## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE S.V.BHATTI**
## **&**
**THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 23RD DAY OF JUNE 2020 / 2ND ASHADHA, 1942**
## **OP (FC).No.180 OF 2020**
**AGAINST THE ORDER IN I.A. NO.97 OF 2020 IN OP NO.654/2014 DATED 29-02-2020 OF FAMILY COURT, NEDUMANGAD**
## **PETITIONER/PETITIONER:**
**SMITHA O., AGED 38 YEARS, D/O.OMANA, ELLUVILA PUTHEN VEEDU, MALAYAM, MALAYANKEEZHU VILLAGE, THIRUVANANTHAPURAM.**
**BY ADV. SRI.LATHEESH SEBASTIAN**
## **RESPONDENTS/RESPONDENTS:**
**1 MOHANAN AGED 52 YEARS, S/O.THANKAPPAN NADAR, MANGALAVILSAM VEEDU, CHEMBRAKONAM, PARACHAL MURI, KULATHUMMAL VILLAGE, KATTAKKADA.P.O, THIRUVANANTHAPURAM DISTRICT-695572**
**2 SARADA AGED 72 YEARS, D/O.AMMU MANGALAVILASAM VEEDU, CHEMBRAKONAM, PARACHAL MURI, KULATHUMMAL VILLAGE, KATTAKKADA.P.O, THIRUVANANTHAPURAM DISTRICT-695572**
**3 SANTHAKUMARY AGED 50 YEARS, D/O.SARADA, MANGALAVILASAM VEEDU,**
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**CHEMBRAKONAM, PARACHAL MURI, KULATHUMMAL VILLAGE, KATTAKKADA.P.O, THIRUVANANTHAPURAM DISTRICT-695572**
**R1-3 BY ADV. SRI.R.B.RAJESH**
**THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 23[rd] day of June, 2020
_Bechu Kurian Thomas, J._
An application for amendment, filed almost six years after the filing of the original petition, was rejected by the Family Court, Nedumangad, which is challenged in this petition.
2. The wife of the 1[st] respondent filed O.P. No.654 of 2014 before the Family Court, Nedumangad seeking realisation of value of gold ornaments and other sums entrusted with the respondents. She had also claimed a relief that the amounts due to her should be realised from the properties of counter petitioners including 12.5 cents of land situated in Survey No.153/1 of Re-Survey No.76/9 of Malayankeezhu Village. In the written statement filed by the counter petitioner, a counter claim seeking for a declaration of title over 'A' Schedule attached to the written statement and counter claim was also sought for. A written statement to the counter claim was filed by the original petitioner as early as on 13.1.2016. After completion of the pleadings in the case, including that of the counter claim, evidence commenced on 17.6.2017 and the same was
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completed on 25.10.2017. It is thereafter that the amendment application, which is produced as Ext.P4 in this petition, was filed before the family Court, Nedumangad. The amendment application dated 18.1.2020 was stoutly opposed by the respondents who pointed out that for almost three years, the petitioner had taken adjournments for final hearing and later even changed the counsel appearing for the petitioner. It was only on 18.1.2020 that the present amendment application was filed.
3. Taking note of the fact that both sides had adduced evidence and that the case was posted for hearing, the Family Court, Nedumangad, rejected the application for amendment after finding that there was no reason for the long delay in filing the amendment application within time and also that the test laid down under Order VI Rule 17 of the Code of Civil Procedure for permitting amendments even after commencement of trial was not satisfied. The aforesaid order of the Family Court, Nedumangad, is impugned in this proceeding.
4. Sri.Latheesh Sebastian, learned counsel for the petitioner vehemently contended that, if the amendment application is not allowed, petitioner, who is the wife in the marital relationship, will be subjected to immense hardship and
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inconvenience and the same will even lead to multiplicity of proceedings. He also pointed out that the amendment mainly relates to prayer for recovery of gold ornaments and 12.5 cents of property, which is already mentioned in the original petition. It was stated that the original petitioner omitted to incorporate certain specific recitals and reliefs for declaration of title to the aforementioned property.
