IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
OP (FC).No.471 OF 2020
AGAINST THE ORDER IN OP 280/2020 OF FAMILY COURT, THIRUVALLA
PETITIONER:
PRASANNA KUMARI, AGED 59 YEARS
W/O.M.N.JAYAPRKASH, RESIDING AT KARTHIKA BHAVAN,
THAZHEVETTIPURAM, MUNDUKOTTAKKAL P.O., PATHANAMTHITTA
VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA - 689 649.
BY ADVS.
SRI.NIRMAL V NAIR
SHRI.AKHIL ALPHONSE G.
RESPONDENT:
M.N.JAYAPRAKASH, AGED 69 YEARS
S/O.NEELANKANDAN, P.K.R.CENTRE, OPPOSITE
PATHANAMTHITTA KSRTC BUS STAND, ABOVE AJANTHA STUDIO,
PATHANAMTHITTA - 689 645.
R1 BY ADV. SRI.V.SETHUNATH
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) No.471 of 2020
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K. Vinod Chandran & M.R.Anitha, JJ.
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O.P. (FC) No.471 of 2020
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Dated, this the 07th day of January, 2021
JUDGMENT
Vinod Chandran, J.
The challenge raised in the Original Petition is against order Ext.P11 rejecting the prayer for joint trial. On facts, suffice it to notice that the petitioner and the respondent are wife and husband in their sixties thrashing out their marital disputes in the Family Court. Without referring to the allegations and counter allegations we would record the series of litigations initiated by the parties. MC No.16/2018 is the proceeding initiated by the petitioner-wife under the Protection of Women from Domestic Violence Act, 2005; now pending before the JFCM Court Chengannoor, with which we are not concerned. The respondent-husband filed separate applications for divorce and partition of the property in the joint name of the husband and wife, before the Family Court, Pathanamthitta. Since the respondent was a practicing Advocate in Pathanamthitta a transfer was sought and allowed by which the cases were re-numbered in the Family Court Mavelikkara. The presiding Judge having acquaintance with the respondent it was again transferred to Thiruvalla where they were respectively numbered as O.P.No.561/19(Divorce) and O.P. O.P.(FC) No.471 of 2020 -3- No.562/19(Partition). The petitioner/wife subsequently caused to file O.P No.154/2020 for a declaration of absolute ownership of the residential property, which was the subject matter of the partition suit filed by the respondent. The suit for declaration filed by the wife is now transferred and numbered as O.P No.280/2020 before the Family Court, Thiruvalla. The prayer before Family Court, Thiuvalla which was declined by the impugned order, was for joint trial of O.P 280/2020 along with O.P 562/2019.
2. The learned Counsel for the petitioner vehemently argued that the very intention of the transfer of the suit for declaration, from Pathanamthitta to Thiruvalla was for joint trial along with 562/2019. In fact, the Family Court also has in the impugned order found that it is a fit case for joint trial but, however, the prayer was declined only because the High Court had prescribed the time limit for disposal of the other matters transferred earlier to Thiruvalla, for which disposal, once extension has been sought for and allowed. The petitioner seeks setting aside of the impugned order and a direction to conduct joint trial of the cases.
3. The learned Counsel for the respondent contested the prayer on the ground that the evidence had commenced long back in the other two cases, ie., for divorce and partition. The proceedings sheet produced along with the counter O.P.(FC) No.471 of 2020 -4- affidavit is specifically referred. The learned Counsel would assert that the suit filed for declaration after more than two years after institution of a partition suit is a mischievous ploy to further delay the proceedings, since the petitioner is in residence in that property and the respondent is residing in a lodge.
4. We have given our anxious consideration and perused the records. As we noticed, the application for divorce and partition were initiated by the respondent husband in the year 2018 and he had sought for transfer of the proceedings on valid grounds. However, on transfer being allowed, there was again a valid reason for a subsequent transfer, which was also effected. As of now the transferred applications have been numbered in the Thiruvalla Court in 2019 and steps were being proceeded. We see from the proceeding sheet produced as Ext.R1(b) that after appearance of parties the matter was posted for objection on two days and then for evidence on 17.02.2020. The petitioner/wife in the two years in which, the application for partition of the property existing in the joint name of the husband and wife, was pending had not thought it fit to raise a counter claim in that application. Though not produced, presumably the written statement is filed by the wife and the matter has been posted for evidence, which also has commenced. The present suit filed by the wife for declaration was instituted O.P.(FC) No.471 of 2020 -5- in February 2020 as is seen from Ext.P4. We cannot but observe that Ext.P4 is not a true copy of the petition filed, since it does not bear the date of execution; thus depriving us of knowing the exact date on which it was filed. Considering the fact that the specific posting for evidence in O.P.562/2019 was in the month of February 2020, the bonafides of the petitioner who filed the fresh application for declaration in the same month is suspect.
5. We further notice that despite an averment in paragraph 14 of this OP(F.C) that: "Thus, transfer petition to have the O.P 154/202 also transferred to have it tried and disposed along with O.P 562/2019 was allowed without any objection from the respondent"; there is no such direction in Ext.P8 judgment. Here we notice that Tr.P(C) 202/2020 was filed by the petitioner-wife seeking transfer of the O.P for declaration filed in the year 2020, to Thiruvalla. In fact, the interim order at Ext.P7 issued on 18.03.2020 in the Tr.P(C) specifically indicates the petitioner having sought for stay of OP No.561/2019 and O.P No. 562/2019 which were the petitions filed by the respondent,transferred and pending before the Family Court, Thiruvalla. The stay sought for was also granted. Hence obviously the petitioner could have sought for transfer and joint trial in the transfer petition.
