IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 WP(C).No. 22976 of 2009(R) -------------------------- I.A.2027/09 IN OP.733/2005 of FAMILY COURT, NEDUMANGAD .................... PETITIONER(S): ------------------- KRISHNA PILLAI, KRISHNA , NEAR ITI, ATTINGAL VILLAGE, ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENT(S): -------------------- 1. OMANA, D/O.SAVITHRI, KRISHNA, NEAR ITI, ATTINGAL VILLAGE, ATTINGAL, THIRUVANANTHAPURAM. 2. RAJI, D/O. OMANA, KRISHNA, NEAR ITI, ATTINGAL VILLAGE, ATTINGAL, THIRUVANANTHAPURAM. ADV. SRI.RAM MOHAN.G. FOR R1-2 SRI.G.P.SHINOD FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/07/2011, ALONG WITH RFA NO. 52 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22976 OF 2009 A P P E N D I X Petitioner's Exhibits : Ext.P1 : TRUE COPY OF THE PLAINT IN O.P.NO.733/2005 ON THE FILES OF THE FAMILY COURT, NEDUMANGAD. Ext.P2 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.P.NO.733/2005. Ext.P3 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT IN O.P.NO.733/2005. Ext.P4 : TRUE COPY OF THE COMMON ORDER IN I.A.1387/2008 IN O.P.731/2008 AND I.A.1388/2008 IN O.P.733/2008 DATED 10.6.2008 OF THE FAMILY COURT, NEDUMANGAD. Ext.P5 : TRUE COPY OF THE INTERIM ORDER DATED 5.10.2008 IN W.P.(C) NO.22827/2008 OF THIS HONOURABLE COURT. EXT.P6 : TRUE COPY OF THE JUDGMENT DATED 23.1.2009 IN W.P.(C) NO.22827/2008 OF THIS HONOURABLE COURT. EXT.P7 : TRUE COPY OF THE I.A.NO.2027/2007 IN O.P.NO.733/2005 FILED BY THE RESPONDENTS. EXT.P8 : TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P7 DATED 24.7.2009. EXT.P9 : TRUE COPY OF THE ORDER DATED 24.7.2009 OF THE FAMILY COURT, NEDUMANGAD IN I.A.NO.2027/2007 IN O.P.NO.733/2005. TGS (TRUE COPY) P.S. to Judge. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 ----------------------------------------------- Dated 25th July, 2011. J U D G M E N T Joseph, J. This Regular First Appeal and the Writ Petition are connected and hence we dispose of the same by a common judgment. The Writ Petition is filed challenging Ext.P9. The writ petitioner is the husband of the first respondent and father of the second respondent. The writ petitioner is the sole respondent in O.P.733/2005 on the file of the Family Court, Nedumangad. The said Original Petition is filed by the respondents herein for declaration of ownership right and possession over the plaint schedule property and the building situated in the 20 cents of property and for further reliefs. 2. The petitioner filed a detailed objection in the Original Petition as Ext.P2, to which Ext.P3 written statement was filed by the first respondent. There are three other litigations. There is a reference to the cases being tried jointly, in Ext.P9 order of the Family Court. The petitioner filed witness schedule, proof affidavit and produced 11 documents W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 2 on 3.5.2006. The petitioner was examined in part in 2007. The first respondent filed an application to amend her written statement, which was allowed on the same day. The petitioner filed a Writ Petition in 2008 for speedy disposal of the Original Petition pending before the Family Court. It is stated that after Ext.P6 judgment in that Writ Petition, the case was posted for evidence from 30.3.2009. The petitioner was examined on three dates in 2009. His witnesses were examined as PW2 and PW3. The first respondent filed an application for withdrawing O.P.734/2005 with liberty to file a fresh petition, which was dismissed. Thereafter the respondents filed Ext.P7 interlocutory application for amending the plaint, to which Ext.P8 objection was filed and it is overruling the same that Ext.P9 order was passed, allowing the amendment, it is submitted. 3. R.F.A.52/2011 is filed by the first respondent in the Writ Petition, W.P.(C)22976/09. The writ petitioner is the second respondent therein. The first respondent therein obtained a decree for money in O.S.57/2004 on the file of the W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 3 Sub Court, Attingal, against the second respondent. In execution of the same, the decree holder purported to proceed against 1/2 right of the second respondent over the property, which incidentally is part of the property scheduled in O.P.733/2005 pending before the Family Court (part of 'F' schedule). Thereupon, the appellant filed a claim petition. The said claim petition has been rejected. The first respondent moved an application for lifting the attachment, even when the suit was pending. Subsequently, the suit was decreed ex parte and thereafter, the application was taken up and on the basis of the evidence tendered, the court has rejected the application filed by the appellant. 4. We heard the matters together, in view of the connection, as already noted. In the Writ Petition, learned counsel for the petitioner would point out that there is no basis at all for the Family Court to allow an application for amendment. Having regard to the facts and circumstances, he would submit that admissions are withdrawn. He would point W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 4 out the injustice, which is caused to him. It is submitted that the evidence has commenced and witnesses were examined. The evidence of the petitioner is over. An earlier application for amendment had been allowed. It is subsequently another application is filed, which is now allowed, overlooking the principles governing the field of amendment of pleadings. 