Allowed

Synaba v. Abdul Salam

Kerala HC22 Sept 2021OP (FC)/450/2021

Case brief

AI extract

What is this about?

The High Court set aside the Family Court order denying the petitioner permission to reopen evidence and examine other petitioners in OP No.41/2016. It permitted the examination on the next posting date while reserving the power to assess prejudice to the respondent later.

What did the court decide?

Impugned order set aside; petitioner permitted to examine petitioners 2 and 3 on the next posting date.

Synaba Vs Abdul Salam — Civil Procedure and Limitation | 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 DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 22^ND DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 OP (FC) NO. 450 OF 2021

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AGAINST THE ORDER DATED 25.8.2021 IN IA 1/202 IN OP 41/2016 OF FAMILY COURT, TIRUR

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PETITIONER/PETITIONER:

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SYNABA AGED 52 YEARS D/O. VELIPPARAMBIL SAYITHUMUHAMMED, EZHAVATHIRUTHI AMSOM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT - 679 577.

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BY ADVS. JAMSHEED HAFIZ K.K.NESNA

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RESPONDENT/RESONDENT:

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ABDUL SALAM AGED 61 YEARS S/O. KOCHUMUHAMMED, VELIPPARAMBIL HOUSE, CHAMRAVATTOM JUNCTION, EZHAVATHIRUTHI AMSOM DESOM, EZHAVATHIRUTHI P. O., PONNANI TALUK, MALAPPURAM DISTRICT - 679 577.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON

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22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(FC).No.450/2021

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J U D G M E N T

Dated this the 22nd day of September, 2021

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A.Muhamed Mustaque,J.

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The petitioner is the first petitioner in OP No.41/2016 on the file of

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the Family Court, Tirur. The petitioners 2 and 3 in O.P.No.41/2016 are the

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children of the petitioner herein.

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The petitioner herein was examined as PW1. Thereafter,

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respondent was examined as RW1.

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The petitioner filed a petition to reopen the evidence and to

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examine the petitioners 2 and 3 in O.P.No.41/2016. The said application

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has been dismissed and challenging the same, the petitioner has approached this court.

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Heard the learned counsel for the petitioner. Though notice

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O.P.(FC).No.450/2021

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-:3:-

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has been served to the respondent through the counsel appearing in the

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Family Court, none appears for him.

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The Family Court found that if an opportunity is given to the

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petitioner to reopen the evidence, that would amount to filling the lacuna of the evidence of the petitioner, which is not permissible. It was further noted that the petitioner had ample opportunity to adduce evidence.

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We are not able to agree with the reasoning given by the

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Family Court. Merely for the reason that both the petitioner and the respondent were examined, that would not deter the petitioner from

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reopening the evidence by examining other petitioners. All that is to be considered in such situation is whether any prejudice would be caused to

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the respondent if such permission to adduce evidence is granted subsequent to the closure of the evidence of the respondent. That is a

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matter for appreciation at a later stage.

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O.P.(FC).No.450/2021

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-:4:-

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In the interest of justice, we are of the view that the impugned

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order has to be set aside and accordingly, we set aside the impugned order.

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The petitioner is permitted to examine petitioners 2 and 3 on the next

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posting date itself. We make it clear that the examination of petitioners 2 and 3 will not prevent the court from examining whether any prejudice

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has been caused to the respondent on account of the examination of petitioners 2 and 3 while disposing the matter.

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The OP(FC) is allowed. No order as to costs.

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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

JUDGE

kp True copy

P.A. To Judge

O.P.(FC).No.450/2021

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APPENDIX OF OP (FC) 450/2021

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE FAMILY	COPY OF THE OP.41/2016 BEFORE THE COURT, TIRUR DATED 19.01.2016.
Exhibit P2	A TRUE OP.41/ TIRUR	COPY OF THE IA 1/2021 IN 2016 BEFORE THE FAMILY COURT, DATED 03.08.2021.
Exhibit P3	A TRUE 1/2021 COURT,	COPY OF THE OBJECTION IN IA IN OP.41/2016 BEFORE THE FAMILY TIRUR DATED NIL.
Exhibit P4	A TRUE OP.41/ TIRUR	COPY OF THE ORDER IN IA 1/2021 IN 2016 PASSED BY THE FAMILY COURT, DATED 25.08.2021.
Exhibit P5	A TRUE IN OP. TIRUR.	COPY OF THE E-COURTS PROCEEDING 41/2016 OF THE FAMILY COURT,

Synaba v. Abdul Salam

Case brief

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Synaba v. Abdul Salam

Case brief

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