5. Sri.R.B.Rajesh, learned counsel for the respondents contended that the amendment application is an abuse of the process of court, as numerous adjournments were taken by the petitioner even after conclusion of evidence which clearly shows that the amendment proposed is only an afterthought and the same does not come within the permitted category of amendments under Order VI Rule 17. He also contended that the amendment if allowed will change the very nature of the suit itself. He submitted that the facts now attempted to be brought into the pleadings was something on which specific questions were put during cross-examination of the petitioner herself on 17.6.2017 and if at all amendment was required, she should have raised it at least before evidence was completed.
6. We have considered the contentions of both parties and we find that there is no reason to interfere with the order of the
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Family Court, Nedumangad. A perusal of the original petition filed before the Family Court, Nedumangad would reveal that the original petition proceeded on the basis that 12.5 cents of property belongs to the 1[st] defendant by virtue of a settlement deed executed by the mother and grandmother of the original petitioner to the 1[st] respondent. There is no averment at all in the original petition that 12.5 cents of property covered by the settlement deed does not belong to the 1[st] respondent. It can further be seen from relief No.2 that the original petitioner has claimed for recovery of the amounts due to her from the said property also. Of course there is a whisper in relief No.2 that the original petitioner must be declared as the owner of these properties after attachment is carried out for recovery of the amounts mentioned in the said relief. Nowhere in the original petition it is mentioned that the original petitioner's title in respect of 12.5.cents of property must be declared. In fact, the same does not even arise for consideration as the property originally belonged to the mother and grandmother of the original petitioner and not that of the original petitioner. Thus, it cannot, under any circumstances, be said that the issue now attempted to be raised as amendment is a matter that will amount to a real question in controversy between the parties.
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7. Learned counsel for the petitioner also brought to our notice the decision of the Supreme Court in **Abdul Rehman and Another v. Mohd. Ruldu and Others** (2012) 11 SCC 341) wherein it was held that the courts should try merits of the case that comes before them and should consequently allow all amendments that may be necessary for determining real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. A reading of the said decision reveals that the proposition laid down in that case had a different factual matrix. In **Abdul Rehman's case** (supra) the Supreme Court found that when the voidness relating to the sale deeds, in that case, was already set out in the unamended plaint the relief of cancellation of sale deeds, as sought by amendment, does not change nature of suit.
8. Coming to the facts of the present case, it can be seen that to decide the real question in controversy between the parties an amendment was not necessary. The case put forth by the petitioner through the amendment is a deviation from the original plaint. It is fundamental that a new cause cannot be attempted to be brought in by virtue of an amendment. Title to 12.5 cents of property was never claimed in the original petition and the same is a new cause. Thus, we find that the attempt of
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the original petitioner is to bring in a new cause, which is not essential to determine the real question in controversy between the parties.
9. It is also relevant to mention that the facts that are now attempted to be brought in by amendment are matters which was certainly within the knowledge of the original petitioner from the beginning, if not, at least at the time of cross-examination of the original petitioner. In such circumstances, we find that the attempt of the petitioner to bring in an amendment at this highly belated stage is unjustified.
10. Accordingly, we agree with the conclusions arrived at by the learned Family Judge, Nedumangad and dismiss this original petition. In the facts of the case, no order as to costs.
## **Sd/-**
**S.V.BHATTI JUDGE**
**Sd/-**
**BECHU KURIAN THOMAS JUDGE**
vps
**-:9:-**
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE PETITION IN OP NO.654/2014 OF FAMILY COURT, NEDUMANGAD**
**EXHIBIT P2 TRUE COPY OF THE OBJECTION AND COUNTER CLAIM OF THE RESPONDENTS**
**EXHIBIT P3 TRUE COPY OF THE OBJECTION OF THE PETITIONER TO THE COUNTER CLAIM OF THE RESPONDENTS**
**EXHIBIT P4 TRUE COPY OF PETITIONER IN IA NO.97/2020 IN OP NO.654/2014 OF FAMILY COURT, NEDUMANGAD**
**EXHIBIT P5 TRUE COPY OF THE OBJECTION TO EXT.P4 PETITION**
**EXHIBIT P6 TRUE COPY OF THE ORDER DATED 29.02.2020 IN IA NO.97/2020 IN OP NO.654/2014 OF FAMILY COURT, NEDUMANGAD.**
