IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 OP (FC).No. 178 of 2010(R) -------------------------- AGAINST THE ORDER IN OP 126/10 IN OP.681/2010 of FAMILY COURT,TRIVANDRUM .................... PETITIONER -------------------- THRESIAMMA MANSHOVEN, W/O. MANSHOVEN JACQUES JOSEPH, HOUSE NO.II/800, CLOVER LAND, PARUTHIKUNNU, MANVILA, ENGINEERING COLLEGE.P.O., TRIVANDRUM. BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR RESPONDENT: --------------- MANSHOVEN JACQUES JOSEPH, HOUSE NO.II/800, CLOVER LAND, PARUTHIKUNNU, MANVILA, ENGINEERING COLLEGE.P.O., TRIVANDRUM NOW RESIDING AT 5H, RAINBOW APARTMENTS, PEROORKADA, TRIVANDRUM-5. ADV. SRI.SIBY MATHEW FOR R-1 SRI.PHILIP J.VETTICKATTU FOR R-1 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** O.P(F.C) No.178 of 2010 ***************************** Dated this the 22nd day of October, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court aggrieved by five orders, copies of which are produced as Exts.P9, P10, P11(b), P12 and P13. 2. A synoptic resume of the events which led to passing of these orders, according to us, would be crucially relevant. The parties to this Writ Petition are spouses. The petitioner/wife is an Indian national. The respondent/husband is a Belgian national. Their marriage had taken place 25 years ago. 2 sons, both aged above 21 years, are born in the wedlock. In 2004, a sale deed was executed by the wife in favour of the husband. We are not adverting to the rival contentions about the circumstances under which the said sale deed was executed. Shortly after the execution of the sale deed, O.P.No.681 of 2007 was filed by the husband claiming divorce. Immediately O.P(F.C) No.178 of 2010 2 thereafter the wife filed an application before the same Family Court as O.P.No.934 of 2007. She apprehended that she may be evicted from the property in respect of which the 2004 sale deed was executed by her in favour of her husband. Both these O.Ps, ie. O.P.No.681& 934 of 2007, were ordered to be jointly tried in 2008. Evidence commenced. Commissioner was appointed to record evidence and time was taken to complete the recording of evidence. Recording of evidence was complete and the matter stood posted for arguments to 29.01.2010. 3. On that day, the wife filed O.P.No.126 of 2010 to set aside the sale deed of 2004 which she executed in favour of her husband, the respondent herein. According to the petitioner, along with the said O.P, on 29.01.2010 itself, she had filed 3 I.As. We are now concerned only with 2 of the said 3 I.As, that is the I.As which have subsequently been numbered as I.A .No.178A of 2010 and I.A.No.179A of 2010. Of the five impugned orders, two, ie. Exts.P12 and P13 have been passed in the said I.A.No.178A and 179A of 2010. 4. The learned counsel for the petitioner was requested to explain the gist of the grievance, on the basis of which the petitioner/wife wants this Court to invoke its extraordinary constitutional jurisdiction under Article 227. We have heard the O.P(F.C) No.178 of 2010 3 learned counsel in detail. The counsel submits that his grievance is that his prayer to try O.P.No.126 of 2010 along with the earlier O.Ps.681 and 934 of 2007 has not been considered properly by the court below. 5. The counsel contends that as a matter of fact, these petitions were filed on 29.01.2010 itself along with O.P.No.126 of 2010. But the court below did not number them. The same were numbered long later as I.A.Nos.178A and 179A of 2010. The counsel points out that the petitioner, who was a party to O.P.Nos.681 & 934 of 2007, had filed I.A.No.1960 of 2010 in O.P.No.681 of 2007. That petition was filed to review the order and reopen the evidence in the joint trial. That prayer was rejected by order dated 26.08.2010 vide Ext.P9. She had also filed I.A.No.1959 of 2010 to get a court certificate issued so that she could obtain copy of a document and produce the same in O.P.No.681 of 2007. That petition was dismissed vide Ext.P10 order. The petitioner had filed I.A.No.2147 of 2010 in O.P.No.126 of 2010 requesting that, joint trial may be ordered of all the 3 O.Ps. According to the petitioner, she was obliged to file I.A.No.2147 of 2010 as her earlier application (which now stands numbered as I.A.No.178A of 2010) was not taken up for consideration by the Family Court. On 22.09.2010, Ext.P11(b) O.P(F.C) No.178 of 2010 4 and P12 orders were passed by the Family Court dismissing both applications for joint trial vide Exts.P11B and P12 orders. According to the petitioner, she had filed an earlier application for stay of the proceedings in O.P.No.681 of 2007 and 934 of 2007. That I.A was also not numbered promptly. It was numbered long later as I.A.No.179A of 2010. That petition for stay was dismissed vide Ext.P13 order. 6. The learned counsel for the petitioner, in these circumstances, prays that the jurisdiction under Article 227 may be invoked to direct joint trial of O.P.No.126 of 2010 along with O.P.Nos.681 of 2007 and 934 of 2007, in which joint trial have been ordered earlier and in which the evidence was closed by the time O.P.No.126 of 2010 was filed on 29.01.2010. 