Allowed

Jijikumari v. Praveen

Kerala HC8 Feb 2012OP (FC)/4054/2011

Case brief

AI extract

What is this about?

The High Court of Kerala intervened under Article 227 to set aside a Family Court order rejecting a civil petition for recovery of matrimonial assets due to alleged non-maintenance of verification and affidavit. The Court directed the Family Court to pass orders on the petition for permission to act via power-of-attorney holder and to cure procedural defects.

What did the court decide?

Impugned order rejected and set aside; Family Court directed to take decision on power-of-attorney permission and to return papers for verification and affidavit.

Jijikumari Vs Praveen — 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.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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WEDNESDAY, THE 8TH DAY OF FEBRUARY 2012/19TH MAGHA 1933 OP (FC).No. 4054 of 2011 ( ) ----------------------------

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PETITIONERS:

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JIJIKUMARI, D/O.SAVINIKUMARI,

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CHANDRALAYAM, ALAYAMON MURI, ANCHAL VILLAGE

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PATHANAPURAM TALUK, REPRESENTED BY HER POWER-OF-

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ATTORNEY HOLDER C.RAMACHANDRAN PILLAI.

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NIRALA PRAVEEN,

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D/O.JIJIKUMARI, MINOR, AGED 12

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IN DO. DO., REPRESENTED BY 1ST PETITIONER.

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BY ADVS.SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN

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RESPONDENTS:

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PRAVEEN, S/O.MADHAVAN NAIR, LOUSAILIL, T.C.NO.2/23262, PLAMOOD NO.3 T.P.NAGAR, PATTOM, THIRUAVANANTHAPURAM TALUK PIN 695 004.

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A.MADHAVAN NAIR,

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F/O.PRAVEEN, RESIDING AT DO. DO. DO.

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BY SRI.R.NIKHIL

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(F.C) 4054 OF 2011

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : TRUE COPY OF THE NOTICE ISSUED TO THE RESPONDENTS DT.24.6.11 EXT.P2 : TRUE COPY OF THE REPLY NOTICE SENT BY THE RESPONDENTS DT.7.7.11 EXT.P3 : TRUE COPY OF THE PETITION FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, KOTTARAKKARA DT.25.8.11.

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EXT.P4 : TRUE COPY OF THE ORDER PASSED IN UNNUMBERED O.P..../11 BY THE FAMILY COURT, KOTTARAKKARA DT.26.8.11

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RESPONDENT'S' EXHIBITS: NIL

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// TRUE COPY //

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

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C.) No.4054 of 2011 R

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8^th day of February, 2012

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JUDGMENT

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K.M. Joseph J.,

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The petitioners have approached this Court with the following reliefs:

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(i) call for the records relating to Ext.P4 order and set aside Ext.P4 order in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India;

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(ii) pass an order restoring the petition to file and directing the Family Court, Kottarakkara to permit the petitioners, represented by their power-of-attorney holder, to cure the defects and thereupon proceed with the case in accordance with law;

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(iii) grant the petitioners such other appropriate reliefs that this Court may deem fit and proper on the facts in the circumstances of the case:

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(iv) grant the petitioners such other appropriate

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interim reliefs that the petitioners pray from time to time during the pendency of this O.P.(F.C).

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Petitioners are the petitioners in an unnumbered O.P. of

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2011 before the Family Court, Kottarakkara. The first petitioner is the wife of the first respondent, 2^nd petitioner is the daughter of the first respondent and 2^nd respondent is the father of the first respondent. The O.P., which purports to be Ext.P3 petition was filed for recovery of gold ornaments and realisation of money and also for maintenance of the 2^nd petitioner. It is the case of the petitioners that due to an inadvertent omission, Ext.P3 petition was omitted to be verified by the person filing it, namely, the power of attorney holder. So also, an affidavit as contemplated under Order VI Rule 15(4) of the Code of Civil Procedure was omitted to be annexed. By the impugned order (Ext.P4), the Family Court has rejected the petition. Following is the order (Ext.P4) passed in the O.P:

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“The petitioner is abroad. The original petition was filed by the father of the petitioner and pleadings were

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O.P.(F.C.) No.4054 of 2011

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signed by him. This is a matrimonial matter, where in there is no proper for divorce. The prayer in the original petition is for the return of money and gold ornaments to the wife. The amount of money and gold ornaments are given to the matrimony consisting of the petitioner and her husband without a break in the marriage or without a breaking down of the marriage, irretrievably, the withdrawal of the monetary assets would only help in the breakage of the marriage. In the circumstance, and on the pleadings, I find that the original petition presented with the pleadings signed by the power of Attorney holder, without the endorsement of all the facts stated in the pleadings, by way of an affidavit of the original petitioner, the original petition is bound to be rejected. Accordingly it is rejected.”

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We heard learned senior counsel for the petitioners and learned counsel for the respondents.

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Learned senior counsel for the petitioners would point out

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that the reasoning employed by the Family Court that this is a matrimonial matter, where there is no proper (we were requested to understand it as 'prayer') for divorce and the prayer in the original

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petition is for return of money and gold ornaments to the wife given to the matrimony consisting of the petitioner/wife and her husband without a break in the marriage or without a breaking down of the marriage, irretrievably, the withdrawal of the monetary assets will help in the breakage of the marriage are all unsustainable. He would submit that they are irrelevant and cannot be stated to be good grounds for non-consideration or rejection of the petition. He, no doubt, submits that there was an omission in the matter of non-compliance with the provisions contained in Order VI Rule 15 (1) of the Code of Civil Procedure, i.e., there was no verification and that there was no affidavit meant within the meaning of Order VI Rule 15(4) of the Code of Civil Procedure. But according to him, the petition should have been returned permitting the petitioners to cure those defects. In this regard, the learned senior counsel relies on Rule 23 of Civil Rules of Practice, Kerala. He would further contend that having regard to Order VII Rule 11 of Code of Civil Procedure there is no ground at all for the Family Court to reject the petition. He would submit that none of the

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grounds contained in Order VII Rule 11 of the Code of Civil Procedure are attracted in this case. Accordingly he would submit that the rejection was, at any rate, illegal and unsustainable.

