VELAYUDHAN S/O VELLAN; SREEDHARAN S/O VELLAN; VELLAYI W/O VELLAN v. K.V. USHA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940** **Mat.Appeal.No. 383 of 2009** **AGAINST THE ORDER/JUDGMENT IN OP 111/2007 of FAMILY COURT,KOZHIKODE DATED 20-11-2008** ## **APPELLANT(S)/APPELLANT/RESPONDENT** **1 VELAYUDHAN, S/O. VELLAN, MENTALLY RETARDED REP. BY MOTHER AND GUARDIAN, VELLAYI,** **W/O. VELLAN, PULPARAKUNNUMMAL HOUSE,, NADUVANNUR** **AMSOM AND DESOM, KOYILANDI TALUK.** **2 SREEDHARAN, S/O. VELLAN, PULPARAKUNNUMMAL HOUSE, NADUVANNUR AMSOM AND, DESOM, KOYILANDI TALUK.** **3 VELLAYI, W/O VELLAN,SWASTHAM, PULPARAKUNNUMMAL HOUSE NADUVANNUR AMSOM AND DESOM,, KOYILANDI TALUK.** **BY ADV.SRI.P.V.SURENDRANATH** ## **RESPONDENT(S)/PETITIONER:** **K.V.USHA, D/O. CHERIYAKKAN, AGED 31, KUTTIKKATTU KUNIYIL HOUSE, PATHALAYANI AMSOM AND, DESOM, KOYILANDY TALUK, KOZHIKODE DIST.** **R,R1 BY ADV. SRI.E.NARAYANAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. --------------------------MAT.APPEAL No. 383 of 2009 --------------------------Dated 1[st] day of June, 2018** ## **JUDGMENT** ## **K.Harilal, J.** The appellants are the respondents in OP 111/2007 on the files of the Family Court, Kozhikode. The first appellant is the husband of the respondent and the appellants 2 and 3 are the brother and mother of the first appellant. The aforesaid original petition was filed by the respondent herein for a decree granting damages to the respondent. (The parties are referred to as in the original petition). According to the averments in the original petition, the first respondent is a mentally retarded person and he is incapable of leading a normal married life. The respondents have obtained consent of the petitioner for the marriage with the first respondent by suppressing the said fact of mental retardation and disorder. The respondents were aware of the real mental condition of the first respondent. Had the petitioner been aware of the actual mental condition of the first respondent, she would not have given consent for the marriage. Thus, the respondents have played and practised fraud on the petitioner and obtained her consent for marriage by wilfully suppressing the real state of 2 MAT.APPEAL No. 383 of 2009 affairs regarding the mental capacity of the first respondent. According to the petitioner, on the date of marriage itself, the first respondent behaved abnormally. He did not behave as a husband and he refused to talk with the petitioner. He refused to enter into the bedroom on the very first night and he was loitering inside the compound of the house till 12 mid night. At about 12 O'clock he was persuaded and compelled by his relatives including respondents 2 and 3 to enter into bed room. Even thereafter he did not attempt to talk to the petitioner. Immediately after entering into the bed room he fell into sleep. He did not came near to her on the next morning also. On the next day the relatives of the petitioner visited the matrimonial home and the petitioner informed her relatives about the abnormal behaviour of the first respondent. The matter was talked with the relatives of the petitioner and the first respondent. Ultimately, the petitioner had to return to her house along with the parents on the night of 15.5.1996. Thus, they fell apart and living separately from 15.5.1996 onwards. When she came to know the actual mental condition of the appellant, she filed a petition before the family court as OP 212/1996 for annulment of the marriage with the first respondent and the above original petition was allowed on 3 MAT.APPEAL No. 383 of 2009 30.6.1998. According to the petitioner, her parents had spent more than Rs 50,000/- for the marriage with the first respondent. The chances for a remarriage for the petitioner is very remote. Though the actual damage caused to the petitioner due to the fraud played by the respondents cannot be estimated in terms of money, the petitioner claimed Rs 50,000/- under this head. Thus, the petitioner is entitled to get a total compensation of Rs 1,00,000/- by way of compensation from the respondents. Though the petitioner and her relatives demanded the said amount, the respondents refused to pay the amount. In the above circumstances, the original petition was filed seeking a decree to realise Rs 1,00,000/- as damages from the respondents. 2. The respondents filed a counter-statement denying the liability to pay damages to the petitioner. They have denied the alleged mental retardation, mental disorder and incapacity of the first respondent. According to them, the first respondent was leading a normal marriage life with the petitioner. The marriage between the petitioner and the first respondent was an arranged marriage and they have obtained the consent of the petitioner after disclosing the entire details of the family and there was no suppression of material facts or misrepresentation in any manner 4 MAT.APPEAL No. 383 of 2009 whatsoever as alleged in the petition. The marriage was solemnised with free will and consent of the petitioner and on due enquiry and the satisfaction arose there-from the petitioner granted consent. The second respondent has been living separately along with his family for the last more than 20 years far away from the tharavadu house wherein the first respondent was residing with the petitioner. The marriage was solemnised three months after the engagement and the petitioner has got sufficient time to enquire about them. Since the petitioner has granted consent on her own will and volition after understanding entire things, she is not entitled to get damages from the respondents. 