Kerala High Court
Sreekumar vs Sreekumar on 28 January, 2016
Author: Shaji P. Chaly
Bench: C.K.Abdul Rehim, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937
OP (FC).No. 513 of 2015 (R)
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PETITIONERS/RESPONDENTS:
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1. SREEKUMAR,
S/O.MOHANDAS, AGED 38 YEARS,
RESIDING AT SAVITHRI BHAVAN,
MUTTPPALAM, AZHOOR VILLAGE, TRIVANDRUM.
2. SIVAKUMARI,
S/O.MOHANDAS, RESIDING AT -DO- -DO-
BY ADV. SRI.M.R.SARIN
RESPONDENT/PETITIONER
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RENJISHA,
D/O.SASIDHARAN, AGED 33 YEARS,
RESIDING AT K.K.NIVAS,
NEAR HOLY CROSS HOSPITAL, MURUKKUMPUZHA
VEYILOOR VILLAGE, TRIVANDRUM.
BY ADVS. SMT.K.KUSUMAM
SRI.K.KALESH
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 28-01-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
OP (FC).No. 513 of 2015 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: THE TRUE COPY OF THE IN OP 1272/13 ON THE FILE OF THE FAMILY
COURT ATTINGAL.
EXT.P2: THE TRUE COPY OF THE IA.NO.1549/15 IN OP 1272/2013 ON THE FILE
OF THE FAMILY COURT ATTINGAL.
EXT.P3: THE TRUE COPY OF THE INVENTORY PREPARED BY THE ADVOCATE
COMMISSIONER IN OP.NO.1272/2013 ON THE FILE OF FAMILY COURT
ATTINGAL.
EXT.P4: THE TRUE COPY OF THE RODER IN IA.NO.1549/2015 IN
OP.NO.1272/2013 ON THE FILE OF FAMILY COURT ATTINGAL.
EXT.P5: THE TRUE COPY OF OBJECTION FILED BY THE PETITIONERS IN
IA.NO.1549/2015 IN OP.NO.1272/2013 ON THE FILE OF FAMILY COURT
ATTINGAL.
RESPONDENTS' EXHIBITS
EXT- R1- TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM
FILED BY THE HUSBAND/PETITIONER HEREIN BEFORE THE FAMILY
COURT, ATTINGAL IN OP No.1272/2013.
True copy
P.A. To Judge
AMG
C.K. ABDUL REHIM, J.
&
SHAJI P. CHALY, J.
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O.P (FC) No. 513 OF 2015
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DATED THIS THE 28th DAY OF JANUARY, 2016
J U D G M E N T
Shaji P. Chaly, J:
The captioned original petition is filed under Article 227 of the Constitution of India by the respondents against Ext.P4 order passed by the Family Court, Attingal in IA No.1549/2015 in OP No.1272/2013. By order dated 22-09-
2015 Family Court has allowed the interlocutory application and granted the following reliefs to the respondent:
"(a). Respondents are directed to hand over the key of locker No.18 of the District Co-operative Bank, Chirayinkeezhu to the petitioner or deposit the key before the court on or before 07-10-2015.
(b). The Secretary, District Co-operative Bank, Chirayinkeezhu is directed to allow the petitioner to open the locker No.18 maintained in the joint names of the petitioner and the 1st respondent.
(c). Petitioner is allowed to open the locker and take possession of the ornaments kept therein as per the inventory report dated 19-10-2013 filed by the Advocate Commissioner.
(d). The parties are liable for their respective costs."OP (FC) No. 513/2015 -2-
It is thus challenging the said order this original petition is preferred by the respondents. Brief facts for the disposal of the original petition is that the respondent has filed OP No.1272/2013 for recovery of gold ornaments of 103 = sovereigns and money and for other reliefs. Along with the original petition, application for temporary injunction seeking to restrain the petitioners herein from operating locker No.18 maintained in the District Co-operative Bank, Chirayinkeezhu in the joint names of the petitioner and the respondent was also filed. The said petition was allowed by the Family Court. It is the contention of the respondent that at the time of marriage she had 103 = sovereigns of gold out which 95 sovereigns were kept in the said locker. The key of the locker was retained by the petitioner and his mother. The petitioners filed written statement stating that the ornaments belonging to the petitioners are also kept in the locker. It was also contended that the petitioners have lien over the gold ornaments kept in the locker by the respondent.
OP (FC) No. 513/2015 -3-
2. However, matters being so, the court below has deputed an Advocate Commissioner to verify the ornaments kept in the locker and to prepare an inventory. Thereupon the Advocate Commissioner reported that on 12.7.2011 the locker was jointly opened by the 1st petitioner and the respondent, and in the locker only 676.590 gms. of gold is available. It was also reported that, on perusal of the register kept by the bank with respect to the opening of locker, the locker was operated only once by the 1st petitioner on 13.7.2011 i.e., the next day after the locker account was opened.
3. While so respondent has filed I.A. No.1549/2015 in O.P. No.1272/2013 seeking orders of the court to open the locker and to take custody of her ornaments kept in the said locker and for other related reliefs.
4. The said application was opposed by the petitioners contending that the application is premature and that the petitioner had entrusted 124 sovereigns of ornaments as scheduled in the counter claim to O.P.No.1278/2013 pending before the court and that some OP (FC) No. 513/2015 -4- of the items mentioned in the counter claim schedule are also kept in the locker along with the ornaments of the respondent. In that circumstances, it was contended that no interim order may be passed allowing the respondent to take possession of the jewellery kept in the joint locker belonging to the 1st petitioner and the respondent.
5. However the Family Court after hearing the rival parties has passed the order directing the petitioners to handover key of the locker to the respondent and has also permitted the respondent to take possession of the jewellery kept in the locker mostly relying on the report of the Advocate Commissioner deputed by the court below.
6. We heard learned counsel for the petitioners as well as respondent. Having considered rival submissions we are of the considered opinion that there is a claim and counter claim raised by the parties to the litigation. The petitioners have also a case that the ornaments belonging to the petitioners are kept in the very same locker. In that view of the matter identification of the ornaments belonging to the rival parties was not done either by the OP (FC) No. 513/2015 -5- Commissioner, or the court has not made any efforts to evaluate the circumstances raised by the petitioners in the counter claim. The petitioners have also a case that the petitioners have raised counter claim for damages also and the ornaments kept in the locker belonging to the respondent will create a lien to the counter claim so raised. Be that as it may, having appreciated the rival circumstances we are of the considered opinion that it was not proper on the part of the court below to have passed an interim order to take possession of the gold ornaments by the wife from the joint locker. We are of the considered opinion that, interest of justice can be protected by ordering early disposal of the case taking into account the fact that the original petitions are pending before the Family court from the year 2013 onwards. We are also of the opinion that if the respondent is allowed to take the ornaments and that too without obtaining any security, same may cause prejudice when the proceedings are finally decided by the Family Court. Therefore the interim order passed by the Family Court is liable to be vacated. Accordingly we do so. OP (FC) No. 513/2015 -6-
7. However the Family Court, Attingal is directed to take a decision on the original petitions pending between the parties before the court within a period of 6 months from the date of receipt of a copy of this judgment.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
SHAJI P. CHALY, JUDGE.
AMG True copy P.A. to Judge