IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 4759 of 2010(R) ------------------------- PETITIONERS: PETITIONERS/DEFENDANTS ------------------------------------- 1. RANGANATH.M., PATTERIPARAMBIL HOUSE, THIRUVAMPADY P.O., ALAPPUZHA. 2. M.SWAMINATHAN,PATTERIPARAMBIL HOUSE, THIRUVAMBPADY P.O., ALAPPUZHA,REPRESENTED BY HIS LAWFUL POWER OF ATTORNEY, P.LEELA,PATTERIPARAMBIL HOUSE, THIRUVAMPADY P.O., ALAPPUZHA. 3. M.RAJALEKSHMI, PATTERIPARAMBIL HOUSE, THIRUVAMPADY P.O., ALAPPUZHA. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): COUNTER PETITIONERS/PLAINTIFFS --------------------------------------------- 1. RAJASHREE RAJAGOPAL, PERUMPALLIL HOUSE, PARAYAM, UMAYANALLOOR P.O., KOLLAM DISTRICT. 2. ROHIT, AGED 8 YEARS, MINOR, REPRESENTED BY HIS MOTHER, RAJASHREE RAJAGOPAL, PERUMPALLIL HOUSE, PERAYAM, UMAYANALLOOR P.O., KOLLAM DISTRICT. ADV. SRI.B.MOHANLAL FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, ALONGWITH WP(C) 5864 OF 2010 AND WPC 5976 OF 2010. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : PHOTOSTAT COPY OF THE PLAINT IN O.S. NO. 170 OF 2007 ON THE FILE OF THE FAMILY COURT, KOLLAM. EXT.P2 : PHOTOSTAT COPY OF THE WRITTEN STATEMENT EXT.P3 : PHOTOSTAT COPY OF THE I.A. NO. 2564 OF 2007 IN O.S. NO. 170 OF 2007. EXT.P4 : PHOTOSTAT COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN I.A. NO. 2564 OF 2007 IN O.S. 170 OF 2007. EXT.P5: CERTIFIED COPY OF THE ORDER DT. 16.11.2009 IN I.A. NO. 2564 OF 2007 IN O.S. NO. 170 OF 2007 OF THE FAMILY COURT, KOLLAM RESPONDENTS' EXHIBITS : NIL K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).Nos. 4759, 5864 & 5976 of 2010 R - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of February, 2010 JUDGMENT Joseph, J. These Writ Petitions being between the same parties, we dispose of the same by a common judgment. W.P.(C) No. 4759 of 2010: 2. This Writ Petition is filed by the husband and two others against the order dismissing the application seeking a decision on the question of maintainability of O.S.No. 170 of 2007, which was filed for recovery of money. According to the petitioner, the claim is barred by limitation. We went through the order. 3. We heard the learned counsel for the petitioner and the learned counsel appearing on behalf of respondents 1 and 2. 4. The Family Court has found that the entire claim is not barred by limitation. In the course of the order, the Family Court W.P.(C).Nos 4759/10 & connected cases 2 has apparently made observations to the effect that some claims are barred by limitation. We would think that the question as to whether the claims are barred by limitation should be decided after evidence is adduced. We see no reason to interfere with the order on maintainability. However, we make it clear that when the case is taken up and decided finally, it will be done untrammeled by any of the observations contained in the impugned order. Subject to the same, this Writ Petition is disposed of. W.P.(C) 5864 of 2010 5. This Writ Petition is filed by the wife against the order passed in I.A.Nos. 1441 and 1442 of 2008 in O.P.(H.M.A.) 446 of 2004. By the impugned order, the Family Court has allowed the application filed by the respondent for restoration and condonation of delay in filing the same. The respondent had filed the Original Petition seeking divorce, which was dismissed for default. By the impugned order, the Family Court has restored the application. W.P.(C).Nos 4759/10 & connected cases 3 6. We do not see any jurisdictional issue warranting interference with an order restoring the Original Petition, which was dismissed for default. We do not think that the interests of justice will be sub-served if we were to interfere in such an order. Accordingly, this Writ Petition is dismissed. W.P.(C) No. 5976 of 2010 7. This Writ Petition was filed by the wife against the order passed in I.A. No. 2983 of 2009 in O.P.(G&W) 16 of 2009, which was filed by the respondent/husband seeking order appointment as guardian. According to the petitioner/wife, O.P. (G&W) 748 of 2004 filed by the husband for custody of the child was dismissed. Therefore, according to the petitioner, a fresh application for appointment of the respondent as guardian of the minor child is not maintainable. 8. The learned counsel for the petitioner would submit that the matter is barred by res judicata. We perused the order. The Family Court has found that O.P. (G&W) NO. 748 of 2004 was admittedly W.P.(C).Nos 4759/10 & connected cases 4 dismissed for default for non-appearance of the petitioner when the matter was posted for evidence. The Family Court has further reasoned that the case of the respondent is that O.P. (G&W) 748 of 2004 was instituted when the husband was driven out of the house in 2004 and at that time the child was aged 3 years. Now the child is aged 8 years and is studying in IIIrd standard. Due to change in circumstance, he filed the present Original Petition on the cause of action which arose in the year 2008. 9. In the present Original Petition, the cause of action is stated to be that the husband is not allowed to see the child. It is further found that the bar is to file a fresh Original Petition in respect of the same cause of action. It is further stated that since the child was aged only 4 years in the year 2004, the mother was entitled for custody. But now the child is aged 8 years and there is a change in circumstance, which the petitioner can raise for getting custody of the child, if he is able to convince that he can safeguard the welfare of the child. It is further found that the Original Petition is not barred under W.P.(C).Nos 4759/10 & connected cases 5 Section 12 and Order 9 Rule 9 C.P.C. and it is maintainable. 10. We do not see any merit in the challenge raised by the wife. In respect of matters like custody of minor children, it is settled law that any order relating to custody, even if it be on merits, is subject to modification if there is change of circumstance. In this case the earlier Original Petition was dismissed only for default. There is no finding even on merits. We cannot also entirely overlook the fact that the child is 8 years in 2008. Of course, the question as to whether the petition filed by the husband is to be allowed is a matter to be decided on the basis of the evidence adduced and with reference to the legal principles which have been settled in the matter. Subject to the said observation, this Writ Petition is disposed of. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) tm Judge