Kerala High Court
Nisha Benziger vs Jijo Yohannan on 1 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 1ST DAY OF DECEMBER 2022/10TH AGRAHAYANA,
1944
MAT.APPEAL NO. 731 OF 2019
AGAINST THE JUDGMENT DATED 25.06.2019 IN O.P.NO.587 OF
2017 OF THE FAMILY COURT, KOLLAM
APPELLANT/PETITIONER:
NISHA BENSIGER, AGED 37 YEARS
D/O. BENZIGER RAPHEL, MAYYANAD VILLAGE,
VISHAKK, PULLICHIRA.P.O., KOTTIYAM, KOLLAM
BY ADVS.R.MOHANA BABU
SRI.M.AJITH (KARICODE)
RESPONDENTS/RESPONDENTS:
1 JIJU YOHANAN, AGED 39 YEARS, S/O. YOHANAN,
CHANIYIL HOUSE, KAKKOTTUMULA, MAYYAND P.O.,
KOLLAM - 691 001
2 JOYCE YOHANNAN, AGED 63 YEARS, CHANIYIL HOUSE,
KAKKOTTUMULA, MAYYANAD.P.O., KOLLAM - 691 001
BY ADV SRI.SAJU J PANICKER
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 01.12.2022, ALONG WITH OP (FC).425/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 1ST DAY OF DECEMBER 2022/10TH AGRAHAYANA,
1944
OP (FC) NO. 383 OF 2021
AGAINST THE COMMON ORDER DATED 10.03.2021 IN I.A.NOS.2915
& 2909 OF 2019 IN O.P.NO.1324 OF 2017 OF THE FAMILY
COURT, KOLLAM
PETITIONER/RESPONDENT/RESPONDENT:
NISHA BENZIGER, AGED 37 YEARS
D/O. BENZIGER RAFEL, VISHAKK,
PULLICHIRA P.O., KOLLAM.
BY ADVS.R.MOHANA BABU
M.AJITH (KARICODE)
RESPONDENT/PETITIONER/PETITIONER:
JIJO YOHANNAN, AGED 40 YEARS, S/O. YOHANNAN,
CHANIYEL HOUSE, MAYYANAD P. O., KACKOTTUMOOLA,
KOLLAM - 691303.
BY ADV SAJU J PANICKER
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 01.12.2022, ALONG WITH OP(FC).425/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 1ST DAY OF DECEMBER 2022/10TH AGRAHAYANA,
1944
OP (FC) NO.425 OF 2021
AGAINST THE COMMON ORDER DATED 10.03.2021 IN I.A.NOS.2990
AND 2991 OF 2019 IN O.P.NO.587 OF 2017 OF THE FAMILY
COURT, KOLLAM
PETITIONER/RESPONDENT/PETITIONER:
NISHA BENZIGER, AGED 37 YEARS
D/O BENZIGER RAFEL, VISHAKK,
PULLICHIRA.P.O, KOLLAM.
BY ADVS.R.MOHANA BABU
M.AJITH (KARICODE)
RESPONDENTS/PETITIONERS/RESPONDENTS:
1 JIJO YOHANNAN, AGED 40 YEARS, S/O.YOHANNAN,
CHANIYEL HOUSE, MAYYANAD.P.O, KACKOTTUMOOLA,
KOLLAM-691303.
2 JOYIS YONANNAN, AGED 65 YEARS
CHANIYEL HOUSE, MAYYANAD.P.O, KACKOTTUMOOLA,
KOLLAM-691303.
BY ADV SAJU J PANICKER
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 01.12.2022, ALONG WITH OP(FC)NO.383/2021 & MAT.APPEAL
NO.731/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-4-
Mat.Appeal No.731 of 2019 & con.cases
JUDGMENT
Anil K. Narendran, J.
Since common issues are raised, the above Mat.Appeal
and original petitions are heard together and are being
disposed of by this common judgment.
2. Mat.Appeal No.731 of 2019:- The appellant filed
O.P.No.587 of 2017 before the Family Court, Kollam against
the respondents herein (husband and mother-in-law) for
recovery of 65 sovereigns of gold ornaments or its value to
the tune of Rs.13,00,0000/- with interest at the rate of 6%
per annum and also an amount of Rs.9,35,000/- as shown in
the memo of account, with interest at the rate of 6% per
annum. The said original petition was allowed in part by the
judgment dated 25.06.2019. The operative portion of the said
judgment reads thus;
"1) The petitioner is entitled to recover 65 sovereigns of
gold ornaments or its value to the tune of
Rs.13,00,000/- with interest at the rate of 6% per
annum from the date of petition till realization from
the 1st respondent and his assets.