7. The learned counsel for the respondent submits that it is absolutely incorrect to say that I.A.Nos.178A and 179A of 2010 were filed along with O.P.No.126 of 2010. The petitioner had no intention of pressing for any orders in those I.As. Long later, a request has been made to number those I.As and accordingly the same have been numbered. Even before O.P.No.126/2010 was filed, O.P.Nos.681 and 934 of 2007, in which joint trial was ordered, had proceeded to the final stages. In any view of the matter, the prayer for joint trial is without any O.P(F.C) No.178 of 2010 5 bona fides. The learned counsel for the respondent submits that even O.P.No.126 of 2010 is without any bona fides. The petitioner who had only sought an injunction against eviction in O.P.NO.934 of 2007 has come to Court long later in 2010 to set aside a document executed by her in 2004. The learned counsel argues that there is absolutely no bona fides in O.P.No.126 of 2010. At any rate, that O.P can be disposed of on its merit by the court below separately. There is absolutely no justification in requesting O.P.No.126 of 2010, filed on the date when the other O.Ps were posted for arguments, to be tried along with the earlier two O.Ps. 8. The learned counsel for the petitioner submits that it is incorrect to say that the O.Ps in which joint trial was ordered stood posted for arguments to 29.01.2010. The learned counsel points out that subsequently evidence has actually been recorded in those O.Ps in which joint trial was ordered. The learned counsel for the respondent submits that while it is true that subsequently some evidence was recorded in those O.Ps in which joint trial was ordered, that was only because the matter was reopened to admit subsequent evidence. The fact that evidence was recorded subsequent to 29.01.2010, does not militate against the argument that O.P.No.126 of 2010 was filed O.P(F.C) No.178 of 2010 6 after the O.Ps in which joint trial was ordered reached the fag end of the proceedings, submits the learned counsel for the respondent. 9. We have considered the submissions of both sides. We must alertly remind ourselves that we are called upon to invoke and exercise the extraordinary constitutional jurisdiction under Article 227. If perversity results or failure or miscarriage of justice would ensue, we have no hesitation to agree that the powers under Article 227 of the Constitution can be invoked. 10. But in this case realistically the facts have to be looked at. The document was executed in 2004. O.P for divorce was filed in 2007. Subsequently the petitioner/wife had filed O.P.No.934 of 2007 only to prevent the consequence of she being thrown out of possession from the property ,in respect of which she executed the sale deed of 2004. Even at that stage or earlier, she did not think it necessary to file any suit to set aside the sale deed of 2004. Admittedly joint trial was ordered. Admittedly joint trial proceeded. Admittedly the evidence was completed, notwithstanding the fact that subsequently after reopening, some further evidence was adduced. Till that stage, the petitioner did not think it necessary to file O.P.No.126 of 2010 incorporating the prayer to set aside the sale deed of 2004. O.P(F.C) No.178 of 2010 7 11. We shall not express any opinion on the merits of the claims in the 3 O.Ps. We are in any view of the matter satisfied that the court below has committed no error in not stopping the proceedings in O.P.Nos.681 and 934 of 2007, in which joint trial was ordered, merely because O.P.No.126 of 2010 was filed by the petitioner on 29.01.2010. It is of course true that there may be common points arising for consideration in the 3 proceedings. But, at any rate, the course adopted by the Family Court in not stopping the proceedings in the joint trial in O.P.No.681 and 934 of 2007 and in not directing joint trial of O.P.No.126 of 2010 along with the said two earlier O.Ps, we are convinced, does not call for any interference by invoking our jurisdiction under Article 227 of the Constitu. This O.P(F.C), in these circumstances, deserves only to be dismissed. 12. This O.P(F.C) is accordingly dismissed. We may hasten to observe that we have not intended to express any opinion on the maintainability of O.P.No.126 of 2010. That O.P will have to be disposed of by the Family Court separately in accordance with law. Needless to say, O.P.Nos.681 and 934 of 2007 in which joint trial has already been ordered and which, it is submitted by the learned counsel for the respondent, is ripe for disposal now, will have to be disposed of with expedition O.P(F.C) No.178 of 2010 8 considering the fact that those O.Ps have been pending from 2007. They will have to be disposed of in accordance with law by the court below expeditiously. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/