Dismissed

Jose Lopez v. Stbert Kumar

Kerala HC24 Mar 2021OP (FC)/11/2020

Case brief

AI extract

What is this about?

This judgment dismisses a petition challenging the Family Court's refusal to allow amendments to a written statement in a maintenance suit filed by a deceased wife's parents. The court held that the husband could not claim lack of diligence regarding facts known at the time of drafting the original statement, including details about the nature of jewelry involved in the suit.

What did the court decide?

The Original Petition challenging the Family Court's order dismissing the amendment application was dismissed. The original order of the Family Court (Ext.P4) is affirmed.

Jose Lopez Vs Stbert Kumar — Maintenance and Alimony | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH

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WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

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OP (FC).No.11 OF 2020

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AGAINST THE ORDER IN IA NO.2453/2018 IN OP 127/2013 OF FAMILY COURT,THIRUVANANTHAPURAM

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PETITIONER/PETITIONER:

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JOSE LOPEZ

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AGED 33 YEARS

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S/O PLASIT LOPEZ,MINI HOUSE,OOTTICKAL PARAMBU,NEAR VIZINJAM OLD BRIDGE, KOTTAPPURAM.P.O,VIZINJAM,THIRUVANANTHAPURAM.

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BY ADV. SMT.M.HEMALATHA

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RESPONDENTS/COUNTER-PETITIONERS:

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1 STBERT KUMAR S/O RAJENDRAN,ST.JUDE HOME,KOTTAPPURAM.P.O,VIZINJAM, THIRUVANANTHAPURAM-695521.

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2 STEFEENA JASEENTH, D/O STBERT KUMAR,ST.JUDE HOME, KOTTAPPURAM.P.O, VIZINJAM,THIRUVANANTHAPURAM695521.

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3 CHRISTUHUDAS, S/O STBERT KUMAR,ST.JUDE HOME, KOTTAPPURAM.P.O, VIZINJAM,THIRUVANANTHAPURAM695521.

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4 FERIYA STBERT, D/O STBERT KUMAR,ST.JUDE HOME, KOTTAPPURAM.P.O,VIZINJAM, THIRUVANANTHAPURAM-695521.

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R1 BY ADV. SMT.K.DEEPA (PAYYANUR)

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19-032021, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:

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OP(FC) No.11/2020

J U D G M E N T

Dated this the 24^th day of March, 2021

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Dr.Kauser Edappagath, J.

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This Original petition has been filed challenging the dismissal of the application for amendment of the written statement filed by the husband.

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O.P.No.127/2013 of the Family Court,

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Thiruvananthapuram has been filed by the parents of the deceased wife against the husband for recovery of gold ornaments and money. The Original petition is of the year 2013. The husband filed written statement as early as on January, 2014. After the trial was commenced, the husband filed IA No.2453/2018 to amend the written statement. The amendment sought for was mainly to retract the admission made by the husband that the parents of the wife had given 50 sovereigns of gold ornaments and `2 lakh as pocket money to the wife at the time of marriage. Few other amendments were also sought to be incorporated. The said application was dismissed by the court

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OP(FC) No.11/2020

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below as per Ext.P4 order. The said order is under challenge in this Original Petition.

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Heard both sides.

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The learned counsel for the petitioner submitted that the Court should be liberal in allowing the petition for amendment especially in a case of amendment of written statement and inasmuch as the pleadings sought to be incorporated by way of amendment were brought to notice only during the trial, the delay in preferring amendment application ought to have been condoned and amendment ought to have been allowed by the Court below. The learned counsel for the respondents, on the other hand, submitted that the facts sought to be introduced by way of amendment were within the knowledge of the petitioner and since the petition was filed after the commencement of the trial, the petition for amendment is hit by the proviso to Order VI Rule 17 of the C.P.C.

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The wife committed suicide. The petitioners before the Court below are the parents of the wife. There was a criminal case against the husband, his mother and siblings as SC No.1419/2015 before the Additional Sessions Judge-V,

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OP(FC) No.11/2020

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Thiruvananthapuram regarding the suicide committed by the wife. According to the husband, during the course of evidence in the said case, it was revealed that some of the gold ornaments belonged to the wife were imitation gold ornaments. Hence, he wanted to withdraw his admission in the written statement that the parents of the wife gave her pure gold ornaments at the time of marriage. Some more amendments were also canvassed by the husband. All the amendments were necessitated, according to the husband, on account of certain facts revealed in the evidence in SC No.1419/2015. The Court below on analysis of the pleadings and evidence brought out, came to the conclusion that the facts sought to be introduced by the husband were within his knowledge even at the time of filing the written statement. The amendment application was filed after giving oral evidence by both sides. At the time of filing written statement, the wife was not alive. The husband was well aware of the properties which belonged to the deceased wife. Hence, those factors could have been pleaded in the original written statement itself.

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Even according to the husband, the amendment was necessitated owing to certain facts brought out in evidence.

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OP(FC) No.11/2020

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Thus, even without amendment, he can agitate all those matters during trial. As per the proviso to Order VI Rule 17 of CPC, no new amendment of pleadings shall be allowed to be made after the commencement of trial, unless the party seeking for amendment convinces the Court that in spite of due diligence, he could not have raised all those matters sought to be incorporated by way of amendment before starting trial. As rightly held by the Court below, the petitioner could not show that he was prevented from making those contentions at the time of filing the written statement. Yet another pleading sought to be incorporated by way of amendment is regarding the maintainability of the Original Petition. According to the husband, after the death of his wife, the petitioners, who were the parents of the wife, lost the status of “parties to the marriage” to institute the original petition. The cause of action agitated in the suit is connected with the matrimonial relationship between the appellant and the respondent. Hence, it will fall within Explanation (d) to S.7(1) of the Family Courts Act, 1984, because it is a suit filed, seeking an order in the circumstances arising out of the marital relationship. It is true that liberal principles should guide the exercise of

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OP(FC) No.11/2020

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discretion in allowing the amendment. But it is equally settled that care should be taken to see that injustice and prejudice are not inflicted upon opposite party under the pretence of amendment.

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For the reasons stated above, we find no reason to interfere with Ext.P4 order in the exercise of our jurisdiction under Art.227 of the Constitution of India. Accordingly, the Original petition is dismissed.

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Sd/-

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A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

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