IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 Mat.Appeal.No. 825 of 2009(F) ---------------------------- AGAINST THE ORDER DATED 01/10/2009 IN IA.2589/09 IN OP.950/2008 of FAMILY COURT, THIRUVALLA .................... APPELLANT/PETITIONER --------------- SREELATHA, AGED 35 YEARS, W/O.RAJENDRAN K., ANANDA BHAVAN, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK. BY ADV. SRI. K.SHAJ SRI.L.RAJ MOHAN SRI.SAJJU.S RESPONDENT : RESPONDENT --------------- RAJENDRAN K., KARTHIKA BHAVAN, PIDAYANNOOR RESIDENTIAL ASSOCIATION, NETTAYAM, PEROORKADA P.O, THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ Mat.Appeal No.825 of 2009 ------------------------------------- Dated this the 13th day of November, 2009 JUDGMENT BASANT, J. The appellant is the wife of the respondent herein and she had filed O.P.No.950 of 2008 before the Family Court, Thiruvalla claiming return of articles, ornaments and money from the respondent herein. The case is at the stage of pre trial steps. Trial has not started. At this juncture the appellant felt that adequate pleadings had not been raised and the appellant filed Annexure-III application as I.A.No.2589 of 2009 for amendment of the petition. The matters to be amended are shown in paragraphs 1 to 5 of Annexure-III. The application was opposed on the ground that it was belated and that it virtually transforms the nature of the suit. The court below considered the objections and proceeded to pass the impugned order, a copy of which is produced as Annexure-V. The prayers for amendment was allowed in part. The prayers for amendment shown as 2 to 5 of Annexure-III are allowed. The prayer for amendment as shown in para.1 of Annexure-III was not allowed. The petitioner claims Mat.Appeal No.825 of 2009 2 to be aggrieved by the rejection/refusal of the prayer to amend the plaint as shown in para.1. 2. We initially entertained doubts as to how this Matrimonial appeal is maintainable. We are certainly of the opinion that this cannot be reckoned as a final order and therefore the impugned order being in the nature of an interlocutory order under Section 19 of the Family Court Act, an appeal is not maintainable. Though an appeal is not maintainable, we felt that in the interests of justice our powers under Article 227 of the Constitution can be invoked and the question can be considered. It is accordingly that this Mat.Appeal was admitted with specific observations to that effect on 22.10.09. 3. The respondent has entered appearance. We have heard both the counsel. 4. First of all we take note that the trial has not commenced. We further take note that the nature of the claim is not altered. The total amount claimed is the same. The amendment sought in para.1 to 5 of Annexure-III are only giving details and specifications about the nature of the claim. The inadequacy in the pleadings for the relief claimed is sought to be Mat.Appeal No.825 of 2009 3 corrected by the amendment. It is of relevance to note that the amendment has been permitted as claimed in para.2 to 5. The learned counsel for the appellant submits that the permission granted for amendment as claimed in para.2 to 5 of Annexure-III would lose their meaning and content if the amendment is not permitted as sought in para.1 of Annexure-III. In these circumstances, the counsel prays that para.1 may also be permitted to be amended. 5. The learned counsel for the respondent submits that the amendment is sought to be brought in after coming to know of the defence raised by the respondent. This causes prejudice and hardship to the respondent, it is submitted. 6. We have considered all the relevant aspects anxiously. We must say that we are of the opinion that granting the amendment as claimed in para.2 to 5 of Annexure-III without granting the amendment sought in para.1 of Annexure-III is not justified at all. Rather such granting of reliefs in para.2 to 5 without granting the prayer for amendment as shown in para.1 of Annexure-III borders perversity as the amendment shown in other paragraphs are really in the nature of explanation in furtherance of the amendments which were sought in para.1. Mat.Appeal No.825 of 2009 4 7. The only thing that causes us concern is the fact that such amendment is brought in belatedly after the pleadings were completed and before commencement of the trial. We are, in these circumstances, satisfied that the challenge raised in this proceedings is justified. Subject to appropriate terms which shall compensate the respondent for the inconvenience and loss suffered because of the belated amendment, we are satisfied that the challenge can be allowed. 8. In the result: a) This Appeal is allowed subject to conditions; b) The impugned order shall stand modified and the appellant shall be permitted to carry out the amendments prayed for in para.1 of Annexure-III also on condition that the appellant pays cost of Rs.1,000/- (Rupees One thousand only) to the respondent within a period of 15 days from this date. Needless to say, consequent to the amendment, the respondent must be given an opportunity to file appropriate additional statements or take appropriate further steps before the matter is posted for trial. 9. The parties shall appear before the Family Court on 30.11.09. If the cost is paid as directed, the Family Court shall Mat.Appeal No.825 of 2009 5 record that fact and permit the appellant to carry out the amendment. If cost is not paid, the impugned order shall continue to remain in force. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-