Kerala High Court
K. Indiradevi vs Lakshmi Menon on 23 October, 2024
OP(C).No.1939 of 2024 1
2024:KER:78713
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA,
1946
OP(C) NO. 1939 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN OS NO.195 OF 2024
OF I ADDITIONAL MUNSIFF COURT,ERNAKULAM
PETITIONER:
K. INDIRADEVI,AGED 65 YEARS
W/O P.ASOKAN RESIDING AT FLAT NO.5E PANJOS
GARDENS, PAVOOR ROAD, EDAPPALLY P.O, KOCHI, PIN -
682024
BY ADVS.
R.SURAJ KUMAR
SUNIL J.CHAKKALACKAL
N.G.SINDHU
SUNITHA G.
VASANTH SHAJU
NAMITHA SHAJI
RESPONDENTS:
1 LAKSHMI MENON,AGED 63 YEARS
D/O. BALAKRISHNA MENON, POURNAMI, SASTHA NAGAR
PATTURAKKAL,THRISSURE, PIN - 680001
2 K.SYAM KUMAR,AGED 45 YEARS
S/O P.ASOKAN RESIDING AT FLAT NO.5E PANJOS
GARDENS, PAVOOR ROAD, EDAPPALLY P.O, KOCHI, PIN -
682024
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
13.9.2024, THE COURT ON 23.10.2024 DELIVERED THE FOLLOWING:
OP(C).No.1939 of 2024 2
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VIJU ABRAHAM,J
-------------------
OP(C).No.1939 of 2024
-------------------------------
Dated this the 23rd day of October, 2024
JUDGMENT
The above original petition is filed
challenging Ext.P4 order and seeking an order to
release the pension book of the deceased husband
of the petitioner, which is listed as item Nos.7
and 8 of Ext.P2 inventory list prepared by the
Advocate commissioner.
2. The petitioner is the plaintiff in OS
No.195/2024 on the file of the 1st Additional
Munsiff's Court, Ernakulam, a suit for mandatory
injunction to put the plaintiff in possession of
the plaint schedule flat and for consequential
reliefs. An advocate commissioner was appointed
for preparing an inventory in the plaint schedule
flat and the same was allowed. The contention of
the petitioner that late P.Ashokan is her husband
and father of the 2nd respondent/2nd plaintiff was a
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retired Superintendent of Central Excise and
Customs Perumbavoor Range, who died on 2.1.2024
due to Cardiac arrest. He was superannuated in the
year 2013 and the pension payment order book of
the pensioner/petitioner's husband bearing
No.514081300042 and the retirement submission of
pension paper which are numbered as item Nos.7 and
8 in the inventory list prepared by the advocate
commissioner is required by the petitioner for
submitting the same before the Central Excise and
Customs Department in order to get family pension
since she is the legally wedded wife of the
deceased. Thereupon, Ext.P3 application was filed
as IA No.7 of 2024 before the Munsiff Court-II,
Ernakulam for release of the pension book of her
husband. The 1st respondent did not filed an
objection to the said interlocutory application.
The trial court dismissed Ext.P3 application as
per Ext.P4. Petitioner submits that going by
Ext.P6, legal heirship certificate, petitioner and
the 2nd respondent are the legal heirs of the
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deceased P.Ashokan. The learned counsel for the
petitioner submits that the trial court went wrong
in issuing Ext.P4 order rejecting the request of
the petitioner since the petitioner is the only
person legally entitled to receive the family
pension of the deceased P.Ashokan. The learned
counsel for the petitioner submits that the
reasons stated in Ext.P4 for rejecting the request
of the petitioner that the petition is filed only
under Section 151 of the CPC and is not a petition
seeking mandatory injunction and that prayer of
the petitioner could be allowed only after all
materials showing the entitlement of the
petitioner for the reliefs sought is properly
brought in record and adjudicated, is without any
basis. It is settled law that quoting the wrong
provision of law in an application will not
prevent the court from deciding the interlocutory
application on merits treating the said
application as one seeking mandatory injunction.
Petitioner submits that she is aged 65 years old
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and is made to run pillar to post to get
sanctioned her family pension.
