Sreevidya A.V vs Shibu
2023 Latest Caselaw 2928 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT

        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
                  O.P.(FC) NO. 79 OF 2023
 AGAINST THE ORDER DATED 04.02.2023 IN I.A.NOS.4 & 5 OF
 2023 IN O.P.(MONEY) NO.117 OF 2014 ON THE FILES OF THE
                   FAMILY COURT, CHAVARA
PETITIONER:

          SREEVIDYA A.V.
          AGED 38 YEARS, D/O VANAJAKUMARI, REPRESENTED
          THROUGH HER POWER OF ATTORNEY HOLDER AND MOTHER
          VANAJAKUMARI, SREEMANDIRATH KIZHAKKATHIL
          (SAROVARAM), PANMANA VILLAGE, PANMANA PO,
          KARUNAGAPPALLY, KOLLAM, PIN - 690524.
          BY ADVS.
          M.R.SASITH
          NEELANJANA NAIR
          R.K.CHIRUTHA
          RAJITHA V.K
          PARVATHI KRISHNA
          BHAVANA K.K
          SITHARA HAMZA KIZHAKOOT


RESPONDENTS:

    1     SHIBU
          AGED 42 YEARS, S/O VIJAYAMMA, POONTHOTTATHIL
          HOUSE, ELANGAMANGALAM, ENATH PO,
          PATHANAMTHITTA, PIN - 691526.
                                 2
O.P.(FC) No.79 of 2023


     2      VIJAYAMMA
            AGED 65 YEARS, M/O SHIBU, POONTHOTTATHIL HOUSE,
            ELANGAMANGALAM, ENATH PO, PATHANAMTHITTA,
            PIN - 691526.
            BY ADV JANI A



         THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING     ON   13.03.2023,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                 3
O.P.(FC) No.79 of 2023


                           JUDGMENT

P.G. Ajithkumar, J.

The petitioner filed O.P.(Money) No.117 of 2014 before

the Family Court, Chavara seeking a decree of return of gold

ornaments, movables and money. She has filed I.A.No.4 of

2023 seeking leave to amend the petition and I.A.No.5 of

2023 for allowing her to examine additional witnesses. The

Family Court dismissed both those petitions as per Exts.P4

and P6 orders respectively. The petitioner has filed this

Original Petition under Article 227 of the Constitution of India

seeking to set aside Exts.P4 and P6 orders.

2. As per the order dated 15.02.2023, notice was

directed to be served on the respondents. Final disposal of

O.P.(Money) No.117 of 2014 was directed to be deferred for a

period of four weeks also.

3. The respondents entered appearance through their

learned counsel.

4. Heard the learned counsel appearing for the petitioner

and the learned counsel appearing for the respondents.

O.P.(FC) No.79 of 2023

5. In O.P.(Money) No.117 of 2014 trial was begun.

The petitioner as well as witnesses on her side were

examined. At that stage, the petitioner filed I.A.Nos.4 and 5

of 2023. The petitions were filed by the power of attorney

holder of the petitioner. The mother of the petitioner is the

power of attorney. The amendment sought is correction in the

ornaments enlisted in the petition schedule and also the

amount sought to be realised from the respondent. Stating

that while mentioning those facts in the original petition, there

occurred mistakes, the amendment is sought for. Also, on the

ground that there occurred omission to cite a few material

witnesses, as a result of inadvertence on the part of her

earlier counsel, the petitioner has filed I.A.No.5 of 2023 to

reopen the evidence and to allow her to examine additional

witnesses.

6. The respondent has objected those petitions

stating that they were highly belated. After commencement of

the trial, an amendment of the present nature cannot legally

be permissible and for that reason itself there is no reason to

O.P.(FC) No.79 of 2023

reopen the evidence. The respondent also pointed out that in

the light of the direction given by this Court to dispose of O.P.

(Money) No.117 of 2014 within a period of three months, both

the petitions are liable only to be dismissed. Accordingly, the

respondent would contend that the Family Court rightly

dismissed I.A.Nos.4 and 5 of 2023.

7. Proviso to Order VI, Rule 17 of the Code of Civil

Procedure, 1908 bars amendment of the pleadings after

commencement of the trial. The only exception is that the

parties seeking leave to amend could not raise the matter

before the commencement of trial inspite of due diligence. Here,

the amendment proposed is correction of mistakes in the

original petition. It is stated that such mistakes occurred due to

inadvertence. It may be said that inadvertence is a facet of lack

of diligence. However, when the inadvertence on the part of the

counsel is a reason, it may not be appropriate to say that there

was lack of diligence on the part of the petitioner, and therefore,

the proposed amendment falls within the mischief of the proviso

to Order VI, Rule 17 of the Code.

O.P.(FC) No.79 of 2023

8. In such circumstances, we are of the view that the

amendment proposed by the petitioner is liable to be allowed.

Of course, whether or not such changes brought about in the

petition would affect the credibility of the petitioner's claim, is

a question to be decided by the Family Court while disposing

of the original petition. Since we are of the view that the

amendment is liable to be allowed, the petitioner shall be

given an opportunity to adduce additional evidence. The

applications are found to be allowed. As such, the direction of

this Court to dispose of O.P.(Money) No.117 of 2014 in a time

bound manner shall not stand in the way of allowing the

applications. While doing so, it is necessary that the

inconvenience caused to the respondents is to be

compensated.

9. In the result, this Original Petition is allowed and

Exts.P4 and P6 orders are set aside on the condition of

payment of cost of Rs.5,000/- (Rupees five thousand only) by

the petitioner to the respondents. The cost shall be paid

within a period of two weeks from today. On such payment,

O.P.(FC) No.79 of 2023

I.A.Nos.4 and 5 of 2023 will stand allowed. The Family Court

will resume the trial and dispose of O.P.(Money) No.117 of

2014 in accordance with law. The period fixed for disposal of

the original petition is extended by a further period of three

months from the date of payment of the costs.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

O.P.(FC) No.79 of 2023

APPENDIX OF OP (FC) 79/2023

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF O.P (MONEY) NO. 117/2014 DATED 14.02.2014.

EXHIBIT P2 TRUE COPY OF THE OBJECTION IN EXHIBIT P1 FILED BY THE RESPONDENTS.

EXHIBIT P3 TRUE COPY OF THE AMENDMENT PETITION FILED BY THE PETITIONER HEREIN AS I.A NO. 4/2023 IN O.P (MONEY) NO. 117/2014 DATED 30.01.2023 EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT AT CHAVARA IN IA NO.4/2023 IN O.P (MONEY) NO.117/2014 DATED 04.02.2023.

EXHIBIT P5 TRUE COPY OF THE I.A. NO.5/2023 IN O.P (MONEY) NO.117/2014 DATED 30.01.2023. EXHIBIT P6 TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT AT CHAVARA IN IA NO 5 / 2023 IN OP(MONEY) NO.117/2014 DATED 04.02.2023.