6. The Tr.P(C) 202/2020 was heard along with Tr.P(Crl.) 15/2019 which sought for transfer of MC 169/2018 O.P.(FC) No.471 of 2020 -6- pending before the Family Court Pathanamthitta. The Court which disposed of both the transfer petitions, in Ext.P8 common judgment, however did not grant relief of joint trial. There is also no argument seen to have been addressed on that ground. This Court called for the judges papers of Tr.P(C) 202/2020 and perused the same. The specific ground for transfer raised in Ground C is that, if O.P 562/2019 is tried and disposed then it would prejudice the petitioners contentions in the fresh suit. The prayer having been made once before the High Court and having not been pressed nor liberty taken to agitate it before the Family Court; the petitioner cannot raise it at this stage. The petitioner cannot now seek joint trial of an O.P instituted much later; especially when the contentions raised now of absolute title ought to have been raised in the O.P filed for partition.
7. The petitioner was aware of the partition sought by the respondent-husband of the very same residential property; which now the petitioner-wife claims for herself. We reject the contention of the petitioner that a counter claim was not raised in the other case since the proceedings were stayed in the transfer petition, since a stay of proceedings would not prevent the petitioner from raising a counter claim in that suit. At the risk of repetition, the petitioner having raised that plea in the transfer petition also did not press it before this Court.
O.P.(FC) No.471 of 2020 -7-
8. We also do not think that Family Court in passing the impugned order was governed solely by the stipulation of time made by this Court, for disposal of the OP filed by the respondent-husband. The Family Court specifically noticed that the evidence in OP 562/2019 is almost completed and if joint trial is ordered the evidence will have to be reopened and the witnesses re-examined. The time stipulation made by the High Court was also noticed. Again it was alertly observed that the petitioner had not thought it fit to seek for joint trial in Tr.P(C) No. 202/2020. The argument of the respondent husband that aptly the wife should have raised a counter claim, was also taken note of. We find no reason to interfere with the impugned order and we reject the original petition finding no bonafides on the petitioner to seek for a joint trial. Original petition dismissed without any order as to costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
M.R.ANITHA JUDGE jma O.P.(FC) No.471 of 2020 -8- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 27/6/2018 IN TR.P(CRL) 11/2018 ON THE FILES OF THIS HONOURABLE COURT.
EXHIBIT P2 A TRUE COPY OF THE O.P.NO.1247/2018 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, PATHANAMTHITTA.
EXHIBIT P3 A TRUE COPY OF THE COMMON ORDER DATED 4/9/2019 IN TR.P.(C) 77/2019 AND TR.P(C) 82/2019 ON THE FILES OF THIS HONOURABLE COURT.
EXHIBIT P4 A TRUE COPY OF THE O.P.NO.154/2020 ON THE FILES OF THE FAMILY COURT, PATHANAMTHITTA.
EXHIBIT P5 A TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 25/2/2020 FILED BY THE RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION.
EXHIBIT P6 A TRUE COPY OF THE MEMORANDUM OF TRANSFER PETITION NO.202/2020 ON THE FILES OF THIS HONOURABLE COURT.
EXHIBIT P7 A TRUE COPY OF THE INTERIM ORDER DATED 18/03/2020 IN TR.P(C) NO.202/2020 ON THE FILES OF THIS HONOURABLE COURT.
EXHIBIT P8 A TRUE COPY OF THE COMMON JUDGEMENT DATED 19/08/2020 IN TR.P(C) 2020/2020 AND TR.P(CRL) 15/2019 ISSUED BY THIS HONOURABLE COURT. EXHIBIT P9 A TRUE COPY OF THE PETITION AND AFFIDAVIT IN I.A.1/2020 IN O.P.280/2020.
EXHIBIT P10 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.1/2020 IN O.P.280/2020. EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 15/10/2020 IN I.A.NO.1/2020 IN O.P.280/2020 ON THE FILES OF THE FAMILY COURT, THIRUVALLA.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1A THE TRUE COPY OF THE PETITION IN OP NO.727/2018 BEFORE THE FAMILY COURT , PATHANAMTHTTA (NOW PENDING AS O.P. NO. 562/2019 ON THE FILE OF FAMILY COURT, THIRUVALLA) EXHIBIT R2B THE TRUE COPY OF THE PROCEEDINGS IN OP NO.727/2018 ON THE FILE OF FAMILY COURT PATHANAMTHITTA) EXHIBIT R1C THE TRUE COPY OF THE PROCEEDINGS IN IO NO561/2019 ON THE FILE OF FAMILY COURT O.P.(FC) No.471 of 2020 -9- THIRUVALLA (FORMER OP (HMA) NO.1247/2018 ON THE FILE OF FAMILY COURT PATHANAMTHITTA) EXHIBIT R1D THE TRUE COPY OF THE PROCEEDINGS IN IP NO.154 / 2020 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA EXHIBIT R1E THE TRUE COPY OF THE PROCEEDINGS IN OP NO.280/2020 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA EXHIBIT R1F TRUE COPY OF THE COMMON ORDER OF THIS COURT IN I.A.NO.1/2020.TRPC NO 202/2020 A & CONNECTED CASES