Sheela vs Adv.James Antony
2021 Latest Caselaw 18295 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                               &
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                    OP (FC) NO. 494 OF 2020
  AGAINST THE ORDER IN IA NO.5/2020 DATED 6/11/2020 IN OP
        973/2012 OF FAMILY COURT, IRINJALAKUDA, THRISSUR
PETITIONER/FIRST RESPONDENT:

           ADV. JAMES ANTONY
           AGED 64 YEARS
           S/O. MANIYAMKOTTU ANTONY, KUMBALAM, DESOM,
           ERNAKULAM DISTRICT 682 506.

           BY ADV. JAMES ANTONY(Party-In-Person)



RESPONDENTS/PETITIONERS & 2ND AND 3RD RESPONDENTS:

    1      SHEELA
           AGED 59 YEARS
           D/O. PULLELY POULOSE, MURINGOOR DESOM, MURINGOOR
           VADAKKUMURY VILLAGE, MUKUNDAPURAM TALUK, 680 316,
           NOW RESIDING AT SHEELA JAMES, FLAT NO. C 302,
           GOKUL HORIZON, THAKUR VILLAGE, KANDIVALI EAST,
           MUMBAI, 400 101. MAHARASHTRA STATE.

    2      ROSHAN,
           AGED 32 YEARS
           D/O. SHEELA AND JAMES, RESIDING AT C/O. SHEELA
           JAMES, FLAT NO. C. 302, GOKUL HORIZON, THAKUR
           VILLAGE, KANDIVALI EAST, MUMBAI, 400 101.
           MAHARASHTRA STATE.
 OP(FC) Nos.494/2020 & 251/2021
                                 -:2:-



    3     JAYAN,
          AGED 63 YEARS
          S/O. CHAMMANIKODATHU PAUL ALUVA DESOM, ALUVA WEST
          VILLAGE, ALUVA TALUK 683 101.

    4     MARTIN,
          AGED 51 YEARS
          S/O. PALAKKAL THOMMI, ERUMATHALA P.O. ERUMATHALA
          KARA, ALUVA EAST, VILLAGE, 683 105.

          BY ADV SMT.K.DEEPA (PAYYANUR)
          ADV.SRI.K.P.SREEKUMAR, AMICUS CURIAE



     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
07.09.2021, ALONG WITH OP (FC).251/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 OP(FC) Nos.494/2020 & 251/2021
                                 -:3:-



           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                    &
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                     OP (FC) NO. 251 OF 2021
 AGAINST THE ORDER IN IA NOS.2/2020, 11/2020 AND 12/2020 IN
     OP 973/2012 OF FAMILY COURT, IRINJALAKUDA, THRISSUR
PETITIONER/PETITIONER:

          SHEELA
          AGED 59 YEARS
          D/O.PULLERI POULOSE, MURINGOOR DESOM, MURINGOOR
          VADAKKUMMRI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR
          (DIST). PIN 680 316

           BY ADV K.DEEPA (PAYYANUR)




RESPONDENTS/RESPONDENTS:

    1     ADV.JAMES ANTONY
          AGED 64 YEARS
          S/O.MANIYAMKOTTU ANTONY, KUMBALAM DESOM,
          ERNAKULAM (DIST). PIN 682 506

    2     JAYAN
          AGED 63 YEARS
          S/O.CHAMMANIKODATHU PAUL, ALUVA DESOM,
          ALUVA WEST VILLAGE, ALUVA TALUK, PIN 683 101,
          ERNAKULAM (DIST).
 OP(FC) Nos.494/2020 & 251/2021
                                 -:4:-



    3     MARTIN
          AGED 51 YEARS
          S/O.PALAKKAL THOMMAN, ERUMATHALA (P.O.),
          ERUMATHALA KARA, ALUVA EAST VILLAGE,
          ERNAKULAM (DIST). PIN 683 105

    4     ROSHAN
          AGED 32 YEARS
          D/O.SHEELA, MURINGOOR DESOM, MURINGOOR VADAKKUMMRI
          VILLAGE, MUKUNDAPURAM TALUK,
          THRISSUR (DIST) PIN 680 316



     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
07.09.2021, ALONG WITH OP (FC).494/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 OP(FC) Nos.494/2020 & 251/2021
                                 -:5:-




                          J U D G M E N T

Dated this the 7th day of September, 2021

Kauser Edappagath, J.

