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 23RD JUNE 2011 / 2ND ASHADHA 1933 OP (FC).No. 1990 of 2011(R) ------------------------------------- OP.632/2010 of FAMILY COURT, MALAPPURAM .................... PETITIONER (S):/PETITIONER/RESPONDENT: ----------------------------------------------------------------- ABDUL RASHEED, AGED 27 YEARS, S/O.LATE ABOOBACKER, NEDUVILAPARAMBIL HOUSE, P.O.ALATHIYOOR, TIRUR, MALAPPURAM. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT(S): RESPONDENTS/PETITIONER: ------------------------------------------------------------------- 1. MUFEEDA, AGED 22 YEARS, D/O.USMAN VALAPPIL, CHATHERY HOUSE, NIRAMATHOOR AMSOM DESOM, TIRUR, MALAPPURAM - 676101. 2. FATHIMA RIMNA, AGED 1 YEARS (MINOR) (MINOR IS REPRESENTED BY THE MOTHER IST RESPONDENT). THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OPFC NO.1990 OF 2011: PETITIONER'S EXHIBITS: EXT.P1. A TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT LETTER ISSUED BY MR.CHATHERY SHAJI, WHO IS THE MATERNAL UNCLE OF THE IST RESPONDENT ON 25.10.2008. EXT.P2 .A TRUE PHOTOCOPY OF THE MEMORANDUM OF ORIGINAL PETITION SUBMITTED BY THE IST RESPONDENT BEFORE THE FAMILY COURT, MALAPPURAM AS OP.NO.632/2010. EXT.P3. A TRUE PHOTOCOPY OF THE COUNTER FILED BY THE PETITIONER, IN THE OP NO.632/2010. EXT.P4.A TRUE PHOTOCOPY OF THE PETITION FILED BY THE PETITIONER AS IA NO.160/2011. EXT.P5. A TRUE PHOTOCOPY OF THE COUNTER FILED BY THE IST RESPONDENT AGAINST EXHIBIT P4. EXT.P6. A TRUE PHOTOCOPY OF THE ORDER OF THE LEARNED FAMILY COURT JUDGE, IN IA NO.160/2011 DATED 11.2.2011. EXT.P7. A TRUE PHOTOCOPY OF THE FIR IN CR.NO.148/2011 OF TIRUR, POLICE STATION UNDER SECTION 406 AND 420 OF THE INDIAN PENAL CODE. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ O.P.(FC) No.1990 of 2011-R ---------------------------------------------- Dated, this the 23rd day of June, 2011 J U D G M E N T K.M.Joseph, J. Petitioner has approached this court seeking the following reliefs: “i) to call for the records leading to the issuance of Exhibit P6. ii) to issue an order quashing Exhibit P6 order passed by the learned Family Court Judge, Malappuram as illegal, irrational and procedurally improper. iii) to issue a direction to the learned Family Court Judge to allow Exhibit P4 petition filed by the petitioner for impleading Mr.Chathery Shaji as additional respondent in OP NO.632/2010 pending on the files of Family Court, Malappuram.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is the respondent in OP No.632/2011 filed by the respondents herein for return of gold ornaments and currency. The case of the petitioner is that the ornaments were received by the maternal uncle of the Ist respondent that is the brother of the Ist respondent's mother with the knowledge and consent of the Ist respondent. Ext.P1 is produced as the acknowledgment issued OPFC 1990/2011 -2- by the uncle. Despite knowledge of the same the Original Petition is filed. The uncle is cited as a witness in the above said OP. Petitioner has reliable knowledge that the uncle shall not be ready and willing to tell the real facts before the court being a witness. Reference is also placed on the fact that police has registered Ext.P7 FIR against the maternal uncle. Petitioner filed application to implead the said uncle. It is the said application which has been rejected by Ext.P6 order. 3. We heard the learned counsel for the petitioner. Learned counsel for the petitioner would submit that there is a criminal case. He further submits that if the maternal uncle of Ist respondent is not made a party petitioner will not be able to prove his case. Reference is also made to Order 1 Rule 10 (2) of Code of Civil Procedure. 4. The Family Court, no doubt has found as follows: ”The learned counsel appearing for the gentleman has frankly conceded before court that there is no enabling provision for a respondent to file such petition in an OP of the like nature. Admittedly there is no pleading that the OP is bad for non joinder of necessary party. This OP is filed by the wife and minor daughter for past maintenance and getting back ornaments and currency from the respondent. That respondent cannot come OPFC 1990/2011 -3- before court with this IA seeking to implead one of the witnesses named in the OP as additional second respondent therein. The petitioner in OP will remain master of her case and the husband has no say as to from whom all she should claim the reliefs in the OP. Viewed from any angle this IA is found is not maintainable and accordingly the same is found liable to be dismissed with cost. Point is answered accordingly.” Earlier, the Family Court has found that the petitioner filed counter and after exhausting the steps the OP stand included for evidence in the special list and then comes this application to implead witness No.1 in that witness list of petitioner as additional 2nd respondent in the OP. No doubt, learned counsel for the petitioner may be justified in contending that the application to implead under CPC may be entertained even at the instance of the respondent/defendant. In fact, it is open to the court itself to implead. But, that apart we are in agreement with the reasoning of the learned Judge of the Family Court in declining the application. The timing of the application apart, we notice that there is no merit in the contention of the petitioner that if the person who sought to be impleaded is not brought on the party array there will be miscarriage of justice by denying the petitioner an opportunity to OPFC 1990/2011 -4- prove his case. The apprehension of the petitioner is that the person sought to be impleaded to whom according to the petitioner the ornaments have been entrusted may disown the entrustment and speak untruth. But, petitioner will have the right to cross examine. According to the petitioner Ext.P1 is the acknowledgment card. Petitioner can confront the witness. Petitioner will have right to adduce evidence also. There is no jurisdictional error as such. No doubt, we have already stated the petitioner is right in contending that the Family Court should not have said that there is no enabling provision. But, even with the enabling provision we would think that the final decision of the Family Court is unassailable. We are equally unimpressed by the contention based on Ext.P7 FIR. Ext.P7 is only an FIR. The fact that FIR is lodged does not mean in the first place that the person concerned is to be charge sheeted. It is only at the investigation stage, it will be indulging in conjecture for us to presently come to the conclusion that at the later point of time criminal court will consider the matter and find him guilty. We would think that cannot by itself take away the powers of the Family Court. At any rate, we do not wish to comment on the same at all. Accordingly, OPFC 1990/2011 -5- the Original Petition is dismissed without prejudice to the rights available to the petitioner in law to establish his case. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS