Kerala High Court
K.G. Somasekharan Nair @ Kgss Nair vs B. Indira on 10 February, 2025
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
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
OP (FC) NO. 73 OF 2025
AGAINST THE ORDER DATED 18.01.2025 IN IA NO.3/2024 IN OP
NO.627 OF 2024 OF FAMILY COURT,THIRUVANANTHAPURAM
PETITIONER/PETITIONERS IN IA NO.3/2024/RESPONDENTS 1 & 2 IN OP
NO.627 OF 2024 :
1 K.G. SOMASEKHARAN NAIR @ KGSS NAIR, AGED 72 YEARS
S/O LATE GOPALAN NAIR, RESIDING AT GOPEEVIJAYAM, TC
49/1112, STUDIO ROAD, ESTATE P O, THIRUVANANTHAPURAM
DISTRICT, PIN - 695019
2 ROHITH S NAIR, AGED 23 YEARS
S/O K.G. SOMASEKHARAN NAIR, RESIDING AT GOPEEVIJAYAM,
TC 49/1112, STUDIO ROAD, ESTATE P O, THIRUVANANTHAPURAM
DISTRICT, PIN 695019 REPRESENTED BY HIS POWER OF
ATTORNEY HOLDER HIS FATHER, K.G. SOMASEKHARAN NAIR @
KGSS NAIR, AGED 72 YEARS, S/O LATE GOPALAN NAIR,
RESIDING AT GOPEEVIJAYAM, TC 49/1112, STUDIO ROAD,
ESTATE P O, THIRUVANANTHAPURAM DISTRICT, PIN - 695019
BY ADV K.RAJESH KANNAN
RESPONDENT/RESPONDENT IN IA NO.3/2024/PETITIONER IN OP
NO.627/2024:
B. INDIRA, AGED 74 YEARS
W/O K.G. SOMASEKHARAN NAIR @ KGSS NAIR, RESIDING AT
CHALLENGE HOUSE, MUTTAKKAD, VENGANOOR P O,
THIRUVANANTHAPURAM DISTRICT, PIN - 695523
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
10.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 73 OF 2025
2
JUDGMENT
Devan Ramachandran, J.
The petitioners challenge Ext.P11 order of the learned
Family Court, Thiruvananthapuram, since it has rejected their
application praying that the question of maintainability of OP
No.627/2024 be decided even before evidence.
2. Sri.K.Rajesh Kannan - learned counsel for the
petitioners, argued that the Original Petition in question has been
instituted by the respondent herein in blatant disregard to an
earlier judgment and decree that binds the parties; and hence
that it is not maintainable within the ambit of Section 11 of the
Code of Civil Procedure, read with Order XXIII Rule 3A thereof.
He argued that when the situation is so discernible, the learned
Family Court ought to have considered his client's application,
namely IA No.3/2024, on its merits, rather than have deferred it,
saying that the question of maintainability will be considered as
an issue during trial.
3. Even though we have heard Sri.K.Rajesh Kannan -
learned counsel for the petitioners in great detail today, his own
arguments indicates that the case of his client is that the parties
are bound by an earlier decree and that substantial compliance
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OP (FC) NO. 73 OF 2025
thereof have already been obtained. He also has a contention
that the respondent had abandoned her claims in the earlier
Original Petition, when she agreed to a compromise, which was
then recorded by the learned Family Court under Order XXIII of
the CPC; and therefore, that her attempt to file a new Original
Petition is an abuse of process, since the disputes involved are hit
by the principles of res judicata.
4. It is thus obvious that, even going by the submissions
on behalf of the petitioners, there are several factual issues and
factors involved and not merely legal questions; which, therefore,
justifies the stand of the learned Family Court to decide the
question of maintainability of the Original Petition after trial.
5. To paraphrase, had the issue involved been solely
within the legal realm, then a Court could decide that the
question of maintainability at the initial instance; but when facts
are involved - which is evident from the arguments of the
petitioners and the pleadings on record itself - it will have to be
decided only after the parties are taken to trial. For this purpose,
the trial can either be with specific reference to the question of
maintainability, or on every other issue to be raised by the
learned Family Court; and this will have to be left to the
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OP (FC) NO. 73 OF 2025
discretion of the said Court as per law.
In the afore circumstances, we see no reason to disturb
Ext.P11 at this stage because we are certain that the learned
Family Court will decide the question of maintainability as per
law, in due course.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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OP (FC) NO. 73 OF 2025
APPENDIX OF OP (FC) 73/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POWER OF ATTORNEY DATED
14.05.2024 EXECUTED BY 2ND PETITIONER IN THE
NAME OF 1ST PETITIONER
Exhibit P2 TRUE COPY OF THE O.P NO.627/2024 ON THE FILE
OF THE HONOURABLE FAMILY COURT,
THIRUVANANTHAPURAM DATED NIL
Exhibit P3 TRUE COPY OF THE I.A NO: 1/2024 IN O.P
NO.627/2024 ON THE FILE OF THE HONOURABLE
FAMILY COURT, THIRUVANANTHAPURAM DATED NIL
Exhibit P4 TRUE COPY OF THE ORDER DATED 25/03/2024 IN
I.A. NO: 1/2024 IN O.P NO.627/2024 OF THE
HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM
Exhibit P5 TRUE COPY OF THE OBJECTION IN I.A. NO.1/2024
IN O.P NO.627/2024 ON THE FILE OF THE
HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM
DATED NIL, FILED BY THE FIRST PETITIONER
HEREIN
Exhibit P6 TRUE COPY OF THE OP (HMA) NO. 3091/2022
DATED 21.11.2022 ON THE FILE OF THE
HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM
FILED BY THE RESPONDENT HEREIN
Exhibit P7 TRUE COPY OF THE COMPROMISE PETITION IN O.P
NO.627/2024 ON THE FILE OF THE HONOURABLE
FAMILY COURT, THIRUVANANTHAPURAM FILED BY
THE PARTIES UNDER ORDER XXIII RULE 3 CPC
DATED NIL
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 16/08/2023
IN OP (HMA) 3091/2022 OF THE HONOURABLE
FAMILY COURT, THIRUVANANTHAPURAM
Exhibit P9 TRUE COPY OF THE I.A NO: 3/2024 IN OP
627/2024 ON THE FILE OF THE HONOURABLE
FAMILY COURT, THIRUVANANTHAPURAM, FILED BY
THE PETITIONERS HEREIN DATED 11.6.2024
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OP (FC) NO. 73 OF 2025
Exhibit P10 TRUE COPY OF THE OBJECTION IN I.A. NO.3/2024
IN O.P NO.627/2024 ON THE FILE OF THE
HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM
DATED NIL
Exhibit P11 TRUE COPY OF THE ORDER DATED 18.01.2025 IN
I.A NO: 3/2024 IN O.P NO: 627/2024 OF THE
HONOURABLE FAMILY COURT, THIRUVANANTHAPURAM
