Shaju M P vs Shibi K.U
2021 Latest Caselaw 22180 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                      &
               THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
    FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                         OP (FC) NO. 494 OF 2021
 AGAINST THE ORDER/JUDGMENT IN IA 6/2021 IN OP 599/2017 OF FAMILY
                     COURT, MUVATTUPUZHA, ERNAKULAM
PETITIONERS:

    1       SHAJU M P, AGED 52 YEARS, S/O PAILY, MARATTU HOUSE,
            KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE,
            KUNNATHUNADU, ERNAKULAM DISTRICT-682 311.

    2       PAILY, AGED 85 YEARS, S/O MATHAI, MARATTU HOUSE,
            KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE,
            KUNNATHUNADU, ERNAKULAM DISTRICT-682 311.

    3       SOSAMMA, AGED 82 YEARS, W/O PAILY, MARATTU HOUSE,
            KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE,
            KUNNATHUNADU, ERNAKULAM DISTRICT-682 311.

            BY ADVS.
            ALIAS M.CHERIAN
            K.M.RAPHY
            ANJALY ELIAS
            NEENU ANNA BABU
            BRISTO S PARIYARAM


RESPONDENT:

            SHIBI K.U, AGED 42 YEARS, D/O UTHUPPU, KADAMPELIL,
            KEEZHILAM, AIKKARANADU SOUTH VILLAGE, KUNNATHUNADU,
            ERNAKULAM DISTRICT-682 311.

            BY ADVS.
            K.K.JYOTHILAKSHMY
            SUJESH J.MATHEW


     THIS     OP   (FAMILY   COURT)   HAVING   BEEN   FINALLY   HEARD   ON
05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (FC) NO. 494 OF 2021
                                      2


                            JUDGMENT

A. Muhamed Mustaque, J

This original petition is filed challenging an order allowing

an amendment petition in a pending matter before the Family

Court, Muvattupuzha.

2. The main petition is for return of gold ornaments and

money instituted by the petitioner.

3. The claim originally was made for recovery of a sum

of Rs.32,00,000/- with interest and also for recovery of 30

sovereigns of gold ornaments.

4. It was specifically pleaded that the 1st petitioner

withdrew Rs.30,00,000/- from the bank account of the

respondent.

5. The trial in this case appears to have been started in

the year 2019 and altogether eight witnesses were examined.

6. An amendment petition was filed, after examination

of all the witnesses, by the respondent herein, to amend the relief OP (FC) NO. 494 OF 2021

portion. The relief sought to be amended is for recovery of

Rs.40,40,010/-. According to the respondent, it was necessitated

after adducing evidence. As revealed from the ledger extract of

the respondent, it is seen that the 1st petitioner had withdrew

Rs.40,40,010/- from her account. The Family Court allowed the

request on payment of cost of Rs.2,000/-.

7. The learned counsel for the petitioners submitted that

amendment as such allowed would prejudice the petitioners

inasmuch as that evidence on their side as well as the

respondent's side has already been completed. It is further

submitted that such an amendment is beyond the scope of the

Code of the Civil Procedure. The learned counsel for the

respondent defended the order and submits that the amendment

was necessitated on account of the revelation of the details of the

withdrawal of the amount from X2 to X4. It is further submitted

that these withdrawal of the amounts was not within the

knowledge of the respondent at the time of filing the petition.

8. This order is questioned invoking the power of this OP (FC) NO. 494 OF 2021

Court under Article 226 of the Constitution of India. We may

not be justified in interfering with an order of this nature

invoking the supervisary power unless glaring illegality

committed by the Family Court in exercise of its jurisdiction. At

the same time, we have to safeguard the interest of the

petitioners inasmuch as that if any prejudice has been resulted

from such amendment, this Court will have to eschew or discard

such evidence which has been let in based on such amendment.

Appreciation of the evidence in this regard will come at the later

stage after letting parties to raise pleadings and allowing to

adduce evidence. The Family Court can very well appreciate this

evidence and find out any prejudice has been caused to the

petitioners on account of allowing the amendment. Allowing the

amendment and the prejudice in evidence are two different

facets of the proceedings. Merely an amendment has been

allowed that doesn't mean the evidence sought to be adduced by

such amendment will cause prejudice to the respondent. The

amendment is necessitated on account of the fact that the OP (FC) NO. 494 OF 2021

amendment is required to decide the fact in issue. The Family

Court, therefore, has to safeguard whether any evidence to be

adduced based on such amendment will cause prejudice to the

petitioners or not. We, therefore, are of the view that the order

can be sustained subject to the observation made by us as above.

This original petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

SOPHY THOMAS

JUDGE

PR OP (FC) NO. 494 OF 2021

APPENDIX OF OP (FC) 494/2021

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION NO.599 OF 2017 FILED BEFORE THE FAMILY COURT, MUVATUPUZHA.

Exhibit P2 TRUE COPY OF COUNTER AFFIDAVIT FILED IN ORIGINAL PETITION NO.599 OF 2017.

Exhibit P3 TRUE COPY OF PETITION I.A. NO,. 6 OF 2021 FILED BY THE PETITIONER.

Exhibit P4 TRUE COPY OF COUNTER AFFIDAVIT IN IA.A NO.6 OF 2021.

Exhibit P5 CERTIFIED COPY OF THE IMPUGNED ORDER DATED 23.09.2021 IN I.A. NO.6 OF 2021 IN OP NO.599 OF OF 2017 THE FAMILY COURT, MUVATTUPUZHA.