Kerala High Court
Kunhathutty Aged 47 Years vs Meleveettil Kunhikoya on 28 January, 2014
Author: K.Ramakrishnan
Bench: C.K.Abdul Rehim, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY, THE 6TH DAY OF JULY 2015/15TH ASHADHA, 193
Mat.Appeal.No. 230 of 2014 ()
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AGAINST THE ORDER/JUDGMENT IN OP 92/2013 of FAMILY COURT, TIRUR
DATED 28-01-2014
APPELLANT(S)/PETITIONER:
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KUNHATHUTTY AGED 47 YEARS
D/O.CHOLAYIL KOYAKUTTY, W/O.MELEVEETTIL KUNHIKOYA
MELEVEETTIL HOUSE, VALLIKKUNNU AMSOM, DESOM
KADALUNDI NAGARAM P.O., TIRURANGADI TALUK
MALAPPURAM DISTRICT PIN - 673 314.
BY ADVS.SRI.N.SUKUMARAN (SR.)
SRI.S.SHYAM
SRI.KURUVILLA JOHN
SRI.N.K.KARNIS
SRI.KIRAN PETER KURIAKOSE
RESPONDENT(S)/RESPONDENTS:
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1. MELEVEETTIL KUNHIKOYA, AGED 57 YEARS
S/O.CHEKKUTTI HAJI, VALLIKUNNU AMSOM, DESOM
KADALUNDI NAGARAM P.O., TIRURANGADI TALUK
MALAPPURAM DISTRICT PIN - 673 314.
2. SAINABA, AGED 44 YEARS
D/O.THAYYIL PARAMBIL ABDURAHIMAN, VALLIKKUNNU AMSOM
DESOM, KADALUNDI NAGARAM P.O.
TIRURANGADI TALUKMALAPPURAM DISTRICT PIN - 673 314.
3. MAMMALINTE PURAKKAL SAIFUNNEESA,, AGED 20 YEARS
D/O.IBRAHIM KUTTY, VALLIKKUNNU AMSOM, DESOM
KADALUNDI NAGARAM P.O.
TIRURANGADI TALUKMALAPPURAM DISTRICT PIN - 673 314.
R1-R3 BY ADV. SRI.K.RAMACHANDRAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-
07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CR
C.K.ABDUL REHIM & K.RAMAKRISHNAN, JJ.
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Mat. Appeal .No. 230 of 2014
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Dated this the 6th day of July, 2015
JUDGMENT
K.Ramakrishnan,J.
Petitioner in OP.No.92/2013 on the file of the Family Court, Tirur is the appellant herein.
2. The appellant filed OS.No.157/2002 before the Sub Court, Tirur for specific performance of a sale agreement executed by her husband, the 1st respondent herein. The case of the appellant was that her husband married the 2nd respondent and started residing with her. As part of the settlement between the 1st respondent and the appellant, the 1st respondent had entered into an agreement for sale on 4.7.2002 whereby the properties mentioned therein were to be conveyed to the appellant for a total consideration of Rs.4 lakhs. Out of Rs. 4 lakhs, Rs.3.5 lakhs was already paid to the 1st respondent. Though she was ready and willing to pay the balance amount and get the document executed, he was not prepared to execute the MA.230/2014 2 sale deed and he is trying to create sham documents in favour of respondents 3 and 4. So the appellant filed OS.No.157/2002 before the Sub Court, Tirur for a decree for specific performance of a sale agreement executed by her husband.
3. A written statement was filed by the 1st respondent denying the allegations and there was no pleading with regard to the limitation raised. The suit was instituted on 26.10.2002. During the pendency of the proceedings before the Sub Court, Tirur, the Family Court was established in Malappuram. So the appellant filed IA.No.619/11 under Order 7 Rule 10A of the Code of Civil Procedure to return the plaint for presentation before the Family Court, Malappuram. After hearing both sides, the learned Sub Judge passed an order directing return of the plaint to be presented before the Family Court Malappuram on or before 15.3.2011 with a direction to the parties to appear before the Family Court, Malappuram on 25.3.2011. It was on that basis the plaint was presented before the Family Court, Malappuram on 14.3.2011 and it was taken on file as OP.No.287/2011. Thereafter when the Family Court, Tirur was formed, this petition was transferred to the Family Court, Tirur and renumbered as MA.230/2014 3 OP.No.92/2013. In that court the 1st respondent raised a contention that the suit is barred by limitation as the return of plaint ought to have been re-presented before the Family Court, Malappuram on the next day of the return of the suit by the Sub Court and there was a delay of 16 days in re-presenting the suit before the Family Court, Malappuram. It is also contended that the Sub Court has no jurisdiction to extend the period for presentation of plaint before proper court. Relying on the decision reported in Videocon International Ltd. vs. Logos Traders (2007(4) KLT 848) the Family Court came to the conclusion that the plaint presented was out of time and as such it is barred by limitation and dismissed the suit. Aggrieved by the same, the present appeal has been preferred by the appellant/petitioner
