Allowed

Sainudeen v. Rehana

Kerala HC21 Nov 2012OP (FC)/3184/2012

Case brief

AI extract

What is this about?

Petitioners challenged a Family Court order dismissing an application questioning a maintainable main petition. The High Court rejected the challenge, noting that despite the death of a party to a prior compromise affecting enforceability, trial must proceed and parties can rely on those admissions.

What did the court decide?

Challenge against the Family Court order dismissing I.A. No.1449/2012 (which held main petition maintainable) was rejected.

Sainudeen Vs Rehana — Kerala HC (2012) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE &

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THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH

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WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934

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OP (FC).No. 3184 of 2012 (R)

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ORDER IN I.A.1449/2012 IN OP.1086/2010 of FAMILY COURT, KOTTARAKKARA

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PETITIONERS:

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1.SAINUDEEN, AGED 73 YEARS, S/O.ALIYAR RAWTHER, ALANKARATHU VEEDU, VALAKKODU VILLAGE, PATHANAPURAM TALUK, KOLLAM. 2.JAMEELA SAINUDEEN, W/O.SAINUDEEN, ALANKARATHU VEEDU, VALAKKODU VILLAGE, PATHANAPURAM TALUK, KOLLAM.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENT:

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REHANA, D/O.MISSIRIA, ROSE VILLA, PUNALUR VILLAGE AND P.O., PATHANAPURAM TALUK, KOLLAM, PIN-691305.

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BY ADV. DR.PAULY MATHEW MURICKEN

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(F.C.) 3184/2012

APPENDIX

PETITIONERS' EXTS.:

EXT.P1: THE TRUE COPY OF THE I.A.NO.2097/2011 IN O.P.NO.1086/2010 OF THE FAMILY COURT, KOTTARAKKARA.

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EXT.P2: THE TRUE COPY OF THE I.A.NO.1449/2012 IN O.P.NO.1086/2010 OF THE FAMILY COURT, KOTTARAKKARA.

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EXT.P3: THE TRUE COPY OF OBJECTION TO EXT.P2 APPLICATION FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, KOTTARAKKARA.

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EXT.P4: THE TRUE COPY OF THE ORDER DATED 25.8.2012 IN I.A.NO.449/2012 IN O.P.NO.1086/2010 OF THE FAMILY COURT, KOTTARAKKARA.

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PIUS C.KURIAKOSE & BABU MATHEW P.JOSEPH, JJ.

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O.P.(F.C.). No.3184 of 2012

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Dated this the 21^st day of November, 2012

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Judgment

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Pius C.Kuriakose, J.

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Under challenge in this Original Petition filed under Article 227 of the Constitution by the petitioners who are the legal heirs of Asharaf Ali who was the respondent before the Family Court is Ext.P4 order. Ext.P4 order is passed in I.A.No.1449/2012 in O.P.No.1086 of 2010 which was filed by the petitioners questioning the maintainability of the main petition, O.P.No.1086 of 2010 in the teeth of Ext.P1 compromise petition. The learned Judge of the Family Court dismissed the I.A. and held that the Original Petition is maintainable. According to the learned Judge, the compromise has not taken effect consequent on the death of Asharaf Ali, the predecessor-in-interest of the petitioners. The court also has opined that Ext.P1 compromise is not in consonance with Order 23 C.P.C. We cannot agree with the

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O.P.(F.C.) 3184/12

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view of the court regarding Order 23 C.P.C. But the fact remains is that Asharaf Ali who is one of the parties to Ext.P1 compromise petition is no more and clause No.1 in Ext.P1 which seems to be the most important among the various clauses in the compromise petition has become unenforceable. Asharaf Ali, no longer is employed at Trivandrum nor will it possible for him to purchase a house at Trivandrum for accommodating the respondent. The grievance of the learned counsel for the petitioners is that the respondent has derived benefit from out of Ext.P1. The litigations which were pending against the respondent were withdrawn pursuant to Ext.P1.

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The question that arises for consideration before us is whether we should interfere with Ext.P4 wherein the court has directed the main petition to be tried and disposed of in accordance with law. The above question can be answered only in the negative. We turn down the challenge against Ext.P4 observing that it is open to the petitioners to take

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O.P.(F.C.) 3184/12

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advantage of the admissions made by the respondent in

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Ext.P1 and also to raise all other contentions which may be

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available to the petitioners in the light of Ext.P1.

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The Original Petition is disposed of as above.

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PIUS C.KURIAKOSE, JUDGE

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BABU MATHEW P.JOSEPH, JUDGE

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srd

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O.P.(F.C.) 3184/12 4

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O.P.(F.C.) 3184/12 5

Sainudeen v. Rehana

Case brief

What is this about?

What did the court decide?

Sainudeen v. Rehana

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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