Kerala High Court
Samuel Johnson vs Jeshmiraj on 25 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
2024:KER:79552
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
OP (FC) NO. 623 OF 2024
AGAINST THE ORDER IN I.A.NO.2/2024 IN OPSMA NO.605 OF 2021 OF
FAMILY COURT,THIRUVANANTHAPURAM
PETITIONER/PETITIONER/COUNTER PETITIONER:
SAMUEL JOHNSON, AGED 34 YEARS
S/O EDWIN RAJKUMAR,BLOCK -2E,FLAT
NO:805,DEPARTMENT OF SPACE(ISRO)HOUSING
COLONY,HMT ESTATE,JALAHALLI,NEAR H.M.T
HIGH SCHOOL,BENGALARU,KARNATAKA,
PIN - 560013
BY ADV S.NIKHIL SANKAR
RESPONDENT/COUNTER PETITIONER/PETITIONER:
JESHMIRAJ, D/O SUNITHA,SUNITHA NIVAS
JPN-17A,T.C NO:16/1467 KANETTUMUKKU,
THYCAUDU P.O, THIRUVANANTHAPURAM,
PIN - 695014
SRI K.M.FIROZ
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(FC)623/24
2
JUDGMENT
Devan Ramachandran, J.
The petitioner singularly pleads that Ext.P5 application filed by
him before the learned Family Court, Thiruvananthapuram - seeking
that the maintainability of O.P.No.605/2021 be considered as a
preliminary issue - be directed to be taken up and disposed of at the
earliest.
2. In response to the afore submissions of Sri.S.Nikhil Sankar -
learned counsel for the petitioner, Sri.K.M.Firoz - learned counsel for
the respondent, submitted that the application in question is highly
belated and impermissible because, evidence of the parties have begun
and that the question of maintainability is one in the realm of fact and
law. He added that, in any event, it is well settled that such questions
have to be raised at the earliest opportunity, at least in the counter
statement - which has not been done; and not through an application
filed many months after the Original Petition.
3. When we evaluate the afore rival submissions, it is evident
that, on one side, the respondent asserts that issues for trial have been
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OP(FC)623/24
framed by the learned Family Court, and the matter listed for evidence;
while, the petitioner asserts to the contrary.
4. That said, it is well settled that questions of
maintainability are to be raised by the parties in their pleadings at the
earliest instance. This, again, is not something that we can decide at
this stage, but is for the learned Family Court to advert to
appropriately.
5. Obviously, if Ext.P5 is still pending, it is for the learned
Family Court to decide how to deal with it, as per law, after affording
necessary opportunities to both sides.
With the afore observations, this Original Petition is disposed
of.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
2024:KER:79552
OP(FC)623/24
APPENDIX OF OP (FC) 623/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.P.
(SMA)NO.605/2021 DATED 8.3.2021 ON THE
FILES OF THE FAMILY COURT,
THIRUVANANTHAPURAM
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT IN
O.P(SMA).NO:605/2021 ON THE FILES OF THE
FAMILY COURT, THIRUVANANTHAPURAM
Exhibit P3 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY
THE RESPONDENT IN O.P NO.605/2021 ON THE
FILES OF THE FAMILY COURT,
THIRUVANANTHAPURAM(WITHOUT ANNEXURES)
Exhibit P4 TRUE COPY OF THE CROSS EXAMINATION OF THE
RESPONDENT IN O.P NO.605/2021CONNECTED
WITH O.P.862/2021 ON THE FILES OF THE
FAMILY COURT,THIRUVANANTHAPURAM
Exhibit P5 TRUE COPY OF THE I.A NO:2/2024 IN O.P
NO.605/2021 ON THE FILES OF THE FAMILY
COURT, THIRUVANANTHAPURAM
