Dismissed

P.Saraswathi v. Krishnadas P.

Kerala HC13 Jun 2012OP (FC)/366/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the appeal against the Family Court's order allowing an application to amend a petition for guardianship. The amendment sought to add an alternative prayer for sole guardianship, which the lower court held was necessary to avoid multiplicity of proceedings and determine real questions without changing the suit's nature.

What did the court decide?

Original Petition against the amendment order is dismissed; the Family Court order allowing the amendment is upheld.

P.Saraswathi Vs Krishnadas P. — Civil Procedure and Limitation | Kerala HC (2012)

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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 K.T.SANKARAN

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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WEDNESDAY, THE 13TH DAY OF JUNE 2012/23RD JYAISHTA 1934

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OP (FC).No. 366 of 2012 (R)

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OP.599/2001 of FAMILY COURT,KOZHIKODE I.A.2316/11 IN OP.599/2001 of FAMILY COURT,KOZHIKODE

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PETITIONER(S):

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P.SARASWATHI,

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W/O.LATE CHANDRAN, PILAKKATTU HOUSE, KOKKILATTU

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MANNUR POST, KADALUNDI, KOZHIKODE-673 328.

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BIJU CHANDRAN

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S/O.LATE CHANDRAN, PILAKKATTU HOUSE, KOKKILATTU

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MANNUR POST, KADALUNDI

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KOZHIKODE-673 328 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER

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PILAKKAT VASU

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S/O.NAYADI, RESIDING AT PARUTHIKKAT HOUSE

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MANNUR AMSOM AND DESOM OF KOZHIKODE TALUK.

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BY ADV. SRI.P.V.KUNHIKRISHNAN

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RESPONDENT(S):

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KRISHNADAS P.

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S/O.LATE VELU, PAZHANCHERI HOUSE, OLAVANNA POST KOZHIKODE-673 025.

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GEETHA BAI

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W/O.KRISHNADAS, PAZHANCHERI HOUSE, OLAVANNA POST KOZHIKODE-673 025.

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BY ADV. SRI.MANJERI SUNDERRAJ

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC) NO.366/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1- A COPY OF THE POWER OF ATTORNEY EXECUTED BY BIJU PILAKKAT IN FAVOUR OF PILAKKAT VASU DATED 12.12.2011.

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EXHIBIT P2- A COPY OF OP 599/2011 FILED BY THE RESPONDENTS DATED 2.8.2011 BEFORE THE FAMILY COURT, KOZHIKODE.

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EXHIBIT P3- A COPY OF THE COUNTER FILED BY THE PETITIONERS IN OP 599/2011 BEFORE THE FAMILY COURT, KOZHIKODE IN NOVEMBER 2011.

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EXHIBIT P4- A COPY OF THE PETITION FILED BY THE RESPONDENTS AS IA NO.2316 IN OP 599/2011 BEFORE THE FAMILY COURT, KOZHIKODE DATED 19.12.2011.

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EXHIBIT P5- A COPY OF THE COUNTER FILED BY THE PETITIONERS DATED 28.12.2011.

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EXHIBIT P6- A COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONERS DATED 29.12.2011 BEFORE THE FAMILY COURT, KOZHIKODE.

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EXHIBIT P7- A COPY OF THE ORDER DTED 30.12.2011 IN IA NO.2316 OF 2011 IN OP NO.599/2011 ON THE FILE OF FAMILY COURT, KOZHIKODE.

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RESPONDENTS' EXHIBITS : NIL.

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(TRUE COPY)

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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O.P.(F.C.) No.366 of 2012

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----------------------------------------------Dated 13^th June, 2012.

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J U D G M E N T

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K.T.Sankaran, J.

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The respondents herein filed O.P.(GW) No.599/2011

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on the file of the Family Court, Kozhikode, against the petitioners herein, for the following reliefs :

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“(a) appointing and declaring the petitioners jointly and severally as the guardian of the person of the aforesaid Hindu female minor Devananda, born on 05/07/2010 with leave to have her exclusive custody.

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(b) granting such other or further relief as are, in all the circumstances of the case, deemed fit.”

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Sujana, the daughter of the respondents was

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married to Haneeshkumar, the son of the first petitioner and brother of the second petitioner. In that wedlock, two children, namely, Devathirtha and Devananda were born. Sujana, Haneeshkumar and Devathirtha died in a road traffic accident, on 31.5.2011. The dispute before the Family Court is regarding the guardianship of Devananda.

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The Original Petition before the Family Court was filed on 2^nd August, 2011. The respondents filed

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OP(FC) 366/12

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I.A.No.2316/11, on 19^th December, 2011, for amendment of the plaint to incorporate an alternative prayer in the petition. The alternative prayer is the following :

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“In the alternative appoint the 1^st petitioner Krishnadas P. as the sole guardian of person of the said minor Hindu female Devananda born on 05/07/2010 with leave to have her exclusive custody.”

