Kerala High Court
Reghuvaran vs Manjusha Shaji on 13 April, 2023
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 13TH DAY OF APRIL 2023 / 23RD CHAITHRA, 1945
O.P.(FC) NO. 346 OF 2022
AGAINST THE ORDER DATED 22.02.2022 IN I.A.NO.4 OF 2021 IN
O.P.NO.549 OF 2019 ON THE FILE OF THE FAMILY COURT,
NEDUMANGAD
PETITIONER:
REGHUVARAN
AGED 64 YEARS,S/O. NEELAKANTAN ASARI, SHEENA
NIVAS, MUTTAPPALAM, PERUMKUZHI P.O.,
THIRUVANANTHAPURAM, PRESENTLY RESIDING AT
KANCHANVILAYIL, KENICHIRA, POOTHADI P.O.,
SULTHANBATHERRY, WAYANAD DISTRICT, PIN -
673596.
BY ADVS.
SHAJIN S.HAMEED
MELWIN BYJU
RESPONDENTS:
1 MANJUSHA SHAJI,
AGED 42 YEARS, D/O. LEELA NARAYANAN, V.S.
NIVAS, PARAPPARAMUKAL, KOTTUKUNNAM P.O.,
VAMANAPURAM, THIRUVANANTHAPURAM DISTRICT,
PIN - 695606.
2 AISWARYA SHAJI,
AGED 17 YEARS, D/O. SHAJI KRISHNAN, REPRESENTED
BY MOTHER MANJUSHA SHAJI, V.S. NIVAS,
PARAPPARAMUKAL, KOTTUKONAM P.O., VAMANAPURAM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695606.
2
O.P.(FC) No.346 of 2022
3 ADITHYA SHAJI,
AGED 10 YEARS, D/O. SHAJI KRISHNAN, REPRESENTED
BY MOTHER MANJUSHA SHAJI, V.S. NIVAS,
PARAPPARAMUKAL, KOTTUKONAM P.O., VAMANAPURAM,
THIRUVANANTHAPURAM DISTRICT, PIN - 695606.
4 VIJAYAMMA,
AGED 64 YEARS, W/O. KRISHNAN ASARI, SHEENA
NIVAS, MUTTAPALAM, PERUMKUZHI P.O.,
THIRUVANANTHAPURAM DISTRICT., PIN - 695305.
BY ADVS.
George Mathew
ELSA DENNY PINDIS
PRAVEEN S.
M.D.SASIKUMARAN
SUNIL KUMAR A.G
DIPU JAMES
MATHEW K.T.
GEORGE K.V.
STEPHY K REGI
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 04.04.2023, THE COURT ON 13.04.2023 DELIVERED
THE FOLLOWING:
3
O.P.(FC) No.346 of 2022
JUDGMENT
P.G. Ajithkumar, J.
The Family Court, Nedumangad allowed I.A.No. 4 of
2021 filed by respondent Nos.1 to 3 in O.P.No.549 of 2019 as
per Ext.P6 order dated 22.02.2022. The petitioner, who is the
2nd respondent in O.P.No.549 of 2019, filed this Original
Petition under Article 227 of the Constitution of India
challenging the said order.
2. On 16.06.2022, notice was directed to be served
on the respondents through their counsel appearing before
the Family Court, Nedumangad. Pursuant to service of notice,
respondents No.1 to 3 entered appearance through their
learned counsel.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for respondents
No. 1 to 3.
4. Respondents No. 1 to 3 filed O.P.No. 549 of 2019
before the Family Court, Nedumangad seeking a decree
allowing them to recover gold ornaments and money from the
O.P.(FC) No.346 of 2022
petitioner and the 4th respondent herein. The 1st respondent
herein is the legally wedded wife of Shaji Krishnan. Two
children born in their marital relationship are respondents No.
2 and 3. O.P.No.549 of 2019 was filed with the allegations
that the 4th respondent retained 25 sovereigns of gold
ornaments belonging to the 1st respondent and the petitioner
refused to pay the insurance amount of Rs.19,19,477/-
received by him as the nominee, when Sri. Shaji Krishnan
died in the Gulf. Respondents No.1 to 3 being the legal heirs
of Late Shaji Krishnan filed O.P. No.549 of 2019. In that
original petition jurisdiction to the Family Court, Nedumangad
was derived by contending that respondents No. 1 to 3 were
residing at Vamanapuram, a place within the territorial limits
of that Court.
5. The petitioner has filed an interlocutory application
pointing out that the Family Court, Nedumangad has no
territorial jurisdiction to try that case. Later respondents No.1
to 3 filed I.A.No. 4 of 2021 to amend the original petition.
They wanted to add additional pleadings that the gold
O.P.(FC) No.346 of 2022
ornaments in question were entrusted with the 4 th respondent
at her family house, the 1 st respondent and late Shaji
Krishnan resided together at that house and his last rites were
performed at that house. The petitioner filed objection to that
application. The Family Court after hearing both sides allowed
that application.
6. The learned counsel appearing for the petitioner
would submit that by allowing that application the Family
Court permitted respondents No.1 to 3 to withdraw their
admissions in the original petition. It is further submitted that
such an amendment with the sole intention of investing
jurisdiction to a wrong court should not have been allowed.
The learned counsel appearing for respondents No.1 to 3, per
contra, would submit that the purpose of leave to amend
essentially is to explain the facts constituting the cause of
action and the same does not amount to withdrawal of any
admission.
7. The learned counsel appearing for the petitioner
would submit that no amendment amounting to withdrawal of
O.P.(FC) No.346 of 2022
admission in a pleading can be allowed. It was contended that
if such an amendment is allowed, it will be prejudicial in the
case of the petitioner. The learned counsel accordingly
submitted that the Family Court totally went wrong in allowing
I.A.Nos.6 and 7 of 2022.
