P.P Prakash @ Balu vs Aparna M
2024 Latest Caselaw 18750 Ker

Kerala High Court

P.P Prakash @ Balu vs Aparna M on 28 June, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                             &
           THE HONOURABLE MR. JUSTICE P.M.MANOJ
   FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
                  OP (FC) NO. 248 OF 2024
 AGAINST THE ORDER/JUDGMENT DATED 20.12.2023 IN OP NO.946
        OF 2014 OF FAMILY COURT,THIRUVANANTHAPURAM

PETITIONER:

          P.P PRAKASH @ BALU, AGED 55 YEARS
          S/O. PARAMESWARAN NAIR, TRAE 77, PADMAVILASAM, SREE
          CHITHIRA THIRUNAL NAGAR, AKKULAM, THURUVIKKAL, MEDICAL
          COLLEGE P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695011

          BY ADV T.U.SUJITH KUMAR


RESPONDENTS:

    1     APARNA M, AGED 50 YEARS, D/O. N BHAVANI AMMA, AKHILAM,
          K.P. 10/114 (OLD 7/722), KAIRALI NAGAR, KUDAPPANAKUNNU
          P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695043

    2     AKHILA, AGED 21 YEARS, D/O. P.P PRAKASH, AKHILAM, K.P.
          10/114 (OLD 7/722), KAIRALI NAGAR, KUDAPPANAKUNNU P.O,
          THIRUVANANTHAPURAM DISTRICT, PIN - 695043

          BY ADVS.
          Sabu S. (Kallaramoola) .
          LEEJOY MATHEW.V.(K/1005/2003)
          SINDHU MATHEW(K/1241/1998)
          SIMSAR UL HAQ K.Y(K/001810/2023)
          ASHNA S.(K/003309/2023)


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 28.06.2024, ALONG WITH OP (FC).253/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
                                         2


OP(FC)Nos.248 & 253 of 2024




         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                             &
           THE HONOURABLE MR. JUSTICE P.M.MANOJ
   FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
                  OP (FC) NO. 253 OF 2024
 AGAINST THE ORDER/JUDGMENT DATED 20.12.2023 IN OP NO.668
        OF 2012 OF FAMILY COURT,THIRUVANANTHAPURAM

PETITIONER:

              P.P PRAKASH @ BALU, AGED 55 YEARS
              S/O. PARAMESWARAN NAIR, TRAE 77, PADMAVILASAM, SREE
              CHITHIRA THIRUNAL NAGAR, AKKULAM, THURUVIKKAL, MEDICAL
              COLLEGE P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695011

              BY ADV T.U.SUJITH KUMAR


RESPONDENTS:

      1       APARNA M., AGED 50 YEARS, D/O. N BHAVANI AMMA, AKHILAM,
              K.P. 10/114 (OLD 7/722), KAIRALI NAGAR, KUDAPPANAKUNNU
              P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695043

      2       AKHILA, AGED 21 YEARS, D/O. P.P PRAKASH, AKHILAM, K.P.
              10/114 (OLD 7/722), KAIRALI NAGAR, KUDAPPANAKUNNU P.O,
              THIRUVANANTHAPURAM DISTRICT, PIN - 695043

              BY ADVS.
              SIMSAR UL HAQ K.Y
              SABU S.KALLARAMOOLA(K/001244/1998)
              LEEJOY MATHEW.V.(K/1005/2003)
              SINDHU MATHEW(K/1241/1998)
              ASHNA S.(K/003309/2023)



     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 28.06.2024, ALONG WITH OP (FC).248/2024, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
                                                3


OP(FC)Nos.248 & 253 of 2024




                                  JUDGMENT

Raja Vijayaraghavan, J.

The common order passed by the Family Court,

Thiruvananthapuram in I.A. Nos.1 of 2020 and 2 of 2020 in O.P. Nos.668

of 2012 and 946 of 2014 are under challenge in these petitions.

2. We find that O.P. No.946 of 2014 is filed by the wife and the

daughter for recovery of maintenance and gold ornaments and O.P.

No.668 of 2012 is filed seeking declaration of title and possession.

3. Initially, the petitions were decreed ex-parte, and when an

execution petition was filed, the petitioner filed an application seeking to

set aside the ex-parte decree, which was allowed. Subsequently, the wife

filed a memo requesting that the original petition be dismissed as "not

pressed." On the basis of this memo, the Family Court proceeded to

dismiss the petition.

