A co-respondent seeking correction of a clerical mistake in an injunction order by the Family Court, challenging the dismissal of her application on procedural grounds regarding the date and production of the order.
The order dated 27.4.2012 dismissing the application is set aside. The lower court shall pass fresh orders within one month.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934
OP (FC).No. 1993 of 2012 (R)
I.A.NO.3403/2011IN OS.1341/2011 OF FAMILY COURT,THIRUVANANTHAPURAM
PETITIONER:COUNTER PETITIONER:
VALSALA SIVA RAJAN, AGED 54 YEARS W/O.SIVA RAJAN, FLAT NO 4B, HEERA PALACE, KOWDIYAR, THIRUVANANTHAPURAM
BY ADVS.SRI.B.SATHIQ
SRI.K.BABU (KILIMANOOR)
RESPONDENT: PETITIONER:
K. SIVARAJAN S/O.DAMODARAN, HOUSE NO EVRA 404, ESARAVILASOM ROAD, THYCAUD PO, THIRUVANTHAPURAM- 695 014.
BY ADV. SRI.BECHU KURIAN THOMAS BY ADV. SRI.ENOCH DAVID SIMON JOEL
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
O.P.(FC) NO.1993 OF 2012 R
Dated this the 19th day of July, 2012
JUDGMENT
K.T.Sankaran, J.
Petitioner is the wife of the respondent. The respondent/husband filed O.P.No.1341 of 2010 before the Family Court, Thiruvananthapuram against the petitioner/wife for a declaration and injunction. There are three schedules to the petition, namely, A, B and C. 'A' schedule consists of seven items of properties. It is stated by the husband that those items of properties in the 'A' schedule were acquired in the name of his wife using his funds; 'B' schedule property stands in the joint names of the husband and wife and 'C' schedule properties are the gold ornaments which are kept in the locker.
O.P.(FC) NO.1993 OF 2012 R
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an order on 4.10.2011 which was clarified on the same date stating that the petitioner's (plaintiff/husband's) right of enjoyment of plaint 'A' and 'B' schedule properties is not affected by the order. However, according to the defendant/wife, instead of mentioning as “counter petitioner”, it was mentioned in the order as “petitioner”. On 28.10.2011, the defendant/wife filed I.A.No.3403 of 2011 under Section 152 of the Code of Civil Procedure to correct the mistake in the order dated 4.10.2011. That application was dismissed by the Family Court as per the order dated 27.4.2012. Two reasons were stated for the dismissal of the application, namely, (1) The statement made by the defendant/wife that an order was passed in I.A.No.1912 of 2011 on 4.10.2011 is not correct. The order was passed on 19.9.2011. (2) A copy of the order sought to be corrected was not produced by the defendant/wife.
O.P.(FC) NO.1993 OF 2012 R
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appear to be correct in this regard. Even assuming that the order was passed on 19.9.2011, the application for correction should not have been dismissed only on the ground of a mistake in the date of the order. The finding of the court below that the order sought to be corrected should have been produced by the defendant/wife is also unsustainable. When the original order is before Court in the same file, it is not necessary for a party to produce a copy of the order to found a petition under Section 152 of the Code of Civil Procedure.
O.P.(FC) NO.1993 OF 2012 R
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a copy of this judgment. The court below shall take note of the contentions put forward by both parties and pass a speaking order.
The Original Petition (FC) is allowed as indicated above.
(K.T.SANKARAN) Judge
(M.L.JOSEPH FRANCIS) Judge
ahz/
3 issues framed by the court
Whether the Family Court correctly dismissed the application under Section 152 CPC for correcting a clerical mistake in an order.
Whether the date discrepancy in the order warrants dismissal of the correction application.
Whether production of a copy of the impugned order was mandatory for filing a correction petition when the original is before the court.
1 provisions across 1 enactments
Valsala Siva Rajan
K. Sivarajan
K.T. Sankaran
M.L. Joseph Francis
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