2) The petitioner is entitled to recover an amount of
Mat.Appeal No.731 of 2019 & con.cases
Rs.9,35,000/- as shown in the memo of account with
interest at the rate of 6% per annum from the date of
petition till realization from the 1st respondent and his
assets.
3) The petitioner is not entitled to declaration as claimed.
4) The petitioner is entitled to proportionate cost of the
petition."
2.1. Feeling aggrieved by the judgment and decree
dated 25.06.2019 to the extent of limiting the decree in part,
the appellant is before this Court in this appeal, invoking the
provisions under Section 19(1) of the Family Courts Act, 1984.
This appeal has been filed along with C.M.Application No.1 of
2019, seeking an order to condone the delay of 6 days.
2.2. On 01.10.2019, when this appeal came up for
admission, this Court issued notice by speed post to the
respondents in C.M.Application No.1 of 2019. The delay of 6
days is condoned by a separate order of this date.
3. O.P.(FC)No.383 of 2021:- The petitioner is the
respondent in O.P.No.1324 of 2017 on the file of the Family
Court, Kollam (originally filed as O.P.No.1021 of 2016 before
the Family Court, Chavara) which is one filed by the
Mat.Appeal No.731 of 2019 & con.cases
respondent herein-husband seeking dissolution of marriage.
The said original petition was dismissed for non-appearance of
the parties on 24.06.2019. Therefore, the respondent filed
Ext.P2 I.A.No.2915 of 2019 seeking an order to set aside the
order of dismissal, along with Ext.P3 I.A.No.2909 of 2019 for
condonation of the delay of 35 days in filing the former
application. The said applications were allowed by the
common order dated 10.03.2021 of the Family Court, on
payment of cost. The petitioner has approached this Court in
this original petition, invoking the supervisory jurisdiction of
this Court under Article 227 of the Constitution of India,
seeking an order to set aside Ext.P5 common order dated
10.03.2021 of the Family Court, Kollam in I.A.Nos.2915 and
2909 of 2019 in O.P.No.1324 of 2017. The petitioner has also
sought for a direction to the Family Court to take on file and
consider and dispose of Exts.P2 and P3 applications after
giving sufficient opportunity to petitioner to adduce evidence
and proof disproving the contention of respondent, after
setting aside Ext.P5 common order.
Mat.Appeal No.731 of 2019 & con.cases
3.1. On 21.08.2021, when this original petition came up
for admission, though this Court was not satisfied with the
relief sought for, based on the submission made by the
learned counsel for the petitioner that there is a chance for
settlement, issued notice to the respondent. By the order
dated 27.08.2021, the petitioner was directed to serve notice
on the respondent through his counsel before the Family
Court.
4. O.P.(FC)No.425 of 2021:- The petitioner filed
O.P.No.587 of 2017 before the Family Court, Kollam against
the respondents herein seeking recovery of gold ornaments
and money and for declaration of her right over the property.
By Ext.P2 ex-parte order dated 25.06.2019, the said original
petition was partly allowed. Thereafter, the respondents filed
Ext.P3 I.A.No.2990 of 2019 seeking an order to set aside the
ex-parte order, along with Ext.P4 I.A.No.2991 of 2019 seeking
an order to condone the delay of 38 days in filing I.A.No.2991
of 2019. The Family Court, by Ext.P9 order dated 10.03.2021
allowed I.A.Nos.2990 and 2991 of 2019, whereby the ex-parte
Mat.Appeal No.731 of 2019 & con.cases
order dated 25.06.2019 was set aside, on payment of cost.
The petitioner has filed this original petition invoking the
supervisory jurisdiction of this Court under Article 227 of the
Constitution of India, seeking an order to set aside Ext.P9
common order dated 10.03.2021 in I.A.Nos.2990 and 2991 of
2019 in O.P.No.537 of 2017 of the Family Court, Kollam. The
petitioner has also sought for a direction to the Family Court
to take on file and consider and dispose of Exts.P3 and P4
interlocutory applications after giving sufficient opportunity to
the petitioner to adduce evidence and proof disproving the
contention of respondents, after setting aside Ext.P9 common
order.
4.1. On 24.08.2021, when this original petition came up
for admission, this Court issued notice before admission to the
respondents by speed post. The petitioner was also permitted
to take out notice to the respondents through their counsel
before the Family Court.
5. During the pendency of these matters, by the order
of this Court dated 05.11.2021, the parties were referred for
Mat.Appeal No.731 of 2019 & con.cases
mediation before Ernakulam Mediation Centre in the premises
of this Court on 10.11.2021 at 10.30 a.m.
6. Today, when these matters are taken up for
consideration, it is submitted by the learned counsel on both
sides that now the parties have settled the disputes in out of
court settlement and they decided to live together, and they
are now residing together.
In such circumstances, recording the aforesaid fact, the
above appeal and original petitions are dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
AV/6/12
Mat.Appeal No.731 of 2019 & con.cases
APPENDIX OF OP (FC) 383/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION IN
O.P.1324/2017 OF FAMILY COURT, KOLLAM.
Exhibit P2 TRUE COPY OF THE IA 2915/2019 IN
O.P.1324/2017 OF FAMILY COURT, KOLLAM
FILED FOR SETTING ASIDE EXPARTE DECREE
AND FOR RESTORING THE CASE.
Exhibit P3 TRUE COPY OF THE IA 2909/2019 IN
O.P.1324/2017 OF FAMILY COURT, KOLLAM
FILED FOR CONDONING THE 35 DAYS DELAY
IN FILING THE PETITION TO SET ASIDE
EXPARTE DECREE.
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED
09.02.2021 IN OP(FC) 92/2021 OF THIS
HON'BLE COURT.
Exhibit P5 TRUE COPY OF THE COMMON JUDGMENT DATED
10.03.2021 IN IA 2909/2019 AND IA
2915/2019 IN O.P.1234/2017 OF THE
FAMILY COURT, KOLLAM.
Exhibit P6 TRUE COPY OF THE B DIARY IN IA
2909/2019 IN O.P.1234/2017 OF FAMILY
COURT, KOLLAM.
Exhibit P7 TRUE COPY OF THE B DIARY IN IA
2915/2019 IN O.P.1234/2017 OF FAMILY
COURT, KOLLAM.
Exhibit P8 TRUE COPY OF THE RELINQUISHING
VAKKALATH BY ADV. ANIL ELGIN THAMPI
DATED 04.06.2017.
Mat.Appeal No.731 of 2019 & con.cases
Exhibit P9 TRUE COPY OF THE JUDGMENT IN ORDER
DATED 20.02.2019 PASSED BY THIS
HON'BLE COURT IN OP(FC) 65/2019.
Mat.Appeal No.731 of 2019 & con.cases
APPENDIX OF OP (FC) 425/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION IN
O.P.587/2017 OF FAMILY COURT, KOLLAM.
Exhibit P2 TRUE COPY OF THE JUDGMENT IN
OP.587/2017 OF THE FAMILY COURT
KOILLAM DATED 25.6.2019.
Exhibit P3 TRUE COPY OF THE IA.2990/2019 IN
OP.587/2017 OF THE FAMILY COURT,
KOLLAM FILED BY RESPONDENTS FOR
SETTING ASIDE EXPARTE DATED 25.6.2019
Exhibit P4 TRUE COPY OF THE DELAY PETITION
I.A.2991/2019 IN OP.587/2017 OF THE
FAMILY COURT,KOLLAM FILED BY
RESPONDENTS, DATED 25.6.2019
Exhibit P5 TRUE COPY OF THE OBJECTION IN
IA.2990/2019 IN OP.587/2019 OF THE
FAMILY COURT, KOLLAM.DT.17.12.19
Exhibit P6 TRUE COPY OF THE JUDGMENT DATED
09.02.2021 IN OP(FC)NO.96/2021 OF THIS
HON'BLE COURT.
Exhibit P7 TRUE COPY OF THE IA.3003/2018 IN
OP.587/2017 OF THE FAMILY COURT,
KOLLAM FILED BY RESPONDENTS DT.17.9.18
Exhibit P8 TRUE COPY OF THE OBJECTION FILED BY
PETITIONER TO EXT.P7 IN OP.587/2017 OF
FAMILY COURT,KOLLAM
Mat.Appeal No.731 of 2019 & con.cases
Exhibit P9 TRUE COPY OF THE COMMON ORDER DATED
10.3.2021 IN IA.2990/2019 AND
IA.2991/2019 IN OP.587/2017 OF THE
FAMILY COURT, KOLLAM.
Mat.Appeal No.731 of 2019 & con.cases