4. Later, the respondent filed an application requesting the

restoration of the petition. In the affidavit filed in support of the

OP(FC)Nos.248 & 253 of 2024

application, she stated that her father had expired. As he was the person

providing her with mental and emotional support, she became frustrated

by his death and contemplated ending her life. She also stated that she

lacked the means to make ends meet and did not have the financial

wherewithal to contest the matter on its merits. It was under these

circumstances that she filed the memo requesting the petition's dismissal

as "not pressed." She asserted that she is struggling in life and, unless

the matter is restored, serious prejudice will be caused.

5. The respondent had vehemently opposed the application.

6. The Family court by the impugned order has allowed the

same.

7. Sri. T.U. Sujith Kumar, the learned counsel appearing for the

petitioner, submitted that the order passed by the Family court cannot be

sustained. It is pointed out by the learned counsel that a perusal of the

affidavit would show that the reasons stated therein are false. According

to the learned counsel, by filing a memo stating that the petition was not

pressed, the petitioner had clearly sought for dismissal of the petition. It

is submitted that she cannot unilaterally withdraw such submission to the

prejudice of the petitioner. The learned counsel would also refer to the

OP(FC)Nos.248 & 253 of 2024

law laid down in Philomina Joseph v. State of Kerala1, Muhammed

Master v. Abu Haji2 and Mariyam v. Vijayarajan3 to substantiate his

contention.

8. The learned counsel appearing for the respondent/wife has

opposed the submission. He would reiterate the assertions in the

affidavit filed by the wife and submit that it was under pressing

circumstances, the petitioner had filed the memo. According to the

learned counsel, the restoration application was allowed by the Family

Court invoking the powers under Section 151 of the CPC and, that too,

relying on the principles of law laid down by the Apex Court.

7. We have considered the submissions advanced and we have

also gone through the records.

8. The records reveal that while the proceedings were pending,

the respondents herein, who are the wife and daughter respectively had

filed a memo before the court that they were not interested in pursuing

the matter. However, in the application for restoration, she has detailed

the reasons which persuaded her to file a memo. Of course, an

application under Order IX Rule 9 cannot be maintained in view of the

[2009 (1) KHC 575]

[1981 KHC 334]

[2015 (1) KHC 324]

OP(FC)Nos.248 & 253 of 2024

law laid down in Sosamma v. Mariyamma4. However, the Apex Court

in Jet Plywood (P) Ltd. and Another v. Madhukar Nowlekha5 has

held that Section 151 can be invoked in appropriate courses ex debit

justicia to do real and substantial justice between the parties. The Family

court has observed that the powers under Section 151 of the CPC is not

invoked, the wife and daughter would be rendered remediless.

9. The scope and ambit of the power and jurisdiction by a High

Court under Article 227 was explained by the Hon'ble Supreme Court in

Estralla Rubber v. Dass Estate (P) Ltd.6 It was held that the High

Court is not vested with any unlimited prerogative to correct all kinds of

hardships or wrong decisions made within the limits of the jurisdiction of

the subordinate courts or Tribunals. The power under Article 227 is to be

exercised sparingly in appropriate cases like when there is no evidence at

all to justify or the finding is so perverse that no reasonable person can

possibly come to such a conclusion that the court or Tribunal has come to

and that it is axiomatic that such discretionary relief must be exercised to

ensure there is no miscarriage of justice. Supervisory jurisdiction is not to

correct every error of fact or even a legal flaw when the final finding is

justified or can be supported. In the facts and circumstances of the case,

[2015 (4) KHC 858]

[2006 KHC 419]

JT 2001 (7) SC 657

OP(FC)Nos.248 & 253 of 2024

we do not think that any interference is warranted.

These petitions are dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

Sd/-

P.M.MANOJ JUDGE

ncd

OP(FC)Nos.248 & 253 of 2024

APPENDIX OF OP (FC) 248/2024

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE O.P NO. 946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 03.06.2014.

Exhibit-P2 A TRUE COPY OF THE RESTORATION PETITION FILED BY THE 1ST RESPONDENT, I.A NO. 1/2020 IN O.P. NO.946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 04.06.2020.

Exhibit-P3 A TRUE COPY OF THE PETITION FIELD BY THE 1ST RESPONDENT TO CONDONE THE DELAY, I.A NO. 2/2020 IN O.P. NO.946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 04.06.2020.

