Allowed

Adv. James Antony v. Sheela

Kerala HC7 Sept 2021OP (FC)/494/2020

Case brief

AI extract

What is this about?

The High Court set aside the Family Court's order drawing adverse inference for non-compliance with interrogatories. Holding that the court below failed to apply Order XLI Rule 21 of CPC correctly, the High Court ordered a final chance to answer interrogatories before considering dismissal for want of prosecution, exercising jurisdiction under Article 227.

What did the court decide?

Set aside the order in IA No.2/2020 dated 16/7/2020; Direct the Family Court to give the wife and daughter an opportunity to answer interrogatories within one month; Direct the Family Court to pass or

Adv. James Antony Vs Sheela — Matrimonial and Divorce | 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 7^TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943

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OP (FC) NO. 494 OF 2020

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AGAINST THE ORDER IN IA NO.5/2020 DATED 6/11/2020 IN OP 973/2012 OF FAMILY COURT, IRINJALAKUDA, THRISSUR

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PETITIONER/FIRST RESPONDENT:

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ADV. JAMES ANTONY AGED 64 YEARS S/O. MANIYAMKOTTU ANTONY, KUMBALAM, DESOM, ERNAKULAM DISTRICT 682 506.

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BY ADV. JAMES ANTONY(Party-In-Person)

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RESPONDENTS/PETITIONERS & 2ND AND 3RD RESPONDENTS:

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1 SHEELA AGED 59 YEARS D/O. PULLELY POULOSE, MURINGOOR DESOM, MURINGOOR VADAKKUMURY VILLAGE, MUKUNDAPURAM TALUK, 680 316, NOW RESIDING AT SHEELA JAMES, FLAT NO. C 302, GOKUL HORIZON, THAKUR VILLAGE, KANDIVALI EAST, MUMBAI, 400 101. MAHARASHTRA STATE.

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2 ROSHAN, AGED 32 YEARS D/O. SHEELA AND JAMES, RESIDING AT C/O. SHEELA JAMES, FLAT NO. C. 302, GOKUL HORIZON, THAKUR VILLAGE, KANDIVALI EAST, MUMBAI, 400 101. MAHARASHTRA STATE.

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OP(FC) Nos.494/2020 & 251/2021

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3 JAYAN, AGED 63 YEARS S/O. CHAMMANIKODATHU PAUL ALUVA DESOM, ALUVA WEST VILLAGE, ALUVA TALUK 683 101.

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4 MARTIN, AGED 51 YEARS S/O. PALAKKAL THOMMI, ERUMATHALA P.O. ERUMATHALA KARA, ALUVA EAST, VILLAGE, 683 105.

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BY ADV SMT.K.DEEPA (PAYYANUR) ADV.SRI.K.P.SREEKUMAR, AMICUS CURIAE

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.09.2021, ALONG WITH OP (FC).251/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(FC) Nos.494/2020 & 251/2021

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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

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TUESDAY, THE 7^TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943

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OP (FC) NO. 251 OF 2021

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AGAINST THE ORDER IN IA NOS.2/2020, 11/2020 AND 12/2020 IN OP 973/2012 OF FAMILY COURT, IRINJALAKUDA, THRISSUR

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PETITIONER/PETITIONER:

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SHEELA

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AGED 59 YEARS D/O.PULLERI POULOSE, MURINGOOR DESOM, MURINGOOR VADAKKUMMRI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR (DIST). PIN 680 316

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BY ADV K.DEEPA (PAYYANUR)

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RESPONDENTS/RESPONDENTS:

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1 ADV.JAMES ANTONY AGED 64 YEARS S/O.MANIYAMKOTTU ANTONY, KUMBALAM DESOM, ERNAKULAM (DIST). PIN 682 506

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2 JAYAN AGED 63 YEARS S/O.CHAMMANIKODATHU PAUL, ALUVA DESOM, ALUVA WEST VILLAGE, ALUVA TALUK, PIN 683 101, ERNAKULAM (DIST).

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OP(FC) Nos.494/2020 & 251/2021

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3 MARTIN AGED 51 YEARS S/O.PALAKKAL THOMMAN, ERUMATHALA (P.O.), ERUMATHALA KARA, ALUVA EAST VILLAGE, ERNAKULAM (DIST). PIN 683 105

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4 ROSHAN AGED 32 YEARS D/O.SHEELA, MURINGOOR DESOM, MURINGOOR VADAKKUMMRI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR (DIST) PIN 680 316

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.09.2021, ALONG WITH OP (FC).494/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(FC) Nos.494/2020 & 251/2021

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J U D G M E N T

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Dated this the 7^th day of September, 2021

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Kauser Edappagath, J.

