Kerala High Court
Sabitha vs Sheril Abdul Azeez on 10 January, 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
FRIDAY, THE 10TH DAY OF JANUARY 2025 / 20TH POUSHA, 1946
OP (FC) NO. 791 OF 2024
AGAINST THE ORDER DATED 19.11.2024 IN IA 4/2024 IN OP NO.506
OF 2014 OF FAMILY COURT,KOLLAM
PETITIONER/RESPONDENT/PETITIONER IN OP:
SABITHA, AGED 39 YEARS
D/O ABDUL SALEEM,KUTTIYIL ARCHANA,PERUMPUZHA P.O,
KOLLAM, PIN - 691504
KIROSH RAJAN PONNAMBIL
BABU CHERUKARA
RESPONDENTS/PETITIONERS/RESPONDENTS IN OP:
1 SHERIL ABDUL AZEEZ, AGED 42 YEARS
S/O ABDUL AZEEZ, ALUMMOOTTIL HOUSE, KEERIKADU P.O,
PATHIYOOR, ALAPUZHA REPRESENTED BY ABDUL AZEEZ, AGED 72
YEARS,S/O LATE UMMERKUTTY, ALUMMOOTIL HOUSE, KEERIKADU
P.O,PATHIYOOR, ALAPUZHA, PIN - 690508
2 ABDUL AZEEZ, AGED 72 YEARS
S/O LATE UMMERKUTTY, ALUMMOOTTIL HOUSE, KEERIKADU P.O,
PATHIYOOR, ALAPUZHA, PIN - 690508
3 RAMLA BEEVI, AGED 67 YEARS
W/O ABDUL AZEEZ, ALUMMOOTTIL HOUSE, KEERIKADU P.O,
PATHIYOOR, ALAPUZHA, PIN - 690508
SRI JOHNSON GOMEZ
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
10.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 791 OF 2024
2
JUDGMENT
Devan Ramachandran, J.
This case presents a very peculiar and strange factual
scenario.
2. The respondents filed a written statement in OP
No.506/2014 on 28.03.2017. It transpires that several years
later, in July, 2024, at the time when the matter was scheduled
for trial, the respondents filed another written statement dated
31.07.2024; and asserted that the first one was not authorised
by them, but was presented by their counsel misusing certain
papers which had been "pre-signed". They thereupon filed
Ext.P4 application, which was numbered as I.A.No.4/2024,
making two prayers, namely, that their first written statement
dated 28.03.2017 be "struck off" and they be allowed to
proceed with a second written statement dated 31.07.2024; or
that they be given permission to amend the first written
statement dated 28.03.2017.
3. The learned Family Court, Kollam allowed Ext.P4
application through Ext.P6 order, thus "striking off" the first
written statement dated 28.03.2017 and allowing the
respondents to proceed with the second written statement
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OP (FC) NO. 791 OF 2024
dated 31.07.2024.
4. The impugned order is challenged by the petitioner
on various grounds.
5. Sri.Kirosh Rajan Ponnambil - learned counsel for
the petitioner, argued that the procedure adopted by the
learned Family Court is unheard of in law because, the first
written statement contains certain admissions which his client
was entitled to use in her favour. He relied upon various
precedents, including Malla Reddy S. v. M/s.Future Builders Co-
operative Houseing Society & Others [2013 KHC 4325], to
assert that such a procedure has been severely deprecated by
the Hon'ble Supreme Court.
6. In response, Sri.Johnson Gomes - learned counsel
for the respondents, argued that when his clients were able to
convince the learned Family Court that their first written
statement dated 28.03.2017 was a product of fraud, it was
certainly permissible for them to have moved Ext.P4; and
therefore, that the learned Court did not commit any error in
having issued Ext.P6 order.
7. We have considered the afore rival submissions
very intently.
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OP (FC) NO. 791 OF 2024
8. Most of the facts relevant to our consideration in
this case are not in dispute.
9. The factum of the respondents having filed their
first written statement dated 28.03.2017 and a subsequent
written statement dated 31.07.2024, is expressly admitted; and
that the respondents filed Ext.P4 with the aforementioned
prayers is also without dispute.
10. Therefore, the only question is whether the
learned Family Court was in error in having issued Ext.P6
order, thus virtually "striking off' the first written statement of
the respondents dated 28.03.2017, and permitting them to rely
solely upon their second written statement dated 31.07.2024.
11. We have no doubt, particularly guided by Malla
Reddy S. (supra), that the approach of the learned Family
Court cannot be forensically supported.
12. This is because, the Hon'ble Supreme Court in
Heeralal v. Kayalan Mal and Others [1998 (1) SCC 278], has
held without any room for doubt that, once the written
statement contains admissions in favour of a party, even the
amendment of the same cannot be allowed and that this would
amount to totally altering the case, which would cause
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OP (FC) NO. 791 OF 2024
irretrievable prejudice to the person relying upon the same.
The said judgment even goes to extend that no additional
written statement should be allowed to be set up creating a
new case, which is a direct variance in the original written
statement, so as to completely change the issues in the case.
This judgment has been relied upon in Malla Reddy S. (supra).
13. In the case at hand, the petitioner asserts that the
first written statement of the respondents dated 28.03.2017
contains certain admissions which are in her favour. This
aspect has not been considered by the learned Family Court,
but it has proceeded to allow the first prayer in Ext.P4
application in a rather cursory manner.
14. We are afraid that we cannot find favour with this.
As we have said above, the proper remedy for the respondents
was not to make an application akin to Ext.P4, since it seeks
alternatively that the first written statement be "struck off",
which is not permissible; and that, otherwise, he be allowed to
amend the said written statement. No such prior permission to
file an application for amendment was necessary. If the
petitioner was so interested, he could have moved an
application for such amendment but instead of doing so, he
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chose to file the present application wherein he made it only as
an alternative plea; and that too, seeking permission to file an
amendment application in future. Even though this application
is seen to be filed under order VI Rule 16 and 17 of the CPC, it
is ex facie clear that these provisions would not apply in the
ambit of the prayers made. We, therefore, cannot find any
reason why the learned Family Court should have allowed
Ext.P4 in the manner as it has done, and reflected in Ext.P6.
In the afore circumstances, we allow this Original
Petition and set aside Ext.P6 and declare that no further action
on Ext.P4 can be taken forward; however, leaving every other
liberty that may be available to the parties open, to be invoked
and pursued by them as per law, without being trammelled by
any of our observations.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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OP (FC) NO. 791 OF 2024
APPENDIX OF OP (FC) 791/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION
NO.506/2014 BEFORE THE FAMILY COURT KOLLAM
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT DATED
28-3-2017
Exhibit P3 TRUE COPY OF THE FRESH WRITTEN STATEMENT
DATED 31-7-2024
Exhibit P4 TRUE COPY OF THE I.A NO.4/2024 DATED 23-9-
Exhibit P5 TRUE COPY OF THE OBJECTION DATED 15-10-2024
Exhibit P6 TRUE COPY OF THE ORDER DATED 19-11-2024 IN