3. On the aforesaid pleadings, both parties adduced evidence which consists of oral testimony of PW1 and documents were marked as Exts A1 to A5 from the part of the petitioner and oral evidence of RW1 and RW2 and documents Exts B1 to B4 were marked from the part of the respondents. On appraisal of the aforesaid evidence, the family court allowed the original petition in part by granting a decree to realise an amount of Rs 50,895/from the respondents 1 to 3 with 9% interest. The findings whereby the family court allowed the original petition are assailed 5 MAT.APPEAL No. 383 of 2009 in this appeal. 4. Heard the learned counsel for the appellants and the learned counsel for the respondent. 5. Though this appeal has been filed on various grounds challenging the legality and correctness of the findings of the family court on the evidence on record, the learned counsel for the appellant mainly contended that the suit itself was barred by limitation. But, the family court miserably failed to consider the question of limitation. According to the learned counsel, even though the question of limitation was not raised, it was incumbent upon the the court to consider the same in view of Sec.3 of the Limitation Act. The learned counsel further contends that the period of limitation prescribed for filing a suit for damages is three years and in the instant case, the original petition was filed after three years. The marriage between the petitioner and the first respondent was solemnised on 13.5.1996 and OS No.27/2001 was filed before the Munsiff Court, within the period of limitation in the year 2001 for damages. But the original suit was returned due to lack of jurisdiction and the petitioner filed the present original petition before the family court on 13.2.2007. According to the learned counsel, in the meantime, three years prescribed for filing 6 MAT.APPEAL No. 383 of 2009 a suit for damages have been elapsed and the institution of the present original petition, after returning the original suit from the Munsiff Court as OS 27/2001 is not a continuation of the suit. Therefore the family court ought to have rejected the original petition as the same was barred by limitation. 6. Per contra, the learned counsel for the respondent advanced arguments and contended that the institution of the present original petition as OP 111/2007 before the family court is a continuation of the initial suit OS 27/2001 filed before the Munsiff Court. 7. In view of the arguments at the bar, the short point that arises for consideration as a preliminary point before this court is whether the original petition was barred by limitation. OP 111/2007 was filed before the family court on 13.2.2007. It is not disputed that the date of annulment of the marriage between the petitioner and the first respondent by decree passed in OP 212/1996 was on 30.6.1998. OS 27/2001 was filed before the Munsiff Court in 2001 so the same was filed within a period of three years. But the suit was returned to the petitioner on 11.12.2006 due to lack of jurisdiction and the petitioner filed a fresh original petition before the family court on 13.2.2007 as OP 7 MAT.APPEAL No. 383 of 2009 111/2007. It is needless to say this original petition was filed more than 8 years after 30.6.1998. It follows that the suit was barred by limitation as per Article 113 of the Limitation Act. The learned counsel for the respondent contended that OP 111/2007 was the continuation of OS 27/2001 and thereby the present original petition will not be barred by limitation. The legal position is well settled by plethora of decisions such as **AIR 2006 SC 646 (Harshad Chiman Lal Modi vs D.L.F Universal Ltd & Anr)** , **1973 SC 313 (Amar Chand Inani vs Union of India)** and **AIR 2014 SC 83 (ONGC Ltd vs M/s. Moideen Construction & Co.,)** etc. The proposition that could be culled out from the aforesaid decision is that 'where the plaint is returned by the court having no jurisdiction and is presented before a court of competent jurisdiction, it cannot be treated as a continuation of the earlier suit, after such presentation'. It is a suit filed afresh subject to the period of limitation. 8. That apart, we have examined the original petition and found that the OP No.111/2007 is a fresh petition and it is not the plaint which was filed before the Munsiff Court and returned to the petitioner. We further found that there is no pleadings in compliance with the statutory requirement under Order VII rule 6 8 MAT.APPEAL No. 383 of 2009 of the CPC. According to Order VII rule 6 CPC, where the suit is instituted after the expiration of the period prescribed by law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. But in the instant case, there was no such pleadings seeking exemption as prescribed by Order VII rule 6 CPC. Therefore the petitioner was not entitled to get any kind of exemption also. In **2001 (3) KLT 122 (George vs Koshy)** this court held that “if exemption is claimed for limitation, it is obligatory to show the same in the pleadings, consequently, unless the plaint is amended the parties cannot rely on an exemption not pleaded in the plaint”. We further find that even though there was no pleadings raising the bar of limitation in the counter-statement filed by the respondents the period of limitation should have been considered without such pleadings in view of Sec.3 of the Limitation Act. According to Sec.3 of the Limitation Act, subject to the provisions contained in Secs 4 to 24 every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. 9. In the above analysis, we find that the original petition was not maintainable as the same was barred by limitation. 9 MAT.APPEAL No. 383 of 2009 Consequently, this appeal will stand allowed. The impugned judgment and decree under challenge are set aside. It is made clear that if the appellants have deposited any amount towards the decree amount they are allowed to withdraw the same. sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** sks/02.06.2018