4. Heard learned counsel for the appellant and respondents.
5. Counsel for the appellant submitted that by virtue of section 8 of the Family Court Act, all pending matters has to be transferred to the Family Court, Tirur as on the date of notification establishing the Family Court and any order passed MA.230/2014 4 thereafter in that matter is without any jurisdiction and further even if an application has been filed by the parties, that court has no jurisdiction to entertain the application. So presentation before the court below even by mistake on account of return of plaint will not take away the purpose by virtue of section 8 of the Family Court Act. He had relied on the decision in Sivan Pillai vs. Omana Amma & another (1996(2) KLJ 482) in support of his case.
6. On the other hand counsel for the respondent submitted that if it is a transfer by the court, then there is no question of limitation arises. No such contention was raised in the appeal memorandum. Further having filed the application for return of plaint under Order 7 Rule 10A and getting an order, she cannot now fall back on section 8 of the Family Court Act to save limitation.
7. It is an admitted fact that the suit OS.No.157/2002 was filed by the appellant herein before the Sub Court, Tirur, because at that time there was no Family Court established in Malappuram District. So at the time when the suit was filed, that court has jurisdiction to entertain the case as it was filed MA.230/2014 5 within time as well. Further it was a suit between the appellant and the 1st respondent in respect of settlement of properties. It is thereafter that the Family Court was established in Malappuram.
8. Section 8 of the Family Court Act reads as follows:
Sec.8. Exclusion of jurisdiction and pending proceedings-
Where a Family Court has been established for any area- (a) no District Court or any subordinate Civil Court referred to in sub section
(i) of section 7 shall in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section.
(b) No Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, ) every suit or proceeding of the nature referred to in the explanation to sub section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure (i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate court referred to in that sub section or MA.230/2014 6 as the case may be before any Magistrate under the said code, and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
9. So by virtue of section 8(c) every suit or proceeding of the nature referred to in the explanation to sub section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure (i) which is pending immediately before the establishment of such Family Court before any District Court or subordinate court referred to in that sub section or as the case may be before any Magistrate under the said code shall stand automatically transferred to the Family Court with effect from the date of establishment of the Family Court. So under the circumstances the court below ought to have transferred the case to the Family Court. Once the Family Court was established the matter coming under section 7 of the Family Court Act has to be tried by the Family Court and not by any other court. In view of MA.230/2014 7 that provision entertaining the application under Order 7 Rule 10A of Code of Civil Procedure and passing an order returning the plaint to be presented before proper court itself is without jurisdiction as that court has no jurisdiction to entertain that application at that time. This is supported by a decision of this court by a Single Judge in Sivan Pillai vs. Omana Amma & another (1996(2) KLJ 482) which we approve. If that be so then merely because an order was passed by the sub court directing return of the plaint to be presented before proper court and on that basis the party had presented the case within the time prescribed by the court cannot be said to be wrong committed by the party. Here is a case where the order passed by the court below itself is without jurisdiction and court below ought to have transferred the suit invoking section 8(c) of the Family Court Act. No party shall be put to prejudice on account of any wrong committed by the court. Even if court has returned the same for presentation before proper court, it can only be treated as a suit transferred under section 8(c) of the Family Court Act and it can only be treated as a deemed transfer under section 8(c) of the Act and instead of an order returning MA.230/2014 8 the plaint under Order VII Rule 10A of the Code of Civil Procedure. If that be the case there is no question of limitation arises as the suit was filed before the Sub Court within time.
10. Under the circumstances, the order passed by the court below dismissing the suit as barred by limitation is unsustainable in law and the same is liable to be set aside. The judgment passed by the court below is set aside and the matter is remitted back before the court for fresh disposal in accordance with law on merits on other issues in the case.
C.K.ABDUL REHIM, JUDGE
K.RAMAKRISHNAN, JUDGE
Pmn/
MA.230/2014 9