Dismissed

Rahmath v. Iqbal

Kerala HC28 Sept 2021OP (FC)/472/2021

Case brief

AI extract

What is this about?

The High Court, in judicial review, dismissed an application challenging the Family Court's refusal to amend an inquiry petition to implead a third party regarding sold property. The Court held the amendment was unrelated to the main cause of action. It dismissed the review but expressly allowed the petitioner to seek attachment of the property in the Family Court.

What did the court decide?

Liberty granted to move the Family Court seeking attachment of the property if the original petition is still open.

Rahmath Vs Iqbal — Property and Title | 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 TUESDAY, THE 28^TH DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943 OP (FC) NO. 472 OF 2021

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AGAINST THE ORDER DATED 07.09.2021 IN IA 1/2021 AND IA 2/2021 IN OP 281/2014 OF FAMILY COURT, TIRUR

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PETITIONER/PETITIONER:

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RAHMATH

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AGED 32 YEARS D/O.BAVA (LATE), MOYIKKAL HOUSE, TANUR BLOCK JUNCTION, TIRUR TALUK, MALAPPURAM DISTRICT.

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BY ADVS. JAMSHEED HAFIZ K.K.NESNA

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RESPONDENTS/RESPONDENTS:

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1 IQBAL

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AGED 38 YEARS S/O.IMBICHIBAVA, PATHUVINTE PURAKKAL HOUSE, TANUR, OTTUMPURAM, TANUR POST, TIRUR TALUK, MALAPPURAM DISTRICT-676 302

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2 AYISHA MOL AGED 64 YEARS W/O.IMBICHIBAVA, PATHUVINTE PURAKKAL HOUSE, TANUR, OTTUMPURAM, TANUR POST, TIRUR TALUK, MALAPPURAM DISTRICT-676 302

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O.P.(FC).No.472/2021

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-:2:-

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3 KUNHIMOL AGED 48 YEARS W/O.HANEEFA, PATHUVINTE PURAKKAL HOUSE, TANUR, OTTUMPURAM, TANUR POST, TIRUR TALUK, MALAPPURAM DISTRICT-676 302

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4 FATHIMA AGED 33 YEARS D/O.AYISHA MOL, PATHUVINTE PURAKKAL HOUSE, TANUR, OTTUMPURAM, TANUR POST, TIRUR TALUK, MALAPPURAM DISTRICT-676 302

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P.(FC).No.472/2021

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J U D G M E N T

Dated this the 28th day of September, 2021

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A.Muhamed Mustaque,J.

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The petitioner herein is the petitioner in O.P.No.281/2014 on the file of

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the Family Court, Tirur. The said original petition was filed for realisation of the

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of the amount being value of the gold ornaments. The petitioner filed an

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application for conditional attachment. The respondents entered appearance and submitted that property was sold. Thereafter, it appears that application has been

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closed as respondents contended that they sold the property (the version of the

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learned counsel).

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The trial of the case commenced. The petitioner adduced evidence.

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Thereafter respondents mounted the box. According to the petitioner, while in

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cross-examination, first respondent deposed that the title of the property vests

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with him and there was no transfer of the property to third party.

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O.P.(FC).No.472/2021

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Taking cue from the deposition, the petitioner filed an application

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for amendment and to implead third party to whom the property was allegedly

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sold. The Family Court considered both applications and dismissed the same. It is

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noted by the Family Court that amendment would be required only to decide real

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questions in controversy between the parties. Further, it is noted that, in the

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counter affidavit filed by the respondents in the year 2015 itself, there was

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mention about transfer of the property and delay would frustrate the process.

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The cause of action and the issue are related to the claim for money

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being the value of gold ornaments alleged to have been appropriated by the

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respondents. The main petition itself is not related to any interest or title in respect of the property. The petitioner's real concern is about the enforcement of

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her claim. As rightly noted by the Family Court, the present claim cannot be

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related to the original cause of action and the matter in issue and therefore such amendment cannot be allowed.

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We do not find any reason to interfere with the impugned order

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inasmuch as the amendment of this nature cannot be allowed incorporating a

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O.P.(FC).No.472/2021

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relief which is totally unconnected with the cause of action in the main petition.

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We find justification in the order of the Family Court in dismissing such

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application. However, nothing prevents the petitioner to reopen the application

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filed for attachment or file fresh application, if the original petition has been

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closed, to proceed against the property. It is for the Family Court to consider such

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relief in such matters in the light of the alleged stand of the respondents that the

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property was not sold.

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With liberty as above to move the Family Court seeking attachment

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of the property in question, we dismiss this original petition in limine.

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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.472/2021

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APPENDIX OF OP (FC) 472/2021

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE COPY OF AMENDED O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED 30.4.2014
Exhibit P2	A TRUE COPY OF THE IA.1363/2013 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED 4.8.2015
Exhibit P3	A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN IA. 1363/2013 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED 12.10.2015
Exhibit P4	A TRUE COPY OF THE DEPOSITION OF THE 1ST RESPONDENT DATED 4.3.2021
Exhibit P5	A TRUE COPY O THE IA. 01/2021 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED 24.4.2021
Exhibit P6	A TRUE COPY O THE IA. 02/2021 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED 24.4.2021
Exhibit P7	A TRUE COPY O THE OBJECTION FILED BY THE RESPONDENTS IN IA. 01/2021 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED NIL
Exhibit P8	A TRUE COPY O THE OBJECTION FILED BY THE RESPONDENTS IN IA. 02/2021 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED NIL

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O.P.(FC).No.472/2021

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Exhibit P9 A TRUE COPY OF THE COMMON ORDER IN IA.1/2021 AND IA.2/2021 IN O.P.281/2014 BEFORE THE FAMILY COURT, TIRUR DATED 7.9.2021

Rahmath v. Iqbal

Case brief

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Rahmath v. Iqbal

Case brief

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