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These original petitions have been filed challenging the order in IA No.2/2020 dated 16/7/2020, orders dated 6/11/2020 in IA No.5/2020 in IA No.2/2020, IA No.11/2020 in IA No.2/2020 and IA No.12/2020 in IA No.2/2020 in OP No.973/2012 on the file of the Family Court, Irinjalakuda (for short, 'the court below').

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The wife and daughter filed original petition against the husband and his two brother-in-laws as OP No.973/2012 before the court below. The prayer in the original petition was to declare a sale deed executed by her husband in favour of his brother-in-laws, who were arrayed as respondent Nos.2 and 3, as a sham document and also claiming an amount of `15,00,000/from the husband towards the educational and marriage expenditure of the daughter, who was arrayed as the 2^nd petitioner. During the pendency of the proceedings, the husband filed IA No.2/2020 before the court below seeking leave of the court to administer interrogatories separately to the wife and

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OP(FC) Nos.494/2020 & 251/2021

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daughter. The questions were related to the employment and salaries of the wife and daughter. The said petition was allowed by the court below as per order dated 18/3/2020 and the wife and daughter were directed to answer the interrogatories within two weeks. But the wife and daughter failed to answer the interrogatories as directed. Thereafter, the husband filed IA No.5/2020 under Order XI Rule 21 of Civil Procedure Code (for short, 'C.P.C') to dismiss the OP itself for want of prosecution. The court below as per order dated 16/7/2020 closed IA No.2/2020 observing that adverse inference will be drawn against the wife and daughter since they failed to answer the interrogatories. Thereafter, the wife filed petition to review the order with a petition to condone the delay as IA No.12/2020 and IA No.11/2020. Both those petitions were also dismissed. The petition filed by the husband as IA No.5/2020 to dismiss the original petition itself for want of prosecution was also dismissed as per order dated 6/11/2020. In OP(FC) No. 494/2020 filed by the husband, the order in IA No.5/2020 dated 6/11/2020 is under challenge. In OP(FC) No.251/2021 filed by the wife, orders in IA Nos.2/2020 dated 16/7/2020, IA No.11/2020 dated 6/11/2020

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OP(FC) Nos.494/2020 & 251/2021

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and IA No.12/2020 dated 6/11/2020 are under challenge.

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Heard both sides and perused the records.

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The order passed by the court below directing the wife

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and daughter to answer the interrogatories filed by the husband was not complied with. Order XI Rule 21 of CPC deals with non compliance with the order to answer interrogatories. It provides that where any party fails to comply with any order to answer interrogatories, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out and to be placed in the same position as if he had not defended. Instead of passing an order in tune with the said provision, the court below closed the petition holding that adverse inference will be drawn. The said approach of the court below is patently wrong.

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The learned counsel for the wife and daughter submitted that they could not answer the interrogatories in time since they could not meet their counsel and give necessary instruction to answer the interrogatories due to lock down restrictions and there was no wilful laches. The counsel submitted that they are prepared to answer the interrogatories and comply

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OP(FC) Nos.494/2020 & 251/2021

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with the direction of the court. Considering the entire facts and circumstances of the case, we are of the view that a further opportunity has to be given to the wife and daughter finally to answer the interrogatories.

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We, in these circumstances, set aside the order in IA No.2/2020 dated 16/7/2020. The court below shall give an opportunity to the wife and daughter to answer the interrogatories within one month from the date of the receipt of the copy of this judgment. If the wife and daughter fail to answer the interrogatories within the said time, the court below shall pass orders in tune with the provisions of Order XI Rule 21 of C.P.C. The husband shall be given an opportunity to file an application for discovery of inspection of documents, if any, after the interrogatories are answered.

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The original petitions are disposed of as above. No costs.

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Sd/- A.MUHAMED MUSTAQUE

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JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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OP(FC) Nos.494/2020 & 251/2021

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APPENDIX OF OP (FC) 251/2021

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE JUDGMENT DATED 16.1.2020 IN MAT. APPEAL NO.659/2014 OF THIS HON'BLE COURT.
EXHIBIT P2	TRUE COPY OF THE PETITION FILED BY THE 1ST
	RESPONDENT, SEEKING LEAVE OF THE COURT TO ADMINISTER INTERROGATORIES, AS
	I.A.NO.2/2020 IN OP.NO.973/2012 OF THE FAMILY COURT.
EXHIBIT P3	TRUE COPY OF THE ORDER DATED 18.3.2020, ISSUING DIRECTION TO THE PETITIONERS IN
	I.A.NO.2/2020 OF THE FAMILY COURT, IRINJALAKUDA.
EXHIBIT P4	TRUE COPY OF THE PETITION OF I.A.NO.05/2020 FILED BY THE 1ST RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE PETITION OF I.A.NO.08/2020 FILED BY THE 1ST RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE PETITION OF I.A.NO.09/2020 FILED BY THE 1ST RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE ORDER DATED 16.7.2020 IN I.A.NO.2/2020 IN OP NO.973/2012.
EXHIBIT P8	TRUE COPY OF THE PETITION FILED BY THE PETITIONER TO REVIEW EXT. P7 ORDER BEFORE THE FAMILY COURT.
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 6.11.2020 IN I.A.NO.11/2020 OF THE FAMILY COURT.
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 6.11.2020 IN I.A.NO.12/2020 OF THE FAMILY COURT.