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Per contra, learned counsel for the respondents would submit that the petition itself is not maintainable. According to him, in the first place, the petition was sought to be filed through the middle strength of a power of attorney holder. He invited our attention to Rule 22 of Civil Rules of Practice. Rule 22(2) of Civil Rules of Practice reads as follows:

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“The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party, and until the said permission is granted, no appearance, application or act of the agent shall be recognised by the Court.”

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He would pose the question as to how a person coming under the meaning of a power of attorney holder before a Court could act in the matter, unless permission is sought and obtained under Rule 22 of Civil Rules of Practices. He would submit that without permission being granted there was no authority to the power of

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attorney holder to act in the matter. Next, he would contend that since the power of attorney holder was not given the authority under Rule 22 of Civil Rules of Practices, this can be characterised as a case where there was no cause of action made out within the meaning of Order VII Rule 11(a) of the Code of Civil Procedure. No further meanings are made out within Order VII Rule 11. The rejection was proper. If the rejection was proper, the rejection of a plaint will tantamount within Rule 22 of Civil Rules of Practice. If it is a decree, the petitioners have the right under Section 19 of the Family Courts Act to prefer a supplementary appeal. Then the petition under Rule 22 of Civil Rules of Practice will not lie. Learned counsel for the respondents do not seriously contest the contention of the petitioners that the reasoning about the subsistence of matrimony is something blocked in the permission of the petition, cannot be sustained. Learned counsel for the respondents would submit that it is open to the petitioners to file a fresh petition. He also submits that this is a matter in which it is for the petitioners to decide whether they should file a fresh application

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and there is a vital flow in the order can be obtained.

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Per contra, learned senior counsel for the petitioners would

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point out that it can be characterized as there is no cause of action. He would, in this regard, in particular, point out that this was not the basis on which the Family Court dealt with the matter. The Family Court, by the impugned order, does not reason that the petition filed by the petitioner is liable to be rejected on the basis that it does not present a cause of action. It is naturally a defect which the Family Court could have permitted the petitioner/ power of attorney holder to move and cure defects. Since there was some dispute as to whether a petition was filed within the meaning of Rule 22 of Civil Rules of Practice, we called for a report from the Family Court, Kottarakkara and the Family Court reported that the petition leading to Ext.P4 was filed on 26.8.2011 and it was rejected by Ext.P4 order on the very same date and that no order other than the order rejecting the petition was passed. We were not satisfied with that reply. We were informed that a petition under Rule 22 of Civil Rules of Practice has been presented.

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Therefore a further report was called for and in that report it was reported that the Sheristadar informed that along with the unnumbered O.P. of 2011, an unnumbered I.A. was also filed and that no separate order other than Ext.P4 has been passed in the unnumbered I.A. Ext.P4 purports to be rejection of the petition on the basis that it does not disclose any cause of action and we have adverted to the reasoning, which we have already given.

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A factual position which emerges on the basis of the report

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and also the submissions made by the learned senior counsel for the petitioners and also the materials produced before us is as follows. The petitioners failed to file a petition apparently under Rule 22 of Civil Rules of Practice, wherein permission is sought to be represented by a power of attorney holder. No order has been passed on the same. The only order that has been passed on both the said I.A. and the main petition is Ext.P4. As far as Ext.P4 is concerned, we are inclined to think that the reasoning adopted by the Family Court about the marriage being subsistent and the petition for return of money and gold ornaments are absolutely

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irrelevant. We may at the same time hasten to add that this case may be a relevant matter for the Family Court to bear in mind if the Family Court itself act to exercise its powers/duties within the meaning of Rule 7 of the Family Courts (Kerala) Rules 1989, that is to say it may be open to the Family Court to advise and stay the execution of process of the opposite party, in the interest of preserving matrimony in a particular case. But we would think that the Family Court cannot furnish a ground in which a petition drawn out seeking return of gold ornaments can be dismissed. In other words, the pendency of marriage cannot take away the right of the party, if the party is so advised. Such relief is available to him or her which comes within the ambit of explanation under Rule 7 of the Family Court Act before the Family Court.

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We have adverted to Rule 22 of the Civil Rules of Practice. We were in agreement with the learned counsel for the respondents that before any act can be performed by a power of attorney holder, the Judge may record in writing that the agent is permitted to appear and act on behalf of the party; and until the said

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permission is granted, no appearance, application or act of the agent shall be recognised by the Court. Therefore the Court should have taken the application under Rule 22 of the Civil Rules of Practice.

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Learned senior counsel would also submit that the power of attorney was also produced. If the Family Court has decided to permit the power of attorney holder to act in the matter, then the Court finds that there is an omission that there is no verification or there is no affidavit, permission is granted to insert necessary authentication, which is permissible and contemplated.

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In the circumstances of the case, we feel that we would be justified in interfering with the matter, under Article 227 of the Constitution of India. Accordingly we set aside the impugned order (Ext.P4). We further direct the Family Court to take up the petition filed under Rule 22 of the Civil Rules of Practice, Kerala and take a decision in the matter. If the Family Court decides to permit the petitioner/ power of attorney holder to act in the matter, the Family Court will also give an opportunity to the petitioner / power of attorney holder to insert verification by returning the papers and

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also to file an affidavit.

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K.M. JOSEPH,

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(JUDGE)

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M. L. JOSEPH FRANCIS, (JUDGE)