OP(C) NO. 1179 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(C) NO. 1179 OF 2022
AGAINST THE ORDER DATED 25.5.2022 IN OS 260/2019 OF III
ADDITIONAL SUB COURT, ERNAKULAM
PETITIONER/FIRST DEFENDANT:
JAMES SHELTON [email protected]
AGED 29 YEARS
S/O. SHELTON ZAVIOUR
RESIDING AT VAIKATHU HOUSE, PATHANAMTHITTA P.O
PATHANAMTHITTA DISTRICT, PIN - 689645
BY ADVS.
V.PHILIP MATHEWS
GIBI.C.GEORGE
RESPONDENT/PLAINTIFF:
SUSAN SARISH SUNNY
AGED 41 YEARS
D/O. MATHEWS THARAKAN MATHEWS
RESIDING AT 107-0,TOWER 1 GOLDEN GATES ,MLA
ROAD,PALACHUVADU, KAKKANAD, KOCHI, PIN - 682030
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1179 OF 2022
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JUDGMENT
The petitioner assails the order dated 25.5.2022 in I.A No.9/2022 in O.S. No.260/2019 (Ext.P5) passed by the Court of the Subordinate Judge, Ernakulam, in this original petition.
2. The petitioner's case, in brief, relevant for determination of the original petition is that, he is the 1 st defendant in the suit, which is filed by the respondent for realisation of money. Service of summons in the suit is not complete on the 2nd defendant, who is none other than the mother of the petitioner. The respondent has alleged in Ext.P1 plaint, that the petitioner and his mother owe her money. The petitioner has filed Ext.P2 written statement refuting the allegations in Ext.P1 plaint. Even though summons was sent to the petitioner's mother - the 2 nd defendant - in the suit, the same has returned with an OP(C) NO. 1179 OF 2022 3 endorsement that the 2nd defendant has left India and is residing in Canada. The respondent then filed Ext.P3 application, to direct the petitioner to furnish the address of his mother to enable the respondent to take steps to issue summons to the 2nd defendant. The petitioner had filed Ext.P4 counter affidavit to Ext.P3 application, inter alia, contending that there is no provision in law enabling the respondent to adopt the above course and compel the petitioner to provide the address of the 2 nd defendant. Nevertheless, the court below, without adverting to Ext.P4 counter affidavit, has by the impugned Ext.P5 order allowed Ext.P3 application and directed the petitioner to furnish the address of the 2nd defendant. Ext.P5 order is erroneous and unsustainable in law. Hence the original petition.
3. Heard;Gibi.C.George, the learned counsel appearing for the petitioner on admission. OP(C) NO. 1179 OF 2022 4
4. The point that arises for consideration in this original petition is whether there is any error in Ext.P5 order passed by the court below?
5. Undisputedly, the respondent has filed Ext.P1 plaint as against the petitioner and the 2 nd defendant who is none other than the mother of the petitioner. The respondent has sought for a decree to recover an amount of Rs.40,69,330/- with interest and cost from the defendants. In Ext.P1, the respondent has shown the address of both the petitioner and the 2 nd defendant as 'Vaikathu House, Pathanamthitta P.O, Pathanamthitta - 689 645'. The respondent had taken steps to effect service of notice on the 2nd defendant in the above address. However, the notice was returned with an endorsement that the 2nd respondent is 'outside India'.
6. During the interregnum, the petitioner had filed I.A No.7/2022 to delete the name of the 2 nd defendant from the party array in the plaint, on the allegation that she is OP(C) NO. 1179 OF 2022 5 an unnecessary party. The court below has dismissed the said application. Then, the respondent pointing out the fiduciary relationship between the petitioner and the 2 nd defendant had filed Ext.P3 application, to direct the petitioner to furnish the 2nd defendant's address abroad. At that time, the petitioner took a volte face and filed Ext.P4 counter affidavit, inter alia, contending that after the institution of Ext.P1 plaint, the petitioner's mother had expressed her displeasure towards him and his mother is in Canada for the last six years. Therefore, there is no necessity for him to have the postal address of his mother. Hence, the application may be dismissed.
7. The court below, after considering Ext.P3 application and Ext.P4 objection, has directed the petitioner to furnish the 2nd defendant address abroad, to enable the respondent to take steps to effect summons on the 2nd defendant.
OP(C) NO. 1179 OF 2022 6
8. It is to be markedly noted that the petitioner himself had filed I.A 7/2022 before the court below, to strike off the name of the 2nd defendant from the party array in the plaint. It was only after the respondent had filed Ext.P3 application, that the petitioner has come up with the allegation that his mother had expressed her displeasure towards him. Nonetheless, he does not have a case that he is unaware of the address of his mother or that his relationship with his mother is strained.
9. The pivotal contention of the petitioner is that there is no enabling provision in the Code of Civil Procedure, 1908, permitting the respondent to seek the address of the 2nd defendant from the petitioner.
10. The above contention is untenable. The inherent power of the Courts under Section 151 of the Code of Civil Procedure, 1908, is high and wide. It is to do complete justice and meet to exigencies like the one on hand, that the legislature has conferred the inherent powers on the OP(C) NO. 1179 OF 2022 7 Courts. In the light of the fiduciary relationship of the petitioner with the 2nd respondent, he is bound to furnish the address of his mother. The evasive reply furnished by the petitioner in Ext.P4 objection, leads this Court to perceive that the ulterior intention of the petitioner is to shelter his mother. Ultimately, it is the majesty of the Court that prevails, especially on being convinced that the petitioner is deliberately evading to furnish the address of the 2nd defendant. The court below was totally justified in directing the petitioner to furnish the address of the 2 nd defendant, so that summons in the suit can properly be served on the 2nd defendant, instead of effecting substituted service of notice. I do not find any illegality or irregularity in the course adopted by the court below. There is no ground made out warranting interference with Ext.P5 order under Article 227 of the Constitution of India. OP(C) NO. 1179 OF 2022 8 The original petition is devoid of any merits and is hence dismissed.
Sd/-
C.S.DIAS
ma/6.7.2022 JUDGE
OP(C) NO. 1179 OF 2022
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APPENDIX OF OP(C) 1179/2022
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE PLAINT IN O.S NO. 260/2019
Exhibit P2 COPY OF THE WRITTEN STATEMENT OF THE
PETITIONER IN O.S NO. 260/2019
Exhibit P3 COPY OF I.A.NO. 9/2022 FILED BY THE
RESPONDENT
Exhibit P4 COPY OF THE AFFIDAVIT FILED BY THE
PETITIONER AGAINST EXHIBIT P3
Exhibit P5 COPY OF THE ORDER DATED 25-05-2022 PASSEDC
BY THE SECOND ADDITIONAL SUB-COURT ,
ERNAKULAM IN I.A . 9/2022 IN O.S NO.
260/2019