Prasanna Kumari vs M.N.Jayaprakash
2021 Latest Caselaw 493 Ker

               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
                                           -2-

               K. Vinod Chandran & M.R.Anitha, JJ.
              -------------------------------------
                    O.P. (FC) No.471 of 2020
               ------------------------------------
            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

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

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

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

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

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

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

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