Kerala High Court
K.V.Joseph vs Lissy @ Georgia on 1 March, 2016
Author: A.M.Shaffique
Bench: A.M.Shaffique, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 9TH DAY OF FEBRUARY 2017/20TH MAGHA 1938
OP (FC).No. 139 of 2016 (R)
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I.A.NO. 4669/2014 IN O.P.NO.989/2013 OF FAMILY COURT, ERNAKULAM
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PETITIONER(S) :
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K.V.JOSEPH,
AGED 60 YEARS, S/O.VARKEY,KANJIRATHINGAL HOUSE,
ELANJI, NOW RESIDING AT KARIPPATTU HOUSE,
H.NO.XXXII/338A, PADINJARA CHEPPALAPARAMBIL,
THAMANAM PUTHIYAROAD, PALARIVATTOM P.O.,
ERNAKULAM, PIN CODE-682 025.
BY ADVS. SRI.P.VISWANATHAN
SRI.K.V.VINOD
SRI.SUNIL N.SHENOI
RESPONDENT(S) :
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1. LISSY @ GEORGIA,
AGED 48 YEARS, D/O.FRANCIS @ CHEEKU,
KARIPPATTU HOUSE, H.NO.XXXII/338A,
PADINJARA CHEPPALAPARAMBIL,
THAMANAM PUTHIYAROAD, PALARIVATTOM P.O.,
ERNAKULAM, PIN-682 025.
2. SAMJAD.A.G.,
S/O.GAFOOR, RESIDING AT 16/762A,
INDIRA JUNCTION, THOPPUMPADY P.O.,
KOCHI, PIN CODE-682 005.
R1 BY ADVS. SRI.E.NARAYANAN
SMT.K.K.PREETHA
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 09-02-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
OP (FC).No. 139 of 2016 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXT.P1: THE TRUE PHOTOSTAT COPY OF O.P.NO.989 OF 2013 ON
THE FILES OF THE FAMILY COURT, ERNAKULAM.
EXT.P2: THE TRUE PHOTOSTAT COPY OF THE SALE DEED
NO.2526 OF 2013 OF EDAPALLY SUB REGISTRY.
EXT.P3: THE TRUE PHOTOSTAT COPY OF I.A NO.4669 OF 2014 IN
O.P.NO.989 OF 2013 ON THE FILES OF THE FAMILY COURT,
ERNAKULAM.
EXT.P4: THE TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT FILED
IN I.A.NO.4669 OF 2014 IN O.P.NO.989 OF 2013 ON THE FILES ON
THE FAMILY COURT, ERNAKULAM.
EXT.P5: THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 01.03.2016
PASSED IN I.A.NO.4669 OF 2014 IN O.P.NO.989 OF 20113 ON
THE FILES OF FAMILYCOURT, ERNAKULAM.
EXT.P6: THE CERTIFICATE ISSUED BY THE CHIEF MANAGER, STATE BANK
OF INDIA STATING THE LOAN DETAILS OF THE PETITIONER
DATED 29.03.2016.
EXT.P7: THE CERTIFICATE ISSUED BY THE CHIEF MANAGER, STATE BANK
OF INDIA DATED 17-11-2015.
EXT.P8: THE CERTIFICATE ISSUED BY THE PRINCIPAL, CHRISTIAN
EDUCATIONAL TRUST COLLEGE OF MANAGEMENT SCIENCE AND
TECHNOLOGY,IRAPURAM DATED 30-03-2016.
RESPONDENT(S)' EXHIBITS :
EXHIBIT R1(A): TRUE COPY OF THE ORDER DATED 29.04.2015 IN
M.C.NO. 15/2012 OF THE JUDICIAL FIRST CLASS
MAGISTRATE I , ERNAKULAM.
EXHIBIT R1(B): TRUE COPY OF THE AGREEMENT ON 09.09.2002 BETWEEN
THE PETITIONER AND THE 1ST RESPONDENT.
EXHIBIT R1(C): TRUE COPY OF THE AGREEMENT ON 24.03.2012 BETWEEN
THE PETITIONER AND THE 1ST RESPONDENT.
EXHIBIT R1(D): TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM
LAKSHMI HOSPITAL.
EXHIBIT R1(E): TRUE COPY OF THE BILLS OF PURCHASE OF MEDICINES
BY THE 1ST RESPONDENT.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A.M.SHAFFIQUE, J
&
K.RAMAKRISHNAN, J
* * * * * * * * * * * * * *
O.P.(F.C.) No.139 of 2016
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Dated this the 9th day of February 2017
J U D G M E N T
Ramakrishnan, J This original petition is filed by the respondent in O.P.No.989/2013 challenging Ext.P5 order passed by the Court below under Article 227 of the Constitution of India.
2. The petitioner herein filed Ext.P1 petition, O.P.No.989/2013 before the Family Court , Ernakulam to set aside cancellation deed said to have been executed by the 1st respondent in respect of the document executed in his favour. The 1st respondent herein filed Ext.P3 application I.A.No.4669/2014 for interim maintenance and litigation expenses. Respondent filed Ext.P4 counter contending that the application is not maintainable and she is not entitled to get either pendent lite maintenance or litigation expenses. The Court below passed Ext.P5 order, which is under challenge.
3. Learned counsel for the petitioner submitted that the application is not maintainable as the application is not filed for divorce wherealone there is provision for pendente lite maintenance and the litigation expenses to be claimed by the O.P.(F.C) No.139/2016 2 other spouse and secondly, according to him, the property has been sold by the 1st respondent to the 2nd respondent herein for an amount of Rs.26 lakhs and that amount is in her possession and in such circumstances, she is not entitled to get any maintenance. These contentions raised were not considered by the Court below.
4. On the other hand, learned counsel for the respondent submitted that she had incurred a lot of expenses for treatment and also other liabilities which were to be discharged by her and she had used that amount for that purpose and that she is not having any income.
5. It is seen from Ext.P5 order that the contentions raised by the parties have not been considered. The court below had passed only the following order:
"Heard both sides. Considered the counter. I.A allowed. Respondent is directed to pay interim maintenance at the rate of Rs.7,500/-. Make payment. Comply the order. Call on 02/04/2016."
6. There is some force in the submission made by the learned counsel for the petitioner that when detailed objections have been filed, there is a duty cast on the Court below to consider those objections and answer the same before rejecting O.P.(F.C) No.139/2016 3 the contentions made by him and make the order in favour of the petitioner who filed the application claiming relief. That has not been done in this case.
7. Under such circumstances, we feel that the order passed by the Court below is liable to be set aside and the matter has to be remitted to the Court below for fresh consideration, in accordance with law, after considering the objections raised by the petitioner herein, who is the respondent before the Court below in the application.
8. Accordingly, this original petition is allowed. Order in I.A.No.4669 in O.P.No.989/2013 is set aside and the same is remitted to the Court below for fresh disposal, in accordance with law. The Family Court is directed to consider and pass appropriate orders, after considering the objections, within a period of three weeks from the date of receipt of a copy of this judgment.
Registry is directed to communicate the judgment to the court below at the earliest.
(sd/-) (A.M.SHAFFIQUE, JUDGE) (sd/-) (K.RAMAKRISHNAN, JUDGE) jsr