Exhibit-P4 A TRUE COPY OF THE OBJECTION TO THE RESTORATION PETITION FILED BY THE PETITIONER IN I.A NO. 1/2020 IN O.P. NO. 946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 15.11.2021.

Exhibit-P5 A TRUE COPY OF THE OBJECTION TO THE DELAY CONDONATION PETITION FILED BY THE PETITIONER IN I.A NO. 2/2020 IN O.P. NO.946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 15.11.2021.

Exhibit-P6 A TRUE COPY OF THE ORDER DATED 09.10.2023 IN I.A NO. 1/2020 AND I.A NO. 2/2020 IN O.P NO.

                              946/2014     OF     THE    FAMILY     COURT,
                              THIRUVANANTHAPURAM.

Exhibit-P7                    A TRUE COPY OF THE REVIEW PETITION, I.A NO.

4/2023 IN I.A NO. 1/2020 IN O.P NO. 946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 30.11.2023.

Exhibit-P8 A TRUE COPY OF THE PETITION TO CONDONE THE DELAY, I.A NO. 5/2023 IN I.A NO. 2/2020 IN O.P NO. 946/2014 OF THE FAMILY COURT,

OP(FC)Nos.248 & 253 of 2024

THIRUVANANTHAPURAM DATED 05.12.2023.

Exhibit-P9 A TRUE COPY OF THE REVIEW PETITION, I.A NO.

6/2023 IN I.A NO. 2/2020 IN O.P NO. 946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 05.12.2023.

Exhibit-P10 A TRUE COPY OF THE PETITION TO CONDONE THE DELAY, I.A NO. 7/2023 IN I.A NO. 1/2020 IN O.P 946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 06.12.2023.

Exhibit-P11 A TRUE COPY OF THE COMMON ORDER DATED 20.12.2023 IN I.A NO. 4/2023, I.A NO.

5/2023, I.A NO. 6/2023 AND I.A NO. 7/2023 IN O.P NO. 946/2014 OF THE FAMILY COURT, THIRUVANANTHAPURAM.

OP(FC)Nos.248 & 253 of 2024

APPENDIX OF OP (FC) 253/2024

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 21.04.2012.

Exhibit-P2 A TRUE COPY OF THE RESTORATION PETITION FILED BY THE 1ST RESPONDENT, I.A NO. 1/2020 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 04.06.2020.

Exhibit-P3 A TRUE COPY OF THE PETITION FIELD BY THE 1ST RESPONDENT TO CONDONE THE DELAY, I.A NO. 2/2020 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 04.06.2020.

Exhibit-P4 A TRUE COPY OF THE OBJECTION TO THE RESTORATION PETITION FILED BY THE PETITIONER IN I.A NO. 1/2020 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 08.11.2021.

Exhibit-P5 A TRUE COPY OF THE OBJECTION TO THE DELAY CONDONATION PETITION FILED BY THE PETITIONER IN I.A NO. 2/2020 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 08.11.2021.

Exhibit-P6 A TRUE COPY OF THE ORDER DATED 09.10.2023 IN I.A NO. 1/2020 AND I.A NO. 2/2020 IN O.P NO.

                              668/2012     OF     THE    FAMILY     COURT,
                              THIRUVANANTHAPURAM.

Exhibit-P7                    A TRUE COPY OF THE REVIEW PETITION, I.A NO.

4/2023 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 30.11.2023.

Exhibit-P8 A TRUE COPY OF THE PETITION TO CONDONE THE DELAY, I.A NO. 5/2023 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED

OP(FC)Nos.248 & 253 of 2024

05.12.2023.

Exhibit-P9 A TRUE COPY OF THE REVIEW PETITION, I.A NO.

6/2023 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 05.12.2023.

Exhibit-P10 A TRUE COPY OF THE PETITION TO CONDONE THE DELAY, I.A NO. 7/2023 IN O.P 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 06.12.2023.

Exhibit-P11 A TRUE COPY OF THE COMMON ORDER DATED 20.12.2023 IN I.A NO. 4/2023, I.A NO.

5/2023, I.A NO. 6/2023 AND I.A NO. 7/2023 IN O.P NO. 668/2012 OF THE FAMILY COURT, THIRUVANANTHAPURAM.