Dismissed

P.G.Rapheal v. Sallykutty Joseph

Kerala HC12 Feb 2018Mat.Appeal/617/2009

Case brief

AI extract

What is this about?

The High Court dismissed the matrimonial appeal challenging the Family Court's decree for the return of gold ornaments. The Court excluded the appellant's additional written statement for violation of CPC procedure, held his original denial was evasive, and found he failed to prove the ornaments were returned.

What did the court decide?

Appeal dismissed; decree of Family Court upheld; no costs to appellant.

P.G.Rapheal Vs Sallykutty Joseph — Matrimonial and Divorce | Kerala HC (2018)

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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.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 12TH DAY OF FEBRUARY 2018 / 23RD MAGHA, 1939 Mat.Appeal.No. 617 of 2009

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OP 55/2008 of FAMILY COURT, THIRUVALLA DATED 30-04-2009

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APPELLANT/DEFENDANT

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P.G.RAPHEAL (WRONGLY STATED IN THE JUDGMENT AS P.G.RAFEL), PATTAPARAMBIL VEEDU, ERAMALLOOR P.O., JAMALUKANDEKKAD, PIN.688 537.

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BY ADV.SRI.K.SUBASH CHANDRA BOSE

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RESPONDENT/PLAINTIFF:

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SALYKUTTY JOSEPH, W/O.RAPHEAL, MUNDANKUNNEL VEEDU,, KUMARAMPEROOR VADAKKEKKARA MURI, SEETHATHODU VILLAGE, CHITTUR, PATHANAMTHITTA DISTRICT.

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BY ADV. SMT.A.SREEKALA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-022018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.HARILAL & A.M.BABU, JJ.

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Mat.Appeal.No.617 of 2009

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- - - - Dated : 12^th February, 2018

JUDGMENT

A.M.Babu, J

1.Appellant is the ex-husband of the respondent. The lady filed two original petitions before the family court. One was for divorce. The other one was for return of money and gold ornaments. The relief of divorce was decreed by the family court. The appellant did not appeal against the said decree. The family court allowed the claim for gold ornaments. But it disallowed the claim for money. The respondent did not appeal against the denial of her claim for money. The appellant is in appeal against the decree directing him to pay the value of gold ornaments.

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2.The case of the respondent goes as follows : She was married to the appellant. The marriage was solemnized on 28.4.1994. They lived as man and

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wife in the house of the appellant. A baby girl was born in the wedlock. An amount of Rs 1,00,000/- was paid to the appellant in connection with the marriage. The respondent as the bride wore 25 sovereigns of gold ornaments. Out of the same, the appellant appropriated 22.5 sovereigns of gold ornaments on different occasions for his needs. He appropriated the amount of Rs 1,00,000/- also for himself.

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3.The appellant filed written-statement. He admitted the marriage. He admitted the birth of the child. He raised the following contentions : The entire claim of the respondent is barred by the law of limitation. The allegation that the appellant was paid Rs 1,00,000/- in connection with the marriage and the further contention that 22.5 sovereigns of gold ornaments were appropriated by the appellant are incorrect. Whatever money and ornaments the respondent had in connection with her marriage had been returned to her by the appellant. Therefore the respondent

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is not entitled to raise any further claim.

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4.The appellant later filed an additional writtenstatement in which he raised the following contentions : The parents of the respondent were not capable of raising Rs 1,00,000/- in 1994. The respondent did not have 25 sovereigns of gold ornaments with her. Only an amount of Rs 15,000/was entrusted with the respondent in connection with the marriage. She deserted him in December 1994. The issues were mediated. A settlement was arrived at. As per it 20.50 grams of gold ornaments which were with the appellant were returned to the respondent.

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5.Both sides adduced evidence before the family court. PWs 1 and 2 were examined and Exts A1 to A5 were marked on the side of the respondent. On the other side, CPWs 1 to 3 were examined and Exts B1 and B2 were marked.

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6.The family court did not accept the case of the

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respondent that there was a payment of Rs 1,00,000/- and that it was appropriated. A decree was granted for Rs 1,95,000/- in favour of the respondent and against the appellant, the amount being the value of 22½ sovereigns of gold ornaments.

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7.We heard Sri.K.Subhash Chandra Bose and Smt.A.Sreekala, the learned counsel for the appellant and the respondent respectively.

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8.The appellant contended for limitation to defeat the claim of the respondent. If the appellant had taken the gold ornaments of the respondent, the same shall be in the hands of the former in trust for the latter as provided in Sec.6 of the Dowry Prohibition Act. In view of the creation of a statutory trust, Sec.10 of the Limitation Act would apply. Therefore the claim of the respondent is not barred by any length of time.

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9.The appellant filed two written-statements. In

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the first one he contended for discharge. In the second one he denied the contention of the respondent that she brought Rs 1,00,000/- and 25 sovereigns of gold ornaments. The family court should not have entertained the additional written-statement filed by the appellant. The additional written-statement should have been eschewed. In this connection we may refer to order VIII rule 9 and order VI rule 7 of CPC and also Sec.10 of the Family Courts Act and rule 50 of the Family Courts (Kerala) Rules.

