Kerala High Court
Anilkumar vs Treesa on 23 November, 2018
Author: T.V.Anilkumar
Bench: C.K.Abdul Rehim, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY ,THE 23RD DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940
OP (FC).No. 393 of 2018
AGAINST THE ORDER/JUDGMENT IN OP 314/2013 of FAMILY COURT, CHAVARA
DATED 04-06-2018
PETITIONERS:
1 ANILKUMAR
AGED 53 YEARS
MULLETHU PADINJARE VARIUM VEEDU,CHEPPAD MURI,
CHINGOLI VILLAGE,CHEPPAD (P.O.), ALAPPUZHA DISTRIC.
2 NIRMALA
MULLETHU PADINJARE VARIUM VEEDU,CHEPPAD MURI,
CHINGOLI VILLAGE,CHEPPAD (P.O.), ALAPPUZHA
DISTRICT,FROM THEKKUMKATTIL VEEDU,PAYAM DESOM, PAYAM
VILLAGE,THALASSERI, KANNUR DISTRICT.
BY ADVS.
SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENT/:
TREESA
D/O.MAGGI, MAGGI NIVAS,THEKKUMBHAGOM
MURI,KARUNGAPPALLY TALUK, KOLLAM DISTRICT,PIN - 691
001.
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 23.11.2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O.P.(FC) No.393/2018 2
C.K.ABDUL REHIM
&
T.V.ANILKUMAR, JJ.
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O.P.(FC)No.393 of 2018
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Dated this the 23rd day of November 2018
J U D G M E N T
T.V.ANILKUMAR,J.
The husband and his mother, who are the respondents before the court below, is challenging Ext.P4 order dated 4.6.2018 passed by the Family court, Chavara in O.P.314/2018 allowing the petitioner/wife to amend her pleadings in the O.P. The wife filed the O.P. for realisation of an aggregate amount of Rs.34 lakhs allegedly due under various transactions between the spouses. Those transactions and the claim due to her were scheduled as A to C in the O.P. The transactions include entrustment of O.P.(FC) No.393/2018 3 parental share, gold and entrustment of money etc., for the personal needs of the husband. The respondents in the said O.P. filed objections denying the allegations of entrustment and disowned their liability for the money claim. During the course of proceedings, the wife found that she had more claims to make against the respondents and she sought to enhance her present claim in the O.P., from Rs.34 lakhs to Rs.60,53,050/- by instituting I.A.313/2008, in which the impugned order was passed by the court below.
2. The husband challenges the order by invoking Article 227 of the Constitution of India, on the ground that the amendment allowed has changed the basic nature and character of the O.P. and it has the effect of bringing in time barred money claims O.P.(FC) No.393/2018 4 also. One of the major contentions raised in the O.P., before this Court is that, the court below did not take care of the bar under Order VI Rule 17 proviso in the CPC and granted leave to amend without appreciating the principles of law governing the amendment of pleadings.
3. We heard both sides.
4. The impugned order, we find, does not disclose the grounds on which the proposed amendment was found to be legally tenable. The court below did not examine the basic question as to whether the proposed amendment would alter the nature and character of the O.P., or as to whether it would have the effect of allowing time barred claims to be incorporated in the O.P., causing prejudice to the respondents before the Family Court.
O.P.(FC) No.393/2018 5
5. The order is totally silent as to the stage at which the amendment application was considered and allowed by the court below. Though the bar under Rule 17 proviso is not absolute, the court below should have considered the question whether the proposed amendment was moved before the stage of trial or afterwards and if so, whether the petitioner had satisfied the test of diligence, even if it was proposed after commencement of the trial.
6. The learned counsel for the respondent-wife in this O.P. submitted that the amendments proposed were in fact only clarificatory in nature and therefore itself no amount of plea based on limitation would foil her contention. We find that this question was not considered by the lower court and it is a matter to be O.P.(FC) No.393/2018 6 examined by the court based on the pleadings of the parties after finding out whether necessary foundation has been laid in the allegations made in the O.P. Except stating that, unless the amendment is allowed, the petitioner-wife will be put to hardship, the lower court has not taken pain to address the question as to whether the amendment proposed would result in changing the character and nature of the O.P. before it.
7. In any view of the matter, we are of the opinion that the impugned order cannot be sustained mainly for the reason that the court below did not bestow its attention to the basic legal principles governing amendment of pleadings. Necessarily, the matter has to go back to the lower court for fresh disposal in accordance with law. We O.P.(FC) No.393/2018 7 make it clear that we did not express out view on merits at all.
8. In the above circumstances, Ext.P4 order is hereby set aside and the Family Court, Chavara is directed to dispose of I.A.313/2018 afresh, bearing in mind the principles of law relating to amendment of pleadings and after hearing both sides on their respective contentions. This O.P.(FC) is disposed of as above.
Sd/-
C.K.ABDUL REHIM, JUDGE Sd/-
T.V.ANILKUMAR, JUDGE Al/-
O.P.(FC) No.393/2018 8
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION IN O.P.NO.314/2013 ON THE FILES OF THE FAMILY COURT, CHAVARA DATED 16/02/2011.
EXHIBIT P2 TRUE COPY OF THE PETITION DATED NIL. EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER DATED 20/04/2018. EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, CHAVARA IN I.A.NO.313/2018 IN O.P.NO.314/2013 DATED 04/06/2018. RESPONDENTS EXHIBITS : NIL.
TRUE COPY P.S TO JUDGE AL/-