Dismissed

John Bastin v. Rosalin Magi John

Kerala HC21 Feb 2023OP (FC)/86/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an original petition under Article 227. The petitioner sought to set aside the Family Court's order dismissing an application for handwriting comparison. The Court held that as the 1st respondent admitted the authenticity of the signatures before the Family Court, the purpose of comparison was served, rendering the order without infirmity.

What did the court decide?

The original petition seeking to set aside the Family Court order dismissing I.A.No.3 of 2020 is dismissed.

John Bastin Vs Rosalin Magi John — 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. 86 OF 2023

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AGAINST THE ORDER DATED 23.11.2022 IN I.A.NO.3 OF 2020 IN O.P.NO.259 OF 2019 OF THE FAMILY COURT, KOLLAM

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PETITIONER:

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JOHN BASTIN AGED 72 YEARS S/O SEBASTIAN, NISHMA BHAVANAM, NADUVILAKKARA CHERRY, KOTTIYAM P.O., KOLLAM DISTRICT, PIN – 691571.

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BY ADVS. M.KIRANLAL MANU RAMACHANDRAN R.RAJESH (VARKALA) SAMEER M NAIR GEETHU KRISHNAN SAILAKSHMI MENON

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RESPONDENTS:

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1 ROSALIN MAGI JOHN AGED 61 YEARS, D/O THRESSIAMMA DANIEL, RIDAYAKUNCH, CUTCHERRY WARD, CUTCHERRY P.O, KOLLAM DISTRICT, PIN – 691013.

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2 NISMA M.JOHN AGED 28 YEARS, D/O THRESSIAMMA DANIEL, RIDAYAKUNCH, CUTCHERRY WARD, CUTCHERRY P.O, KOLLAM DISTRICT, PIN – 691013.

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

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O.P.(FC) No.86 of 2023

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JUDGMENT

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P.G. Ajithkumar, J.

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The petitioner in O.P.No.259 of 2019 on the file of the Family Court, Kollam, which was later transferred to the Family Court, Paravur, has filed this Original petition under Article 227 of the Constitution of India seeking to set aside order of the Family Court dated 23.11.2022 dismissing I.A.No.3 of 2020.

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Heard the learned counsel appearing for the petitioner in detail.

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O.P.No.259 of 2019 is filed seeking a decree of return of gold ornaments and realisation of money. The respondents did not appear before the Family Court, despite receipt of notice. However, they subsequently entered appearance and filed I.A.No.2 of 2020 seeking to set aside the order declaring them exparte. A written objection was filed by the petitioner in which he took up a contention that the signatures appeared in the affidavit filed in support of I.A.No.2 of 2020 as well as vakalath were not put by the 1^st

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O.P.(FC) No.86 of 2023

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respondent. The petitioner also filed I.A.No.3 of 2020 invoking the provisions of Section 73 of the Indian Evidence Act, 1872 requesting the Family Court to send I.A.No.2 of 2020 and Vakalath for comparison of the signatures in it with the admitted signature of the 1^st respondent so as to ascertain the genuineness of those signatures. The Family Court asked the 1^st respondent to appear before the court. She appeared and admitted before the court that the signatures in the affidavit filed in support of I.A.No.2 of 2020 in O.P.No.259 of 2019 were put by her. In view of that statement before the court, the Family Court dismissed I.A.No.3 of 2020.

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The learned counsel appearing for the petitioner would submit that the signatures in I.A.No.2 of 2020 and the vakalath have no comparison with the signature appeared as that of the 1^st respondent in Ext.P6 Vakalath, and therefore it is absolutely essential to send the said documents for comparison by a handwriting expert. An expert opinion regarding genuineness of a signature is required to verify whether the signatures in question were put by the person,

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O.P.(FC) No.86 of 2023

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who purportedly had scribbled that signature. Here, the 1^st respondent admitted before the court that the signature in the affidavit filed along with I.A.No.2 of 2020 were put by the 1^st respondent herself. In the light of that admission before the court purpose of comparison of the signatures in I.A.No.2 of 2020 has faded away and became inconsequential.

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In such circumstances, the order of the Family Court dismissing I.A.No.3 of 2020 has no infirmity. Only if an order in question is patently illegal, the same can be interfered by this Court in exercise of the powers under Article 227 of the Constitution of India. Therefore, this Original Petition fails and it is accordingly dismissed.

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Sd/ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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O.P.(FC) No.86 of 2023

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APPENDIX OF OP (FC) 86/2023

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PETITIONER EXHIBITS

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EXHIBIT P1 A TRUE COPY OF THE PETITION IN OP 259/2019 EXHIBIT P2 A TRUE COPY OF THE I.A NO. 2/2020 IN O.P NO.259/2019 FILED BY THE RESPONDENTS EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A NO.2/2020 IN O.P NO.259/2019 EXHIBIT P4 A TRUE COPY OF THE I.A NO. 3/2020 IN O.P NO.259/2019 DATED 07.10.2020 EXHIBIT P5 A TRUE COPY OF THE ORDER IN I.A 3/2020 DATED 23.11.2022 EXHIBIT P6 A TRUE COPY OF THE VAKALATH OF THE 1ST RESPONDENT FILED IN O.P 1149/2016 ON THE FILES OF FAMILY COURT, KOLLAM EXHIBIT P7 THE TRUE COPY OF VAKALATH OF THE RESPONDENTS IN O.P NO.259/2019 EXHIBIT P8 A TRUE COPY OF THE RECEIPT SIGNED BY THE 2ND RESPONDENT WHILE RECEIVING MAINTENANCE FROM THE PETITIONER

John Bastin v. Rosalin Magi John

Case brief

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What did the court decide?

John Bastin v. Rosalin Magi John

Case brief

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What did the court decide?

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