These original petitions have been filed challenging the

order in IA No.2/2020 dated 16/7/2020, orders dated 6/11/2020 in

IA No.5/2020 in IA No.2/2020, IA No.11/2020 in IA No.2/2020 and

IA No.12/2020 in IA No.2/2020 in OP No.973/2012 on the file of

the Family Court, Irinjalakuda (for short, 'the court below').

2. The wife and daughter filed original petition against

the husband and his two brother-in-laws as OP No.973/2012

before the court below. The prayer in the original petition was to

declare a sale deed executed by her husband in favour of his

brother-in-laws, who were arrayed as respondent Nos.2 and 3, as

a sham document and also claiming an amount of `15,00,000/-

from the husband towards the educational and marriage

expenditure of the daughter, who was arrayed as the 2 nd

petitioner. During the pendency of the proceedings, the husband

filed IA No.2/2020 before the court below seeking leave of the

court to administer interrogatories separately to the wife and OP(FC) Nos.494/2020 & 251/2021

daughter. The questions were related to the employment and

salaries of the wife and daughter. The said petition was allowed

by the court below as per order dated 18/3/2020 and the wife and

daughter were directed to answer the interrogatories within two

weeks. But the wife and daughter failed to answer the

interrogatories as directed. Thereafter, the husband filed IA

No.5/2020 under Order XI Rule 21 of Civil Procedure Code (for

short, 'C.P.C') to dismiss the OP itself for want of prosecution. The

court below as per order dated 16/7/2020 closed IA No.2/2020

observing that adverse inference will be drawn against the wife

and daughter since they failed to answer the interrogatories.

Thereafter, the wife filed petition to review the order with a

petition to condone the delay as IA No.12/2020 and IA

No.11/2020. Both those petitions were also dismissed. The

petition filed by the husband as IA No.5/2020 to dismiss the

original petition itself for want of prosecution was also dismissed

as per order dated 6/11/2020. In OP(FC) No. 494/2020 filed by

the husband, the order in IA No.5/2020 dated 6/11/2020 is under

challenge. In OP(FC) No.251/2021 filed by the wife, orders in IA

Nos.2/2020 dated 16/7/2020, IA No.11/2020 dated 6/11/2020 OP(FC) Nos.494/2020 & 251/2021

and IA No.12/2020 dated 6/11/2020 are under challenge.

3. Heard both sides and perused the records.

4. The order passed by the court below directing the wife

and daughter to answer the interrogatories filed by the husband

was not complied with. Order XI Rule 21 of CPC deals with non

compliance with the order to answer interrogatories. It provides

that where any party fails to comply with any order to answer

interrogatories, he shall, if a plaintiff, be liable to have his suit

dismissed for want of prosecution, and, if a defendant, to have

his defence, if any, struck out and to be placed in the same

position as if he had not defended. Instead of passing an order in

tune with the said provision, the court below closed the petition

holding that adverse inference will be drawn. The said approach

of the court below is patently wrong.

5. The learned counsel for the wife and daughter

submitted that they could not answer the interrogatories in time

since they could not meet their counsel and give necessary

instruction to answer the interrogatories due to lock down

restrictions and there was no wilful laches. The counsel submitted

that they are prepared to answer the interrogatories and comply OP(FC) Nos.494/2020 & 251/2021

with the direction of the court. Considering the entire facts and

circumstances of the case, we are of the view that a further

opportunity has to be given to the wife and daughter finally to

answer the interrogatories.

6. We, in these circumstances, set aside the order in IA

No.2/2020 dated 16/7/2020. The court below shall give an

opportunity to the wife and daughter to answer the

interrogatories within one month from the date of the receipt of

the copy of this judgment. If the wife and daughter fail to answer

the interrogatories within the said time, the court below shall

pass orders in tune with the provisions of Order XI Rule 21 of

C.P.C. The husband shall be given an opportunity to file an

application for discovery of inspection of documents, if any, after

the interrogatories are answered.

The original petitions are disposed of as above. No costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp OP(FC) Nos.494/2020 & 251/2021

APPENDIX OF OP (FC) 251/2021

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 16.1.2020 IN MAT. APPEAL NO.659/2014 OF THIS HON'BLE COURT.

EXHIBIT P2 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT, SEEKING LEAVE OF THE COURT TO ADMINISTER INTERROGATORIES, AS I.A.NO.2/2020 IN OP.NO.973/2012 OF THE FAMILY COURT.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.3.2020, ISSUING DIRECTION TO THE PETITIONERS IN I.A.NO.2/2020 OF THE FAMILY COURT, IRINJALAKUDA.

