Sunil vs Remya Reghunathan
2021 Latest Caselaw 3688 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                     &

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                       Mat.Appeal.No.683 OF 2014

   AGAINST THE JUDGMENT IN O.P.No.1153/2010 DATED 26-03-2014 OF
                      FAMILY COURT, KOTTAYAM


APPELLANT/S:

      1         SUNIL, AGED 30 YEARS, S/O.KUTTAPPAN,
                PULLATTUTHAKIDIYIL HOUSE, ANICKADU VILLAGE, KOTTAYAM
                TALUK-686503.

      2         KUNJAMMA, W/O.KUTTAPPAN, PULLATTUTHAKIDIYIL HOUSE,
                ANICKADU VILLAGE, KOTTAYAM TALUK-686503.

      3         RAJAN, AGED 50 YEARS, S/O.KUTTAPPAN,
                PULLATTUTHAKIDIYIL HOUSE, ANICKADU VILLAGE, KOTTAYAM
                TALUK-686503.

                BY ADVS.
                SRI.C.S.MANILAL
                SRI.S.NIDHEESH

RESPONDENT/S:

                REMYA REGHUNATHAN, AGED 26 YEARS,
                D/O.LATE REGHUNATHAN, KALAYILPARAMBIL HOUSE,
                ANICKADU VILLAGE, KOTTAYAM TALUK.

                R1 BY ADV. SRI.RAJEEV V.KURUP

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.683/2014               2




                                JUDGMENT

Dated this the 2nd day of February 2021

A.Muhamed Mustaque, J.

The appellants are the respondents in

O.P.No.1153/2010 on the file of the Family Court,

Kottayam at Ettumanoor. The said original petition

was filed for declaration of title, recovery of

possession and injunction, both prohibitory and

mandatory. The above original petition was allowed

in part.

2. The brief facts involved in this case are as

follows:

The first appellant married the respondent on

10.05.2003. Thereafter, the respondent filed

O.P.No.879/2009 for divorce. Along with the

aforesaid original petition, the respondent also

filed O.P.No.880/2009 for return of gold ornaments.

In that claim, the appellants raised a counter

claim for declaration of title of the plaint

schedule property which is the subject matter of

the present petition before the Family Court. The

matters were tried together. O.P.No.879/2009 was

allowed granting divorce. That has become final.

The claim of the respondent in O.P.No.880/2009 was

allowed in part and she was given decree of

realisation of Rs.50,000/- and also she was allowed

to recover 12 sovereigns of gold ornaments or its

value with 7% interest.

3. The counter claim filed by the appellants

seeking declaration was dismissed. There was a

challenge against allowing the claim in

O.P.No.880/2009 and dismissing the counter claim at

the instance of the appellants. It is submitted at

the Bar that those appeals have also been

dismissed.

4. In the counter claim filed by the

appellants in O.P.No.880/2009, there is a finding

by the Family Court that subject matter of the

present original petition belongs to the

respondent. That finding has now become final. In

the light of the finding, the Family Court granted

decree as sought by the respondent. Assailing the

decree, the present appeal is filed.

5. The learned counsel for the appellants

would argue that the Family Court ought to have

rejected the relief sought for as there was an

omission on the part of the respondent to include

the relief now sought in the earlier petition filed

by her in O.P.No.880/2009. According to the

learned counsel, when the appellants raised a

counter claim, a cause of action arose to the

respondent to include the claim now made before the

Family Court.

6. The learned counsel for the respondent,

defending the impugned judgment, argued that the

earlier claim made by the respondent was only for

return of gold ornaments and value and no cause of

action arose for recovery of possession. Therefore,

is a distinct cause of action and it cannot be

clubbed with the cause of action of return of gold

ornaments. It is submitted that if such reliefs

were sought jointly, the original petition itself

would have been dismissed for misjoinder of cause

of action.

7. Order II Rule 2(1) of the Code of Civil

Procedure, 1908 states that every suit shall

include the whole of the claim which the plaintiff

is entitled to make in respect of the cause of

action. Order II Rule 2(2) further states that

where a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his

claim, he shall not afterwards sue in respect of

the portion of his claim, so omitted or

relinquished. Therefore, the argument of the

appellants is that when cause of action arose to

the respondent in an earlier suit for return of

gold ornaments, omission on the part of the

respondent to include a relief for declaration and

recovery of possession would entail subsequent suit

hit by Order II Rule 2.

8. The suit for return of gold ornaments

given during the marriage is a distinct cause of

action as far as the immovable property is

concerned. Merely for the reason that the

appellants had raised a counter claim in that

petition for return of gold ornaments by way of a

counter claim seeking declaration of the property,

that will not attract Order II Rule 2. The cause of

action is not defined under the Code of Civil

Procedure. The cause of action means a bundle of

facts giving rise to the action. The wife has

chosen only to include such prayers in relation to

movable properties belonging to her. She had not

sought any relief or put forward any claim based on

the immovable property stands in her name.

Therefore, the Family Court rightly found that the

subsequent suit initiated by the respondent is not

hit by Order II Rule 2.

9. It is to be noted that the plaintiff is

the master of the suit. The defendants cannot

dictate on reliefs to be included in the suit. No

doubt, if such reliefs sought in the subsequent

petition was available and was part of the earlier

reliefs sought, necessarily, Order II Rule 2 would

have come into play. In this case, the relief

sought in the earlier petition was in relation to

movable properties and no relief was sought in

respect of immovable property. In such

circumstances, the Family Court was justified in

overruling the objection of the appellants based on

Order II Rule 2. In view of the fact that the

finding in earlier counter claim on title, would

operate as resjudicata, there was no difficulty for

the Family Court to hold that the respondent is the

title holder of the property. Admittedly, the

possession is with the appellants. Therefore, the

Family Court was justified in granting reliefs as

sought in the petition. We find no merit in this

appeal. Accordingly, The appeal fails and

accordingly, it is dismissed. No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

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