Kerala High Court
Jose Lopez vs Stbert Kumar on 24 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
OP (FC).No.11 OF 2020
AGAINST THE ORDER IN IA NO.2453/2018 IN OP 127/2013 OF FAMILY
COURT,THIRUVANANTHAPURAM
PETITIONER/PETITIONER:
JOSE LOPEZ
AGED 33 YEARS
S/O PLASIT LOPEZ,MINI HOUSE,OOTTICKAL PARAMBU,NEAR
VIZINJAM OLD BRIDGE,
KOTTAPPURAM.P.O,VIZINJAM,THIRUVANANTHAPURAM.
BY ADV. SMT.M.HEMALATHA
RESPONDENTS/COUNTER-PETITIONERS:
1 STBERT KUMAR
S/O RAJENDRAN,ST.JUDE
HOME,KOTTAPPURAM.P.O,VIZINJAM,
THIRUVANANTHAPURAM-695521.
2 STEFEENA JASEENTH,
D/O STBERT KUMAR,ST.JUDE HOME,
KOTTAPPURAM.P.O, VIZINJAM,THIRUVANANTHAPURAM-
695521.
3 CHRISTUHUDAS,
S/O STBERT KUMAR,ST.JUDE HOME,
KOTTAPPURAM.P.O, VIZINJAM,THIRUVANANTHAPURAM-
695521.
4 FERIYA STBERT,
D/O STBERT KUMAR,ST.JUDE HOME,
KOTTAPPURAM.P.O,VIZINJAM,
THIRUVANANTHAPURAM-695521.
R1 BY ADV. SMT.K.DEEPA (PAYYANUR)
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19-03-
2021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:
OP(FC) No.11/2020
-:2:-
JUDGMENT
Dated this the 24th day of March, 2021
Dr.Kauser Edappagath, J.
This Original petition has been filed challenging the
dismissal of the application for amendment of the written
statement filed by the husband.
2. O.P.No.127/2013 of the Family Court,
Thiruvananthapuram has been filed by the parents of the
deceased wife against the husband for recovery of gold
ornaments and money. The Original petition is of the year 2013.
The husband filed written statement as early as on January, 2014.
After the trial was commenced, the husband filed IA
No.2453/2018 to amend the written statement. The amendment
sought for was mainly to retract the admission made by the
husband that the parents of the wife had given 50 sovereigns of
gold ornaments and `2 lakh as pocket money to the wife at the
time of marriage. Few other amendments were also sought to be
incorporated. The said application was dismissed by the court
OP(FC) No.11/2020
below as per Ext.P4 order. The said order is under challenge in
this Original Petition.
3. Heard both sides.
4. The learned counsel for the petitioner submitted that
the Court should be liberal in allowing the petition for
amendment especially in a case of amendment of written
statement and inasmuch as the pleadings sought to be
incorporated by way of amendment were brought to notice only
during the trial, the delay in preferring amendment application
ought to have been condoned and amendment ought to have
been allowed by the Court below. The learned counsel for the
respondents, on the other hand, submitted that the facts sought
to be introduced by way of amendment were within the
knowledge of the petitioner and since the petition was filed after
the commencement of the trial, the petition for amendment is hit
by the proviso to Order VI Rule 17 of the C.P.C.
5. The wife committed suicide. The petitioners before the
Court below are the parents of the wife. There was a criminal
case against the husband, his mother and siblings as SC
No.1419/2015 before the Additional Sessions Judge-V,
OP(FC) No.11/2020
Thiruvananthapuram regarding the suicide committed by the
wife. According to the husband, during the course of evidence in
the said case, it was revealed that some of the gold ornaments
belonged to the wife were imitation gold ornaments. Hence, he
wanted to withdraw his admission in the written statement that
the parents of the wife gave her pure gold ornaments at the time
of marriage. Some more amendments were also canvassed by
the husband. All the amendments were necessitated, according
to the husband, on account of certain facts revealed in the
evidence in SC No.1419/2015. The Court below on analysis of the
pleadings and evidence brought out, came to the conclusion that
the facts sought to be introduced by the husband were within his
knowledge even at the time of filing the written statement. The
amendment application was filed after giving oral evidence by
both sides. At the time of filing written statement, the wife was
not alive. The husband was well aware of the properties which
belonged to the deceased wife. Hence, those factors could have
been pleaded in the original written statement itself.
6. Even according to the husband, the amendment was
necessitated owing to certain facts brought out in evidence.
OP(FC) No.11/2020
Thus, even without amendment, he can agitate all those matters
during trial. As per the proviso to Order VI Rule 17 of CPC, no
new amendment of pleadings shall be allowed to be made after
the commencement of trial, unless the party seeking for
amendment convinces the Court that in spite of due diligence, he
could not have raised all those matters sought to be incorporated
by way of amendment before starting trial. As rightly held by the
Court below, the petitioner could not show that he was prevented
from making those contentions at the time of filing the written
statement. Yet another pleading sought to be incorporated by
way of amendment is regarding the maintainability of the Original
Petition. According to the husband, after the death of his wife, the
petitioners, who were the parents of the wife, lost the status of
"parties to the marriage" to institute the original petition. The
cause of action agitated in the suit is connected with the
matrimonial relationship between the appellant and the
respondent. Hence, it will fall within Explanation (d) to S.7(1) of
the Family Courts Act, 1984, because it is a suit filed, seeking an
order in the circumstances arising out of the marital relationship.
It is true that liberal principles should guide the exercise of
OP(FC) No.11/2020
discretion in allowing the amendment. But it is equally settled
that care should be taken to see that injustice and prejudice are
not inflicted upon opposite party under the pretence of
amendment.
For the reasons stated above, we find no reason to interfere
with Ext.P4 order in the exercise of our jurisdiction under Art.227
of the Constitution of India. Accordingly, the Original petition is
dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
Rp JUDGE
OP(FC) No.11/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.127
OF 2013 BEFORE THE FAMILY
COURT,THIRUVANANTHAPURAM FILED ON
28.01.2013.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT
DATED 05.03.2014.
EXHIBIT P3 TRUE COPY OF THE I.A.NO.2453 OF 2018 IN
O.P.NO.127 OF 2013 BEFORE THE FAMILY
COURT,THIRUVANANTHAPURAM DATED
23.07.2018.
EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A.NO.2453
OF 2018 IN O.P.NO.127 OF 2013 BEFORE
THE FAMILY COURT,THIRUVANANTHAPURAM
DATED 04.10.2019.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT IN I.A.NO. 2453/2018.