EXHIBIT P4 TRUE COPY OF THE PETITION OF I.A.NO.05/2020 FILED BY THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE PETITION OF I.A.NO.08/2020 FILED BY THE 1ST RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE PETITION OF I.A.NO.09/2020 FILED BY THE 1ST RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 16.7.2020 IN I.A.NO.2/2020 IN OP NO.973/2012.

EXHIBIT P8 TRUE COPY OF THE PETITION FILED BY THE PETITIONER TO REVIEW EXT. P7 ORDER BEFORE THE FAMILY COURT.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 6.11.2020 IN I.A.NO.11/2020 OF THE FAMILY COURT.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 6.11.2020 IN I.A.NO.12/2020 OF THE FAMILY COURT. OP(FC) Nos.494/2020 & 251/2021

APPENDIX OF OP (FC) 494/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE STATE GOVERNMENT TREASURY RECEIPT DATED 21.11.2008 FOR RS. 402300/-.

EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT PAID BY THE 3RD AND 4TH RESPONDENTS FOR THE FINANCIAL YEAR 2009 -10.

EXHIBIT P3 TRUE COPY OF THE CERTIFIED COPY OF ORDER DATED 27.05.2010 OF THE THRISSUR FAMILY COURT, DISMISSING O.P. 971/2002 AS NOT PASSED.

EXHIBIT P4 TRUE COPY OF THE O.P. 973/2012 OLD NO.

928/2010 FILED BY THE 1ST AND 2ND RESPONDENT HEREIN.

EXHIBIT P4 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/ HEREIN IN O.P. 973/2012 (OLD NO. 928/2010.

EXHIBIT P5         CERTIFIED   COPY   OF   THE   ORDER    DATED
                   01.06.2010 OF THE THRISSUR FAMILY      COURT
                   DIS   MISSION   I.A.  3688/2010   IN    O.P.
                   928/2010 (NEW NO. 973/2012).

EXHIBIT P6         TRUE COPY OF FACE BOOK PROFILE OF THE 2ND

RESPONDENT DAUGHTER SHOWING HER EMPLOYMENT DETAILS AND RESIDENCE STATUS.

EXHIBIT P7 TRUE COPY OF AFFIDAVIT FIELD BY THE 1ST RESPONDENT THROUGH HER COUNSEL BEFORE THE FAMILY COURT ADMITTING HER JOB AS LECTURER IN A COLLEGE IN MUMBAI.

EXHIBIT P8 CERTIFIED COPY OF THE INTERROGATORIES ADMINISTERED AS I.A. NO. 02/2020.

OP(FC) Nos.494/2020 & 251/2021

EXHIBIT P9 CERTIFIED COPY OF THE ORDER DATED 18.03.2020 OF IRINJALAKUDA F.C. PASSED IN I.A. NO. 02/2020 TO ANSWER THE INTERROGATORIES.

EXHIBIT P10 CERTIFIED COPY OF THE I.A. NO. 05/2020 DATED 08.06.2020.

EXHIBIT P11 TRUE COPY OF THE I.A. NO. 08/2020.

EXHIBIT P12 TRUE COPY OF THE I.A. NO. 09/2020 DATED 16.07.2020.

EXHIBIT P13 CERTIFIED COPY OF THE ORDER DATED 16.07.2020 IN I.A. NO. 02/2020.

EXHIBIT P14 TRUE COPY OF I.A. NO. 14/2020 DATED 23.10.2020.

EXHIBIT P15 TRUE COPY OF I.A. NO. 15/2020DATED 23.10.2020.

EXHIBIT P16 CERTIFIED COPY OF THE ORDER DIS MISSING I.A. NO. 05/2020 DATED 06/11/2020.

EXHIBIT P17 CERTIFIED COPY OF THE COMMON ORDER OF THE FAMILY COURT DATED 06.11.2020 DISMISSING I.A. 08/2020 AND I.A. 09/2020.

EXHIBIT P18 CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 14/2020.

EXHIBIT P19 CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 15/2020.

EXHIBIT P20 CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 11/2020. PETITION TO CONDONE DELAY.

OP(FC) Nos.494/2020 & 251/2021

EXHIBIT P21 CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 12/2020.(REVIEW PETITION)

EXHIBIT P22 TRUE COPY OF ORDER OF THIS HONBLE COURT DATED 25.11.2020 DISPOSING MAT APPEAL FILING NO. 45280/2020 AS NOT MAINTAINABLE, BUT GIVING LIBERTY TO THE PETITIONER TO FILE OP FC UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA.