Kerala High Court
James Shelton [email protected] vs Susan Sarish Sunny on 6 July, 2022
OP(C) NO. 1179 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(C) NO. 1179 OF 2022
AGAINST THE ORDER DATED 25.5.2022 IN OS 260/2019 OF III
ADDITIONAL SUB COURT, ERNAKULAM
PETITIONER/FIRST DEFENDANT:
JAMES SHELTON [email protected]
AGED 29 YEARS
S/O. SHELTON ZAVIOUR
RESIDING AT VAIKATHU HOUSE, PATHANAMTHITTA P.O
PATHANAMTHITTA DISTRICT, PIN - 689645
BY ADVS.
V.PHILIP MATHEWS
GIBI.C.GEORGE
RESPONDENT/PLAINTIFF:
SUSAN SARISH SUNNY
AGED 41 YEARS
D/O. MATHEWS THARAKAN MATHEWS
RESIDING AT 107-0,TOWER 1 GOLDEN GATES ,MLA
ROAD,PALACHUVADU, KAKKANAD, KOCHI, PIN - 682030
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) NO. 1179 OF 2022
2
JUDGMENT
The petitioner assails the order dated 25.5.2022 in I.A
No.9/2022 in O.S. No.260/2019 (Ext.P5) passed by the
Court of the Subordinate Judge, Ernakulam, in this original
petition.
2. The petitioner's case, in brief, relevant for
determination of the original petition is that, he is the 1 st
defendant in the suit, which is filed by the respondent for
realisation of money. Service of summons in the suit is not
complete on the 2nd defendant, who is none other than the
mother of the petitioner. The respondent has alleged in
Ext.P1 plaint, that the petitioner and his mother owe her
money. The petitioner has filed Ext.P2 written statement
refuting the allegations in Ext.P1 plaint. Even though
summons was sent to the petitioner's mother - the 2 nd
defendant - in the suit, the same has returned with an
OP(C) NO. 1179 OF 2022
endorsement that the 2nd defendant has left India and is
residing in Canada. The respondent then filed Ext.P3
application, to direct the petitioner to furnish the address
of his mother to enable the respondent to take steps to
issue summons to the 2nd defendant. The petitioner had
filed Ext.P4 counter affidavit to Ext.P3 application, inter
alia, contending that there is no provision in law enabling
the respondent to adopt the above course and compel the
petitioner to provide the address of the 2 nd defendant.
Nevertheless, the court below, without adverting to Ext.P4
counter affidavit, has by the impugned Ext.P5 order
allowed Ext.P3 application and directed the petitioner to
furnish the address of the 2nd defendant. Ext.P5 order is
erroneous and unsustainable in law. Hence the original
petition.
3. Heard;Gibi.C.George, the learned counsel
appearing for the petitioner on admission.
OP(C) NO. 1179 OF 2022
4. The point that arises for consideration in this
original petition is whether there is any error in Ext.P5
order passed by the court below?
5. Undisputedly, the respondent has filed Ext.P1
plaint as against the petitioner and the 2 nd defendant who
is none other than the mother of the petitioner. The
respondent has sought for a decree to recover an amount
of Rs.40,69,330/- with interest and cost from the
defendants. In Ext.P1, the respondent has shown the
address of both the petitioner and the 2 nd defendant as
'Vaikathu House, Pathanamthitta P.O, Pathanamthitta - 689
645'. The respondent had taken steps to effect service of
notice on the 2nd defendant in the above address.
However, the notice was returned with an endorsement
that the 2nd respondent is 'outside India'.
6. During the interregnum, the petitioner had filed
I.A No.7/2022 to delete the name of the 2 nd defendant from
the party array in the plaint, on the allegation that she is
OP(C) NO. 1179 OF 2022
an unnecessary party. The court below has dismissed the
said application. Then, the respondent pointing out the
fiduciary relationship between the petitioner and the 2 nd
defendant had filed Ext.P3 application, to direct the
petitioner to furnish the 2nd defendant's address abroad.
At that time, the petitioner took a volte face and filed
Ext.P4 counter affidavit, inter alia, contending that after
the institution of Ext.P1 plaint, the petitioner's mother had
expressed her displeasure towards him and his mother is
in Canada for the last six years. Therefore, there is no
necessity for him to have the postal address of his mother.
Hence, the application may be dismissed.
7. The court below, after considering Ext.P3
application and Ext.P4 objection, has directed the
petitioner to furnish the 2nd defendant address abroad, to
enable the respondent to take steps to effect summons on
the 2nd defendant.
OP(C) NO. 1179 OF 2022
8. It is to be markedly noted that the petitioner
himself had filed I.A 7/2022 before the court below, to
strike off the name of the 2nd defendant from the party
array in the plaint. It was only after the respondent had
filed Ext.P3 application, that the petitioner has come up
with the allegation that his mother had expressed her
displeasure towards him. Nonetheless, he does not have a
case that he is unaware of the address of his mother or
that his relationship with his mother is strained.
9. The pivotal contention of the petitioner is that
there is no enabling provision in the Code of Civil
Procedure, 1908, permitting the respondent to seek the
address of the 2nd defendant from the petitioner.
10. The above contention is untenable. The inherent
power of the Courts under Section 151 of the Code of Civil
Procedure, 1908, is high and wide. It is to do complete
justice and meet to exigencies like the one on hand, that
the legislature has conferred the inherent powers on the
OP(C) NO. 1179 OF 2022
Courts. In the light of the fiduciary relationship of the
petitioner with the 2nd respondent, he is bound to furnish
the address of his mother. The evasive reply furnished by
the petitioner in Ext.P4 objection, leads this Court to
perceive that the ulterior intention of the petitioner is to
shelter his mother. Ultimately, it is the majesty of the
Court that prevails, especially on being convinced that the
petitioner is deliberately evading to furnish the address of
the 2nd defendant. The court below was totally justified in
directing the petitioner to furnish the address of the 2 nd
defendant, so that summons in the suit can properly be
served on the 2nd defendant, instead of effecting
substituted service of notice. I do not find any illegality
or irregularity in the course adopted by the court below.
There is no ground made out warranting interference with
Ext.P5 order under Article 227 of the Constitution of India.
OP(C) NO. 1179 OF 2022
The original petition is devoid of any merits and is
hence dismissed.
Sd/-
C.S.DIAS
ma/6.7.2022 JUDGE
OP(C) NO. 1179 OF 2022
APPENDIX OF OP(C) 1179/2022
PETITIONER EXHIBITS
Exhibit P1 COPY OF THE PLAINT IN O.S NO. 260/2019
Exhibit P2 COPY OF THE WRITTEN STATEMENT OF THE
PETITIONER IN O.S NO. 260/2019
Exhibit P3 COPY OF I.A.NO. 9/2022 FILED BY THE
RESPONDENT
Exhibit P4 COPY OF THE AFFIDAVIT FILED BY THE
PETITIONER AGAINST EXHIBIT P3
Exhibit P5 COPY OF THE ORDER DATED 25-05-2022 PASSEDC
BY THE SECOND ADDITIONAL SUB-COURT ,
ERNAKULAM IN I.A . 9/2022 IN O.S NO.
260/2019