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10.Sec.10 of the Family Courts Act provides, inter alia, that subject to the other provisions of the said Act and the rules, the provisions of the Code of Civil Procedure shall apply to the suits and proceedings, other than the proceedings under Chapter IX of the Code of Civil Procedure, before a family court and it shall be deemed to be a civil court and shall have all the powers of such court. Rule 50 of the Family Courts (Kerala) Rules states that the provisions of the Code of

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Civil Procedure or of the Code of Criminal Procedure, as the case may be, shall apply to the proceedings before the family court. Thus, the Code of Civil Procedure applies to the civil proceedings before family courts.

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11.Order VIII rule 9 of CPC deals with subsequent pleadings. It provides, inter alia, that no pleading subsequent to the written-statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the court. Order VIII rule 9 is strict that subsequent pleading is possible only with the leave of the court. The appellant did not take the leave of the court to file an additional written-statement. Therefore the additional written-statement filed by the appellant cannot at all be taken into account for deciding the case. No contention in it should have been referred to by the family court while discussing the issues before it.

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12.Order VIII rule 9 of CPC should be read along with Order VI rule 7 of CPC. The said provision is all about departure from pleadings. It provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. The contentions in the additional writtenstatement of the appellant were a clear case of departure from his original written-statement. Such pleas were possible only by way of amendment of the existing written-statement. Such pleas cannot be taken by filing a subsequent pleading under order VIII rule 9 of CPC. The departure, being not contained in the original writtenstatement by amendment, shall be liable to be eschewed. We do so.

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13.For reasons given by us, we discard the additional written-statement filed by the appellant. He could take only the contentions in the original written-statement for trial. The

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contention therein was a plea of discharge. It is true that the appellant had contended in his original written-statement that the allegation that he had taken 22.5 sovereigns of gold ornaments of the respondent was untrue. It was denied that 25 sovereigns of gold ornaments were given to the respondent by her father at the time of the marriage. The appellant who raised the aforenoted contentions failed to say what approximately was the weight of the gold ornaments the respondent had. In view of the said failure, his denial can be understood only as an evasive denial within the meaning of order VIII rule 4 of CPC. It states as Under :

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“Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances”.

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The evasive denial of the appellant on a crucial aspect is also fatal to his case.

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14.The appellant contended that what all ornaments the respondent had were returned to her by him. It was undertaken in the written-statement to produce proof of such return of ornaments. The said plea of the appellant was essentially a plea of discharge. It was for him to prove the plea of discharge.

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15.In order to prove the plea of discharge what was available with the appellant was Ext B2. The same is an agreement purported to have been executed by and between the appellant and the respondent. PW1 who is the respondent denied the signatures in Ext B2 to be hers. As correctly stated by the family court, the written-statement filed by the appellant did not whisper about the existence of Ext B2. When the appellant pleads discharge on the strength of a document, it was compulsory for him to state in his pleadings the effect of the

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document. That is what order VI rule 9 of CPC insists on. The said rule states that the effect of document should be stated in the pleadings. It provides that wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material. In view of order VI rule 9 of CPC, it was not necessary for the appellant to set out the precise words in Ext B2, but he should have stated its effect in his pleading. He did not do that. Therefore Ext B2 cannot be taken into account. The same shall also be eschewed.

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16.The learned counsel for the appellant vehemently argues that Ext B1 contains an admission of the respondent. Ext B1 is stated to be a letter addressed to the appellant by the respondent. The letter recites that the husband once told the wife that the former had taken the latter to the

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house of the former only for not returning the amount of Rs 15,000/-, a gold chain weighing 20.5 grams and three bangles of five grams each taken by him from her. We do not see any admission in the said statement in Ext B1. The recital therein is not an admission of the lady that what were taken from her were Rs 15,000/-, a chain weighing 20.5 grams and three bangles of five grams each. What she stated in Ext B1 was only that she was told so by the appellant. We are unable to accept the said recital as an admission. Should an admission be relevant, it shall be unambiguous. The so called admission in Ext B1 is certainly not unambiguous. We are unable to accept the submission of the learned counsel.

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17.We shall conclude. The contentions of the appellant in his original written-statement alone can be considered. His additional writtenstatement is liable to be eschewed for reasons stated by us. The contention in the original written-statement was essentially a plea of

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discharge. The appellant failed to prove the plea. Therefore the respondent was entitled to a decree as prayed for. However, the family court decreed her claim partly only. There is little scope for interference with the decree granted by the trial court. The appeal fails. It deserves only a dismissal. However, in the facts and circumstances of the case, we do not tax the appellant with costs.

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18.Dismissed. No costs.

Sd/-

K.HARILAL Judge

Sd/-

A.M.BABU

Judge

Mrcs/14.2

/True copy/

Sd/- P.S.To Judge

P.G.Rapheal v. Sallykutty Joseph

Case brief

What is this about?

What did the court decide?

P.G.Rapheal v. Sallykutty Joseph

Case brief

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