Kerala High Court
Vineesh.P.V vs Anju.P.Arjunan on 5 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
OP (FC) NO. 517 OF 2024
AGAINST THE ORDER DATED 02.07.2024 IN OP NO.393 OF 2024 OF
FAMILY COURT,THRISSUR
PETITIONERS/RESPONDENTS/RESPONDENTS:
1 VINEESH.P.V, AGED 38 YEARS
S/O.N.VIDYADARAN (LATE), PANAKKAL LAKSHMI BHAVAN,
MUTHIRAPPADAM, THAIKKATTUKARA.PO, CHOORNIKKARA VILLAGE,
ALUVA TALUK, ERNAKULAM, PIN - 683106
2 PRASANNAKUMARI, AGED 74 YEARS
W/O.N.VIDYADARAN (LATE), PANAKKAL LAKSHMI BHAVAN,
MUTHIRAPPADAM, THAIKKATTUKARA.PO, CHOORNIKKARA VILLAGE,
ALUVA TALUK, ERNAKULAM, PIN - 683106
LEKSHMI S.SEKHER
K.J.SUNIL
FEMY M.ANTONY
S.SUNIL KUMAR (PALAKKAD)
RESPONDENTS/PETITIONERS/PETITIONERS:
1 ANJU.P.ARJUNAN, AGED 34 YEARS
D/O.P.V.ARJUNAN (LATE), PUTHUR HOUSE, KAIPARAMBU.PO,
KAIPARAMBU VILLAGE,THRISSUR, PIN - 680546
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV PREMCHAND M
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:68053
OP (FC) NO. 517 OF 2024
2
JUDGMENT
Devan Ramachandran, J.
Going by the scheme of the Family Courts Act, 1984 and
the Rules thereunder, when an Original Petition/application is
preferred by a party, Family Courts are empowered to decide,
within the ambit of Rule 4A(2) of the Family Courts Rules (for
short "Rules"), whether there is a chance of settlement; and if so,
to issue notice to the parties under Form No.8, requiring them to
be present before it to consider such course. At this stage,
because of the inhibition under the Rules itself, a copy of the
Original Petition/application is not given to the other side and this
is reserved to be done once the mediation/settlement fails. In that
event, the Family Courts are expected to issue notice under Rule
4A(5) of the Rules, which shall have the Original Petition also
annexed to it; and then the matter will have to be decided on its
merits.
2. We have begun the judgment with the afore preface
because, the specific case of the petitioners is that they received a
notice in Form 8 - which is to say under the ambit of Rule 4A(2) of
the Rules, producing the same as Ext.P1 - but that the learned
Family Court has not yet issued any order asking the parties to
2024:KER:68053
OP (FC) NO. 517 OF 2024
mediate, nor has it issued to them a summons under 4A(5) of the
Rules, appending the Original Petition. They assert that,
therefore, they are now under a complete loss as to what the claim
against them is; but that, in the meanwhile, the Trial Court has
issued the impugned Ext.P6 order, on the application of the
respondents herein, appointing an Advocate Commissioner to take
custody of the gold ornaments in the bank locker. They say that
they apprehend that the same will now be handed over to her, in
spite of the fact that no proceedings as afore has been even
initiated.
3. Sri.Lekshmi S.Sekher - learned counsel for the
petitioners, argued that the infraction of the procedural
requirements as afore is now prejudicing her clients very intently
because, they would be left without any remedy, including to
contend that the gold ornaments in the locker are theirs or
otherwise, because they do not even have a copy of the Original
Petition as of now, thus being incapacitated from filing a counter
pleading in their defense. She, therefore, prayed that Ext.P6 be
set aside.
4. The afore submissions were, however, refuted by
Sri.Premchand, saying that his clients have filed I.A.No.2/2024
2024:KER:68053
OP (FC) NO. 517 OF 2024
seeking the appointment of an Advocate Commissioner to inspect
the joint locker, which has been allowed; and that this was
necessary because, otherwise, the petitioners herein would have
taken away the same and misappropriated it. He pointed out that
the Commissioner has identified the items and has filed a report;
and that it is only thereafter, that the learned Trial Court has
issued Ext.P6 order, allowing his clients to be in custody of the
same as an interim measure. Sri.Prem chand then asserted that
the entire gold in the bank locker belongs to his client; and that
the petitioners do not even have a whispering claim that it is
theirs. He, therefore, prayed that Ext.P6 be left uninterdicted.
5. Smt.Lekshmi S.Sekher, however, responded to the
afore assertion of Sri.Premchand, that the gold in the locker has
not been claimed by her clients, saying that such opportunity has
not even arisen because, he is yet to receive the Original Petition,
to be able to file a counter statement in contest.
6. We notice from the impugned order - as submitted by
Sri.Premchand - that an Advocate Commissioner had been earlier
appointed, who visited the bank locker and prepared an inventory
of the gold ornaments therein. The learned Court has, thereupon,
only directed the first respondent herein to file an affidavit
2024:KER:68053
OP (FC) NO. 517 OF 2024
specifying the items of gold that are hers; and she has been given
an opportunity to do so within the time frame fixed therein.
