Dismissed

Sindo C.K. v. Athira Joy

Kerala HC21 Feb 2023OP (FC)/199/2020

Case brief

AI extract

What is this about?

In an Original Petition under Article 226, the High Court of Kerala held that the bar under Order IX Rule 9 CPC precludes a bar on maitainablity only if the previous suit was dismissed under Rule 8 of Order IX. The court found the earlier judgment did not fall under Rule 8, making the subsequent petition maintainable. The writ petition was dismissed.

What did the court decide?

The Original Petition filed under Article 226 of the Constitution of India was dismissed.

Sindo C.K. Vs Athira Joy — Civil Procedure and Limitation | Kerala HC (2023)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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TUESDAY, THE 21^ST DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944

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O.P.(FC) NO. 199 OF 2020

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AGAINST THE ORDER DATED 09.03.2020 IN I.A.NO.1328 OF 2019 IN O.P.NO.588 OF 2019 ON THE FILES OF THE FAMILY COURT,

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MUVATTUPUZHA

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PETITIONERS:

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1 SINDO C.K.

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AGED 36 YEARS, S/O KUNJU VAREETH C.P, CHERADAYI HOUSE, KOMBODINJAMAKKAL, THAZHEKKAAD P.O.MUKUNDAPURAM TALUK, THRISSUR-680 697.

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2 KUNJU VAREETH C.P, CHERADAYI HOUSE, KOMBODINJAMAKKAL, THAZHEKKAAD P.O.MUKUNDAPURAM TALUK, THRISSUR-680 697.

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3 SELEENA KUNJU VAREETH, W/O KUNJU VAREETH C.P, CHERADAYI HOUSE, KOMBODINJAMAKKAL, THAZHEKKAAD P.O., MUKUNDAPURAM TALUK, THRISSUR-680 697.

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BY ADVS. A.JAYASANKAR SRI.MANU GOVIND

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RESPONDENTS:

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1 ATHIRA JOY

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AGED 31 YEARS, D/O K.J. JOY, KOCHANICHOTTIL HOUSE, KARIMANNUR P.O.KARIMANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT-685 581, (NOW RESIDING AT APT 8, 201 OMINA STREET MOOSA JAWSK, CANADA S6H1X3).

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O.P.(FC) No.199 of 2020

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2 K.J. JOY, AGED 64 YEARS, S/O (LATE) JOSEPH, KOCHANICHOTTIL HOUSE, KARIMANNUR P.O. KARIMANOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT-685 581.

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BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH

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THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(FC) No.199 of 2020

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JUDGMENT

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P.G. Ajithkumar, J.

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The order of the Family Court, Muvattupuzha dated 09.03.2020 in I.A.No.1328 of 2019 in O.P.No.588 of 2019 is

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under challenge in this Original Petition filed under Article 227 of the Constitution of India.

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The petitioners, who are the respondents in the said O.P. filed I.A.No.1328 of 2019 seeking to dismiss that original petition as not maintainable. The Family Court dismissed that interlocutory application.

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The original petition was admitted on 17.06.2020. Interim order staying all further proceedings in O.P.No.588 of 2019 was ordered on 17.06.2020 for a period of four weeks. That order has been extended from time to time.

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Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.

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O.P.No.588 of 2019 was filed by the respondents

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seeking a decree of return of gold and realisation of money.

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O.P.(FC) No.199 of 2020

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The petitioners filed I.A.No.1328 of 2019 stating that O.P.No.144 of 2016 filed by the respondents earlier claiming the same relief was dismissed for default, and the petition filed for restoration to file the said O.P. also was dismissed. Hence, O.P.No.588 of 2019 was sought to be dismissed as not maintainable.

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Order IX, Rule 9 of the Code of Civil Procedure, 1908 precludes plaintiff from filing a fresh suit in respect of the same cause of action, where the suit is dismissed wholly or in part. That bar is attracted only if the suit has been dismissed under Rule 8 of Order IX of the Code. While allowing Mat.Appeal No.1014 of 2016, which was filed against judgment in O.P.No.144 of 2016, Ext.P2, we held that the said judgment was not one rendered under Rule 8, Order IX of the Code. Therefore, the contention of the petitioners that the bar under Rule 9, Order IX of the Code attracts in the case of O.P.No.588 of 2019 is untenable.

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The relief claimed in O.P.No.144 of 2016 and O.P.No.588 of 2019 are the same. The subject matter in both

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O.P.(FC) No.199 of 2020

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cases are directly and substantially the same. That, however, is not a reason to find that the subsequent original petition is not maintainable. Once the previous petition is decided, that certainly bars trial of the subsequent petition. That is a matter to be considered at the appropriate stage. We are therefore of

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the view that the Family Court rightly had dismissed I.A.No.1328 of 2019 and held that O.P.No.588 of 2019 was maintainable. This Original Petition therefore fails and it is accordingly dismissed.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

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O.P.(FC) No.199 of 2020

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APPENDIX OF OP (FC) 199/2020 PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION NO 301/2015 DATED 31.10.2015 FILED BY THE RESPONDENTS BEFORE THE FAMILY COURT, MUVATTUPUZHA EXHIBIT P2 TRUE COPY OF THE ORDER DATED 27.7.2016 IN OP NO 144/2016 OF THE FAMILY COURT, THODUPUZHA EXHIBIT P3 TRUE COPY OF THE INTERLOCUTORY APPLICATION ALONG WITH THE AFFIDAVIT DATED 24.5.2018 IN OP NO 144/2016 ON THE FILE OF FAMILY COURT, MUVATTUPUZHA FILED BY THE RESPONDENTS.

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EXHIBIT P4 TRUE COPY OF THE COMMON ORDER DATED 29.8.2018 IN IA NO 627 AND 628 OF 2018 IN OP NO 144/2016 OF FAMILY COURT, MUVATTUPUZHA.

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EXHIBIT P5 TRUE COPY OF THE ORIGINAL PETITION NO 338/2018 DATED 3.10.2018 FILED BY THE RESPONDENTS BEFORE THE FAMILY COURT, THODUPUZHA

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EXHIBIT P6 TRUE COPY OF THE PETITION ALONG WITH THE AFFIDAVIT (IA NO 1328/2019 IN OP NO 588/2019) DATED 4.10.2019 FILED BY THE PETITIONERS EXHIBIT P7 TRUE COPY OF THE DATED 27.12.2019 IN IA NO 1328/2019 IN OP NO 588/2019 FILED BY THE RESPONDENTS EXHIBIT P8 TRUE COPY OF THE ORDER DATED 9.3.2010 IN IA NO 1328/2019 IN OP NO 588/2019 ON THE FILE OF FAMILY COURT, MUVATTUPUZHA

Sindo C.K. v. Athira Joy

Case brief

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What did the court decide?

Sindo C.K. v. Athira Joy

Case brief

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