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I.A.No.2316/11 is supported by an affidavit dated 16^th December, 2011, sworn to by the respondents. The application for amendment was opposed by the petitioners. They contended that trial of the case had already commenced by the filing of the chief affidavit on 17.12.2011. The application for amendment of the petition having been filed on 19.12.2011, it was contended that the application should stand the test of the proviso to Rule 17 of Order VI of the Code of Civil Procedure, 1908.

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The court below allowed I.A.No.2316/11 by the order dated 30^th December, 2011, which is under challenge in this Original Petition (Family Court). The court below held that

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OP(FC) 366/12

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the proposed amendment is highly necessary for a fair and proper determination of the issues involved in the case. It was also held by the court below that if the amendment is not allowed, there is a chance of multiplicity of proceedings as well.

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The learned counsel for the petitioners herein (respondents before the court below) submitted that no grounds are made out for amendment of the petition, after trial has commenced. There is no finding that in spite of due diligence, the party applying for amendment could not have raised the matter before commencement of the trial. The learned counsel relied on the decision of the Supreme Court in Vidyabai v. Padmalatha [2009(1) KLT SN 14 (Case No.13) SC].

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In Vidyabai's case (supra), the Supreme Court relied on the decision in Rajesh Kumar Aggarwal v. Modi [(2006)4 SCC 385] = [(2006 (3) KLT 192 (SC)]. In Vidyabai's case (supra), it was held that filing of an affidavit in lieu of chief examination would amount to commencement of proceeding.

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OP(FC) 366/12

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In Rajesh Kumar Aggarwal's case (supra), the Supreme Court held that amendment could be allowed, if the basic structure of the suit is not changed and when there is only a change in the nature of the relief claimed.

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It is well settled that an amendment of plaint can be made, if the amendment is required for determining the real questions involved in the suit between the parties. It is also well settled that if the proposed amendment does not change the nature and character of the suit, but it only makes a different approach to the existing facts, the amendment of plaint should be allowed.

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Section 10 of the Family Courts Act, 1984 (hereinafter referred to as 'the Act') provides that subject to the other provisions of the Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973] before a Family Court and for the purposes of

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OP(FC) 366/12

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the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. Sub-section (3) of Section 10 of the Act provides that nothing in sub-Section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by one party and denied by the other. Sub-section (3) of Section 10 of the Act contemplates two contingencies; (1) to arrive at a settlement in respect of the subject matter of the suit or proceeding and (2) to arrive at the truth of the facts alleged by one party and denied by the other. Sub-section (3) of Section 10 is an exception to sub-sections (1) and (2). If for arriving at the truth of the facts, a deviation from the procedure laid down in the Code of Civil Procedure is required, the Family Court would have jurisdiction to resort to the same. Section 20 of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in

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OP(FC) 366/12

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any other law for the time being in force. Section 13 of the Act states that no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. The proceedings before the Family Court and the proceedings before the Civil Court are not of the same character. Section 16 of the Act provides for reading in evidence the affidavit of a formal character. The rigor of the procedure in respect of suits before the Civil Court as such may not apply in respect of the proceedings before the Family Court. Speedy settlement of the disputes relating to marriage and family affairs is aimed at by the establishment of Family Courts.

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In the present case, even in the relief originally claimed, the petitioners before the Family Court prayed for appointing and declaring them jointly and severally as the guardian of the minor. By incorporating an alternative prayer, they prayed that at least, the first petitioner may be appointed as the sole guardian of the minor. Even without the alternative

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OP(FC) 366/12

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relief, the Family Court could appoint the first petitioner in the case as the sole guardian, in the nature of the relief prayed for originally in the petition. The alternative prayer is only an additional approach to the facts already pleaded in the case. Moreover, it is stated in the affidavit accompanying the application for amendment of the petition that the respondents before the court below raised an objection that appointment of joint guardians is not permissible. Even after maintaining that the said contention is not legal and proper, by way of abundant caution, the petitioners before the Family Court sought for incorporating the alternative prayer in the petition. To avoid multiplicity of proceedings and to enable the Family Court to determine all the disputes involved in the case, it is necessary to allow the amendment, as held by the Family Court. By allowing the amendment, the opposite party is not put to surprise or to prejudice. The alternative prayer does not require any additional materials to be proved or disproved. The proposed amendment is in tune with the contentions raised by

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OP(FC) 366/12

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the respondents before the court below. Moreover, there was no delay in making the application for amendment of the petition.

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For the aforesaid reasons, we are of the view

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that the court below was justified in allowing the application for amendment. No grounds are made out for the exercise of the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India. The Original Petition (Family Court) is, accordingly, dismissed.

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Sd/-

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K.T.SANKARAN, JUDGE.

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Sd/-

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M.L.JOSEPH FRANCIS, JUDGE.

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tgs

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(true copy)

P.Saraswathi v. Krishnadas P.

Case brief

What is this about?

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P.Saraswathi v. Krishnadas P.

Case brief

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