7. It is at this stage that the petitioners herein have
approached this Court with the apprehension that the learned
Family Court may allow the gold ornaments to be so specified by
the respondents herein, to be released to her.
8. We must say upfront that if the facts stated by
Smt.Lekshmi S.Sekher as afore, then certainly, the learned Family
Court must modulate its proceedings, so as to bring it in
conformity with the statutory requirements. Again, if as stated by
the petitioners, they have only received Ext.P1 notice under Form
8 as per Rule 4A(2) of the Rules, then it is for the learned Trial
Court first decide whether the parties should be sent for
mediation; and if not, or in the alternative if such mediation fails,
to issue summons to the respondents under Form 5, as per Rule
4A(5) of the "Rules", and then proceed to decide the matter.
9. Of course, in the peculiar circumstances presented,
perhaps, the learned Trial Court was without error in having
deputed an Advocate Commissioner to inspect the bank locker and
to make an inventory of the gold items therein, since it is possible
that, otherwise, the petitioners could have intervened and
2024:KER:68053
OP (FC) NO. 517 OF 2024
removed the same; but any further proceedings thereafter can be
done only after following the statutory proceedings.
10. Since the gold ornaments have now been already
traced by the Advocate Commissioner and since an inventory has
also been prepared and produced, we see no reason for the
parties to be prejudiced, if we direct the learned Family Court to
act as per the statutory prescriptions noticed above.
11. In the afore circumstances, we allow this Original
Petition and direct the learned Family Court to take any further
action pursuant to Ext.P6, including for the release of the gold
ornaments, only after following the statutory procedure as
mentioned above and after affording necessary opportunity to both
sides.
We however clarify that we have not entered into the
merits of any of the rival contentions relating to the claim; and
that all of them are left open to be decided appropriately by the
learned Family Court in due course.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
2024:KER:68053
OP (FC) NO. 517 OF 2024
APPENDIX OF OP (FC) 517/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE FORM-8 NOTICE ISSUED TO
PETITIONER NO-1 IN OP NO-393/2024 OF
HONBLE FAMILY COURT THRISSUR
Exhibit P1(a) TRUE COPY OF THE FORM-8 NOTICE ISSUED TO
PETITIONER NO-2 IN OP NO-393/2024 OF
HONBLE FAMILY COURT THRISSUR
Exhibit P2 TRUE COPY OF THE INTERIM APPLICATION AS
IA NO-2/2024 IN OP NO-393/2024 OF HONBLE
FAMILY COURT THRISSUR DATED 28.02.2024
Exhibit P3 TRUE COPY OF THE COMMISSION REPORT IN IA
NO-2/2024 IN OP NO-393/2024 OF HONBLE
FAMILY COURT THRISSUR DATED 30.04.2024
Exhibit P4 TRUE COPY OF THE IA NO-3/2024 IN OP NO-
393/2024 OF HONBLE FAMILY COURT THRISSUR
DATED 10.05.2024
Exhibit P5 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONERS IN IA NO-3/2024 IN OP NO-
393/2024 OF HONBLE FAMILY COURT THRISSUR
DATED 25.06.2024
Exhibit P6 TRUE COPY OF THE ORDER IN IA NO-3/2024 IN
OP NO-393/2024 OF HONBLE FAMILY COURT
THRISSUR DATED 02.07.2024
Exhibit P7 TRUE COPY OF THE AFFIDAVIT FILED BY THE
RESPONDENT NO-1 IN IA NO-3/2024 IN OP NO-
393/2024 OF HONBLE FAMILY COURT THRISSUR
DATED 06.07.2024
Exhibit P8 TRUE COPY OF THE AFFIDAVIT FILED BY THE
RESPONDENT NO-1 IN IA NO-3/2024 IN OP NO-
393/2024 OF HONBLE FAMILY COURT THRISSUR
DATED 09.07.2024
Exhibit P9 TRUE COPY OF THE OBJECTION FILED BY THE
2024:KER:68053
OP (FC) NO. 517 OF 2024
PETITIONERS IN IA NO-3/2024 IN OP NO-
393/2024 OF HONBLE FAMILY COURT THRISSUR
DATED 17.07.2024
Exhibit P10 TRUE COPY OF THE B-DIARY PROCEEDINGS IN
IA NO-3/2024 IN OP NO-393/2024 OF HONBLE
FAMILY COURT THRISSUR
Exhibit P11 TRUE COPY OF THE ADVOCATE COMMISSIONER
NOTICE ALONG WITH TYPED COPY IN IA NO-
3/2024 IN OP NO-393/2024 OF HONBLE FAMILY
COURT THRISSUR DATED 05.08.2024
Exhibit P12 TRUE COPY OF THE JUDGMENT IN OPFC NO-
502/2024 OF HONBLE HIGH COURT OF KERALA
DATED 05.08.2024
Exhibit P13 TRUE COPY OF THE B-DIARY PROCEEDINGS IN
IA NO-2/2024 IN OP NO-393/2024 OF HONBLE
FAMILY COURT THRISSUR