3. Notice was issued to the respondents by
special messenger, which was duly received by the
2nd respondent through his wife but when messenger
attempted to serve notice on the 1st respondent,
the messenger was not allowed to enter the flat
and was not ready to accept the notice and
therefore, the notice has been returned unserved.
The messenger has submitted a report in this
regard. Therefore, I am of the view that there is
due notice to the respondents in this proceedings.
4. The request made in Ext.P3 is seeking a
direction to the respondents to release the
pension payment book bearing No. 514081300042 of
P.Ashokan, who died on 2.1.2024 and retirement
submission of pension paper before the Central
Excise and Customs for obtaining family pension.
It is an admitted case that those documents are
part of Ext.P2 inventory commission which has been
marked as item Nos.7 and 8. A perusal of Ext.P5
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communication from the Central Excise Department
would reveal that a communication for grant of
family pension was sent to the petitioner and
going by Ext.P6 petitioner and the 2nd respondent,
who are plaintiffs in the suit are the legal heirs
of deceased P.Ashokan.
5. It is settled position of law that quoting
of wrong provision will not disentitle the court
to consider the application on merits and
therefore the application ought not have been
dismissed on the said ground. (See the judgment
in John Simon vs. T.H.Mohammed Kunju (2007 (2) KHC
925), Muthoot Leasing and Finance Ltd, (M/s.) v.
N.P.Asiya and Others (2011 (1) KHC 567), Kurian
K.J. v. District Collector, Kottayam and Another
(2013 (1) KHC 878) and Kavil Radha Amma and Others
v. Kodiyeri Gopalakrishna Menon and Others (2009
KHC 4495)). In Kavil Radha Amma's case cited
supra, the court has held that even if a wrong
provision is quoted in the petition, the trial
court should have granted an opportunity to
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correct the same instead of dismissing the same.
Yet another reason stated for rejecting the
application is that the prayer in the petition can
be allowed only after all materials showing
entitlement of the petitioner for relief sought is
properly brought in record and adjudicated. After
dismissing the petition on the ground that the
same has been filed under Section 151 of the CPC,
it is not proper on the part of the trial court to
enter a finding that the prayer in the petition
can be allowed only after all materials showing
entitlement of the petitioner for relief sought is
properly brought in record and adjudicated.
6. In view of the above facts and
circumstances, I am of the opinion that the trial
court ought to have considered Ext.P3 application
on merits and should not have dismissed the
application for quoting the wrong provision. Even
if a wrong provision is quoted, the petitioner
ought to have been granted time to correct the
same. Therefore, Ext.P4 order is set aside with a
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consequential direction to the trial court to
reconsider Ext.P3 in the light of the observation
made above and after giving an opportunity to the
respondents also. Thereafter, considering the
contentions raised by both sides, if required
after giving an opportunity to adduce evidence to
both sides, the trial court shall pass fresh order
on Ext.P3 application filed as IA No.7 of 2024 in
OS No.195 of 2024 on merits without any delay.
The above said direction, the original petition
is disposed of.
sd/-
VIJU ABRAHAM,JUDGE
pm
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APPENDIX OF OP(C) 1939/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.NO. 195
0F 2024 ON THE FILES OF THE 1ST
ADDITIONAL MUNSIFF'S COURT , ERNAKULAM
DATED 22.02.2024
Exhibit P2 TRUE COPY OF THE INVENTORY COMMISSION
REPORT DATED 27.02.20214
Exhibit P3 TRUE COPY OF I.A NO 7 OF 2024 BEFORE
THE HONOURABLE MUNSIFF'S COURT II
,ERNAKULAM
Exhibit P4 TRUE COPY OF THE ORDER DATED 28.06.2024
Exhibit P5 TRUE COPY OF THE LETTER DATED 02.08.
Exhibit P6 TRUE COPY OF THE LEGAL HEIRSHIP
CERTIFICATE DATED 05.08. 2024
Exhibit P7 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE 1ST RESPONDENT/DEFENDANT
IN O.S NO.195/2024 OF MUNSIFF COURT II,
ERNAKULAM DATED 18.07.2024
