any interference. 12. The Family Court after considering the rival contentions of the parties refused to allow Exts.P4 and P5 by holding that even though respondents 2 to 4 were incorporated in Ext.P3 criminal complaint, they were exonerated while the final report was submitted by the Police before the Magistrate Court. That part it was also found that in Ext.B4 petition, the contention of the petitioner is that, the gold ornaments were taken and sold by the 1[st] respondent, deserted the petitioner and working abroad. Therefore the court found that there are no sufficient grounds to implead respondents 2 to 4 and allowing the impleadment so as to incorporate the pleadings and relieves in order to seek a decree against the respondents 2 to 4 also. O.P.(FC) No.567 of 2015 9 13. In Ext.P5 amendment application, petitioner has sought 28 amendments and also sought to incorporate a schedule also as amendment No.29. We have gone through the amendment application and we find that wherever in Ext.P1, respondent is mentioned, the amendment is sought as 1[st] respondent and amending the word 'respondent' to 'respondents' wherever applicable. Thus on a perusal of Ext.P5, it can be seen that the pleadings are sought to be amended by the petitioner so as to incorporate pleadings attributing allegations against respondents 2 to 4 also and seek relieves against them. 14. The question remains in the background is whether impleading and amendments sought for by the petitioner can be allowed ? With this view in mind, we have perused Ext.P1 original petition. On a perusal of the averments in paragraph 4 it is the categoric assertion of the petitioner that the entire gold ornaments remaining with the O.P.(FC) No.567 of 2015 10 petitioner after the marriage was sold by the 'respondent' (1[st] respondent) and misappropriated the money received from it to lead a luxurious life and has squandered the said money. Thereafter it is specifically pleaded that, after misappropriating the money the 1[st] respondent in order to go abroad has directed the petitioner to secure money from her parents. So also in paragraph 5, reference is made with respect to the parents of the petitioner in the context that the 1[st] respondent was prohibited from seeking any co-operation with the parents of the petitioner and her siblings. That apart it is also pleaded that the entire work of the tea shop conducted by the 2[nd] respondent namely father of the 1[st] respondent was being carried out through the petitioner. That a part in various other paragraphs, specifically, the conduct and other activities of the respondents 2 to 4 are mentioned. That apart a predominant circumstance is existing at paragraph 11 of O.P.(FC) No.567 of 2015 11 Ext.P1, that the 1[st] respondent is liable and is financially capable of returning the gold ornaments to the petitioner. Above all these things, the relieves are sought specifically against the 1[st] respondent alone. Now by seeking impleading and amendments the petitioner seeks to incorporate the pleadings so as to include the relieves against respondents 2 to 4 also. Learned counsel has invited our attention to the judgment of the Apex Court in **Haridas Girdharidas and others v. Varadaraja Pilllai and another** reported in [AIR 1971 SCC 2366] in order to canvass the proposition that a party will be allowed to amend the pleadings if no injustice is caused to the opposite parties and the relief claimed thereby is within the period of limitation. 15. Having gone through the facts of the case supra we are of the considered opinion that the same has no bearing to the facts of the case at hand, in order to persuade us to O.P.(FC) No.567 of 2015 12 think that the principles laid thereunder can be applied in the instant case. In our view, there were specific pleadings in the original petition signed and verified by the petitioner. It can only be presumed that at the time of subscribing her signature, she has read the original petition and found the pleadings incorporated therein as correct. In such circumstances, ordinary evidence or mere assertions will not be a substitute to prove that the petitioner has instructed the counsel to incorporate pleadings and relieves against respondents 2 to 4 also. Apart from the assertions made, the petitioner has not cared to adduce any evidence in order to establish before the Family Court the reasons stated by her in Ext.P5 affidavit. That apart it is the specific contention of the petitioner that since the counsel has failed to carry out the instructions given by her while filing the original petition the counsel was changed and another counsel was engaged. In spite of all these things, no O.P.(FC) No.567 of 2015 13 evidence is forthcoming to substantiate the contentions put forth by the petitioner in the affidavit filed along with Ext.P5 application. That apart we take note of the fact that when the Police laid charge before the Magistrate Court, respondents 2 to 4 were deleted and that apart in Ext.P4 Maintenance Petition, the court below has taken note that the petitioner has alleged that the 1[st] respondent has taken the gold ornaments from her, sold it, deserted her and went abroad. 16. Reckoning all these circumstances and assimilating the fact situation, especially taking into account that the impleading and amendments were sought to be incorporated in the original petition after a period of almost three years and no explanations were forthcoming with respect to the delay occurred in filing the said applications. Merely because petitioner had made an allegation in the year 2011 in Ext.P3 criminal complaint that the respondents O.P.(FC) No.567 of 2015 14 together sold the gold ornaments and misappropriated the money, alone is not a sustainable ground to arrive at a finding that the petitioner originally intended to incorporate respondents 2 to 4 in the party array and seek releives against them. We are told at the Bar that the very same counsel has filed Ext.P1 original petition and Ext.P3 complaint. The same is also a circumstance remaining adverse to the petitioner. We are also of the considered opinion that, if the amendments are allowed to be incorporated, the same will be destructing the specific pleadings in the original petition with respect to the allegations attributed against the 1[st] respondent with regard to the misappropriation of gold ornaments. 17. The upshot of the above discussion is that the impugned order passed by the Family Court is not suffering from any illegality, irrationality or other legal infirmities so as to warrant interference by invoking the supervisory O.P.(FC) No.567 of 2015 15 jurisdiction conferred on us under Article 227 of the Constitution of India. Resultantly, the original petition fails and the same is accordingly dismissed. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY** //true copy// **JUDGE** P.A. To Judge 23.2.2016