Kerala High Court
Saidalavi Poniyeri vs Raihanath Padancherry on 8 November, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
O.P(FC) No.647 of 2024 1
2024:KER:83256
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
O.P(FC) NO.647 OF 2024
AGAINST THE ORDER DATED 15.10.2024 IN I.A.NO.7 OF 2024 IN
OP NO.50 OF 2019 OF FAMILY COURT, TIRUR
PETITIONER/2ND RESPONDENT:
SAIDALAVI PONIYERI, AGED 70 YEARS
S/O MOHAMMED PONIYERI, PONIYERI HOUSE,
ADHYASSERY (PO), TIRUR TALUK, MALAPPURAM DIST,
PIN - 676106
BY ADVS.
M.DEVESH
M.ANUROOP
MURSHID ALI M.
JYOTHIS MARY
RESPONDENTS/PETITIONER/1ST & 3RD RESPONDENTS:
1 RAIHANATH PADANCHERRY, AGED 38 YEARS
W/O PONIYERI MUHAMMED BASHEER, PADANJERI HOUSE,
PONMUNDAM AMSOM, ADHYASSERY(PO), TIRUR TALUK,
MALAPPURAM DIST, PIN - 676106
O.P(FC) No.647 of 2024 2
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2 PONIYERI MUHAMMED BASHEER, AGED 41 YEARS
S/O SIADALAVI, PONIYERI HOUSE, ADHYASSERY (PO),
TIRUR TALU, MALAPPURAM DIST, PIN - 676106
3 SALIYA, AGED 60 YEARS
W/O SIADALAVI, PONIYERI HOUSE, ADHYASSERY (PO),
TIRUR TALUK, MALAPPURAM DIST, PIN - 676106
BY ADVS.
TOBIAS TOGI MATHEW
PAUL P. ABRAHAM(K/000228/2017)
KESHAV KRISHNAN(K/000166/2016)
ANANDHA KRISHNAN R.(K/4363/2024)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(FC) No.647 of 2024 3
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JUDGMENT
Devan Ramachandran J.
The petitioner challenges Ext.P6 order of the learned
Family Court, Tirur, through which, it dismissed Ext.P5
application filed by him - invoking the provisions of Order XVI
Rule 1(3) of the Code of Civil Procedure - to call a witness by
name, Sri.E.P.Abdul Latheef.
2. The specific averment in the affidavit in support of
Ext.P5 I.A is that, when PW2 was examined, he had referred to
the afore person as being the person, who had intervened as a
Mediator in the matrimonial disputes between the parties. On
such basis, the petitioner, through the said application, called for
the aforementioned person as a witness.
3. However, the learned Family Court issued the impugned
order, merely saying that the application is belated, but without
explaining why it was so; and then holding that the attempt of
the respondent [petitioner herein] is to fill up lacunae by filing
additional witness list, without having done so earlier.
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4. We do not propose to speak on the merits at this time
because, Ext.P6 does not disclose the reasons that lead the
learned Judge to dismiss the application, except for recording
that "it is highly belated". Why it is belated and on what basis
the learned Court entered into the finding that the application is
meant to fill up lacunae in evidence, is not available from the
said order. Obviously, we cannot decide the matter in any
manner, but will have to ask the learned Family Court to
reconsider I.A.No.7 of 2024, in O.P.No.50 of 2019, appropriately,
after hearing both sides.
5. In such perspective and without entering into the merits
of any of the rival contentions and leaving them all open, we
allow this Original Petition and set aside Ext.P6 order of the
learned Family Court, Tirur; with a consequential direction to it
to reconsider I.A.No.7 of 2024 in O.P.No.50 of 2019, after
affording necessary opportunities to both sides, as expeditiously
as is possible, but not later than two weeks from the date of
receipt of a certified copy of this judgment.
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For the afore purpose, we direct the parties to mark
appearance before the learned Family Court, Tirur, on
12.11.2024.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
sp/08/11/2024
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APPENDIX OF OP (FC) 647/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF MEMORANDUM OF OP
50/2019 ON THE FILES OF THE FAMILY
COURT TIRUR DATED 21/01/2019
Exhibit P2 THE TRUE COPY OF THE COUNTER STATEMENT
DATED 19/12/2019 FILED BY THE
PETITIONER
Exhibit P3 THE TRUE COPY OF THE CHIEF AFFIDAVIT
FILED BY THE PETITIONER IN THE ORGINAL
PETITIONER DATED 04/04/2024
Exhibit P4 .THE TRUE COPY OF THE DEPOSITION OF THE
1ST RESPONDENT HEREIN DATED 07/08/2024
Exhibit P5 THE TRUE COPY OF THE PETITION FILED BY
THE PETITIONER HEREIN FOR EXAMINATION
OF ADDITIONAL WITNESS BY ACCEPTING THE
WITNESS LIST DATED NIL
Exhibit P6 THE TRUE COPY OF ORDER IN IA 7/2024 IN
OP 50/2019 DATED 15/10/2024
Exhibit P7 THE TRUE COPY OF IA 8/2024 IN OP