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OP(FC) Nos.494/2020 & 251/2021

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APPENDIX OF OP (FC) 494/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE STATE GOVERNMENT TREASURY RECEIPT DATED 21.11.2008 FOR RS. 402300/-.
EXHIBIT P2	TRUE COPY OF THE BASIC TAX RECEIPT PAID BY THE 3RD AND 4TH RESPONDENTS FOR THE FINANCIAL YEAR 2009 -10.
EXHIBIT P3	TRUE COPY OF THE CERTIFIED COPY OF ORDER DATED 27.05.2010 OF THE THRISSUR FAMILY COURT, DISMISSING O.P. 971/2002 AS NOT PASSED.
EXHIBIT P4	TRUE COPY OF THE O.P. 973/2012 OLD NO. 928/2010 FILED BY THE 1ST AND 2ND RESPONDENT HEREIN.
EXHIBIT P4 A	TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/ HEREIN IN O.P. 973/2012 (OLD NO. 928/2010.
EXHIBIT P5	CERTIFIED COPY OF THE ORDER DATED
	01.06.2010 OF THE THRISSUR FAMILY COURT
	DIS MISSION I.A. 3688/2010 IN O.P. 928/2010 (NEW NO. 973/2012).
EXHIBIT P6	TRUE COPY OF FACE BOOK PROFILE OF THE 2ND RESPONDENT DAUGHTER SHOWING HER EMPLOYMENT DETAILS AND RESIDENCE STATUS.
EXHIBIT P7	TRUE COPY OF AFFIDAVIT FIELD BY THE 1ST RESPONDENT THROUGH HER COUNSEL BEFORE THE FAMILY COURT ADMITTING HER JOB AS LECTURER IN A COLLEGE IN MUMBAI.
EXHIBIT P8	CERTIFIED COPY OF THE INTERROGATORIES ADMINISTERED AS I.A. NO. 02/2020.

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OP(FC) Nos.494/2020 & 251/2021

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EXHIBIT P9	CERTIFIED COPY OF THE ORDER DATED
	18.03.2020 OF IRINJALAKUDA F.C. PASSED IN
	I.A. NO. 02/2020 TO ANSWER THE INTERROGATORIES.
EXHIBIT P10	CERTIFIED COPY OF THE I.A. NO. 05/2020 DATED 08.06.2020.
EXHIBIT P11	TRUE COPY OF THE I.A. NO. 08/2020.
EXHIBIT P12	TRUE COPY OF THE I.A. NO. 09/2020 DATED 16.07.2020.
EXHIBIT P13	CERTIFIED COPY OF THE ORDER DATED 16.07.2020 IN I.A. NO. 02/2020.
EXHIBIT P14	TRUE COPY OF I.A. NO. 14/2020 DATED 23.10.2020.
EXHIBIT P15	TRUE COPY OF I.A. NO. 15/2020DATED 23.10.2020.
EXHIBIT P16	CERTIFIED COPY OF THE ORDER DIS MISSING I.A. NO. 05/2020 DATED 06/11/2020.
EXHIBIT P17	CERTIFIED COPY OF THE COMMON ORDER OF THE FAMILY COURT DATED 06.11.2020 DISMISSING I.A. 08/2020 AND I.A. 09/2020.
EXHIBIT P18	CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 14/2020.
EXHIBIT P19	CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 15/2020.
EXHIBIT P20	CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020
	DISMISSING I.A. NO. 11/2020. PETITION TO CONDONE DELAY.

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OP(FC) Nos.494/2020 & 251/2021

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EXHIBIT P21 CERTIFIED COPY OF THE ORDER OF THE IRINJALAKUDA FAMILY COURT DATED 06.11.2020 DISMISSING I.A. NO. 12/2020.(REVIEW PETITION) EXHIBIT P22 TRUE COPY OF ORDER OF THIS HONBLE COURT DATED 25.11.2020 DISPOSING MAT APPEAL FILING NO. 45280/2020 AS NOT MAINTAINABLE, BUT GIVING LIBERTY TO THE PETITIONER TO FILE OP FC UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA.

Adv. James Antony v. Sheela

Case brief

What is this about?

What did the court decide?

Adv. James Antony v. Sheela

Case brief

What is this about?

What did the court decide?

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