8. In Life Insurance Corporation of India v.
Sanjeev Builders Private Limited and another [AIR
2022 SC 4256] the Apex Court laid down the parameters for
allowing or declining a plea for leave to amend pleadings,
which are,-
"Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for
application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II
Rule 2 CPC is, thus, misconceived and hence
negatived.
(ii) All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the latter
O.P.(FC) No.346 of 2022
part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and
proper adjudication of the controversy between the
parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to
the other side,
(b) by the amendment, the parties seeking
amendment does not seek to withdraw any clear
admission made by the party which confers a right on
the other side and
(c) the amendment does not raise a time barred
claim, resulting in divesting of the other side of a
valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required
to be allowed unless
(i) by the amendment, a time barred claim is
sought to be introduced, in which case the fact that the
claim would be time barred becomes a relevant factor
for consideration,
(ii) the amendment changes the nature of the
suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a
valid defence.
(v) In dealing with a prayer for amendment of
O.P.(FC) No.346 of 2022
pleadings, the Court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the
Court to pin-pointedly consider the dispute and would
aid in rendering a more satisfactory decision, the
prayer for amendment should be allowed.
(vii) Where the amendment merely sought to
introduce an additional or a new approach without
introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry of
limitation.
(viii) Amendment may be justifiably allowed
where it is intended to rectify the absence of material
particulars in the plaint.
(ix) Delay in applying for amendment alone is not
a ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could be
allowed and the issue of limitation framed separately
for decision.
(x) Where the amendment changes the nature of
the suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the
plaint, the amendment must be disallowed. Where,
however, the amendment sought is only with respect to
the relief in the plaint, and is predicated on facts which
O.P.(FC) No.346 of 2022
are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
(xi) Where the amendment is sought before
commencement of trial, the Court is required to be
liberal in its approach. The Court is required to bear in
mind the fact that the opposite party would have a
chance to meet the case set up in amendment. As
such, where the amendment does not result in
irreparable prejudice to the opposite party, or divest
the opposite party of an advantage which it had
secured as a result of an admission by the party
seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary
for the Court to effectively adjudicate on the main
issues in controversy between the parties, the
amendment should be allowed. See: Vijay Gupta v.
Gagninder Kr. Gandhi and others [2022 SCC
OnLine Del 1897]." (underline supplied)
9. In O.P.No.549 of 2019, respondent Nos.1 to 3 did
not say anything regarding the place at which the gold
ornaments were entrusted and the place where the 1st
respondent along with her late husband resided together.
Where did they live during the last days of late Shaji Krishnan
also has not been stated in that petition. Therefore, by adding
the details regarding those aspects would not amount to
O.P.(FC) No.346 of 2022
withdrawal of any admission made by respondent Nos.1 to 3
in the original petition. Therefore, the objection raised by the
petitioner that the amendment cannot be allowed since it
would amount to withdrawal of admission by respondents 1 to
3 is untenable.
10. I.A.No.4 of 2021 was filed by respondent Nos.1 to
3 before the commencement of the trial. Of course, when the
petitioner raised objection regarding the territorial jurisdiction
of the Family Court, Nedumangad for which he filed I.A.No.1
of 2021, respondents 1 to 3 came forward with the proposed
amendment. That, however, cannot be a reason to decline
leave to amend the petition, if respondent Nos.1 to 3 are
entitled otherwise to get the leave. It is the trite law that truth
or falsity of the proposed amendment cannot be considered at
the time when the application for amendment is considered.
That is a matter to be decided after trial of the main
proceedings. When those aspects are considered in the light
of the law laid down by the Apex Court in the aforesaid
decision, we are of the view that the proposed amendment is
O.P.(FC) No.346 of 2022
liable to be allowed. The Family Court, Nedumangad therefore
rightly allowed I.A.No.4 of 2022. Only if that order is totally
illegal or perverse, this Court in the exercise of the powers
under Article 227 of the Constitution of India, can interfere
with the same. We are of the view that Ext.P6 order, in the
aforementioned circumstances, does not require interference.
This Original Petition is accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
O.P.(FC) No.346 of 2022
APPENDIX OF OP (FC) 346/2022
PETITIONER EXHIBITS
EXHIBIT-P1 PHOTOCOPY OF THE O.P.NO.549/2019 OF
THE FAMILY COURT, NEDUMANGAD.
EXHIBIT-P2 PHOTOCOPY OF THE OBJECTION FILED BY
THE PETITIONER HEREIN IN
O.P.NO.549/2019 BEFORE THE FAMILY
COURT, NEUDUMANGAD.
EXHIBIT-P3 PHOTOCOPY OF THE I.A.NO.2/2021 IN
O.P.NO.549/2019 ON THE FILE OF THE
FAMILY COURT, NEDUMANGAD.
EXHIBIT-P4 PHOTOCOPY OF THE I.A.NO.4/2021 IN
O.P.NO.549/2019 ON THE FILE OF THE
FAMILY COURT, NEDUMANGAD.
EXHIBIT-P5 PHOTOCOPY OF THE OBJECTION FILED BY
THE PETITIONER IN I.A.NO.4/2021 IN
O.P.NO.549/2019 ON THE FILE OF THE
FAMILY COURT, NEDUMANGAD.
EXHIBIT-P6 PHOTOCOPY OF THE ORDER DATED
22/02/2022 IN I.A.NO.4/2021 IN
O.P.NO.549/2019 OF THE FAMILY COURT,
NEDUMANGAD.