5. Learned counsel for the petitioner highlighted his grievances with reference to the particular amendments, which were sought to be incorporated and of course, he pointed out that after the amendment of the Civil Procedure Code (hereinafter referred to as 'C.P.C.')with effect from 1.7.2002, the amended provision of Order 6 Rule 17 would govern the situation. He pointed out the affidavit filed in support of the amendment that there is no reference at all to the requirements otherwise to be fulfilled for an application for amendment to be allowed, after the amendment of the C.P.C. 6. Per contra, learned counsel for the first respondent(wife) would remind us that this is a petition under W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 5 Article 227 of the Constitution of India. He would submit that the law regarding amendment of pleadings is settled and that the amendment would be liberally allowed. He would rebut the case of the petitioner with reference to the pleadings and contend that no prejudice is caused to the other side, which is the principle which would govern amendment of the pleadings, even after the amendment of C.P.C. He would also rely on the case law. He invited our attention to Section 10 of the Family Courts Act and pointed out that it is open to the Family Court to devise its own procedure and that is all what is happened in this case. He highlighted the functional need of establishment of Family Court with reference to the purpose, viz., ascertainment of truth. 7. As far as the appeal is concerned, the order of the court below, dealing with the application for lifting the attachment cannot be said to be unjustified on the materials on record. But, then the learned counsel for the appellant would submit that what is involved is the right of the appellant over W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 6 the immovable property wherein she is residing. Learned counsel would submit that stakes are very huge and even proceeding on the basis of the materials on record did justify the court in arriving at a decision, he prays for an opportunity to adduce materials. In this regard, he pointed out the pains taken by the party in the matter before the Family Court. 8. Learned counsel appearing for the decree holder would reiterate that nothing has been made out to justify the impugning of the order of the trial court. He would submit that a decree has been obtained and all that he is doing is proceeding against 1/2 right of the judgment debtor, who happens to be the husband of the appellant. He would point out that a claim under Order 21 Rule 58 C.P.C. is to be decided as if it is a suit and after getting opportunity with the scanty materials which are made available by the appellant, there is nothing wrong in the trial court coming to the conclusion it did. 9. Learned counsel for the appellant would point out that serious injustice would be caused to her if the judgment of W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 7 the trial court in the claim petition is allowed to stand, by virtue of its repercussions in the property suit pending before the Family Court, as he would contend that he would be barred by the plea of res judicata. 10. After having considered the arguments, we would think that as far as the order of amendment is concerned, the matter is to be reconsidered. The Family Court has, in the impugned order stated that the proposed amendment, if allowed, is not likely to change character of the O.P. or to cause any prejudice to the petitioner. Thereafter, it is stated that there is undue delay in filing the amendment application and Rs.3,000/- was awarded as costs. It is the case of the writ petitioner that the application for amendment has not, as such been discussed, with reference to the repercussions arising out of the amendments, which are specifically enumerated. There is also the effect of Order 6 Rule 17 C.P.C. after the amendment, as the amendment petition is filed after amendment of the C.P.C. W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 8 11. Having regard to all facts, we are of the view that an opportunity should be given to the appellant in R.F.A.52/2011, and also the matter relating to amendment, in W.P.(C) 22976/09 should be reconsidered. Necessarily, R.F.A.52/2011 can be allowed only on strict conditions. Learned counsel for the appellant submits that she is prepared to deposit the entire principal amount (Rs.5,61,000/-) and that she has no objection in the amount being withdrawn by the decree holder also. R.F.A.52/2011 : The appeal is allowed. The impugned judgment shall stand set aside on condition that the appellant will deposit Rs.5,61,000/- (Rupees five lakhs sixty one thousand only) within a period of one month and it will be open to the respondent/decree holder to withdraw the same. The court below will consider the matter with opportunity to the parties. In case the appellant does not deposit the amount as aforesaid within one month, the appeal will stand dismissed. W.P.(C) 22976/09 : The impugned order is set aside and the W.P.(C) No.22976 of 2009 & R.F.A.No.52 of 2011 9 Family Court is directed to take up the interlocutory application filed and pass a fresh order, bearing in mind the principles governing the field of amendment. The Family Court will take a decision on the application for amendment, within a period of six weeks from the date of production of a copy of this judgment. We leave it open to the parties to make any supplementary pleadings also, in this regard. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs In compliance with the direction in the judgment dated 25.7.2011 in R.F.A.52/2011, the appellant's counsel has filed memo stating that an amount of Rs.5,61,000/- (Rupees five lakhs sixty one thousand only) was deposited at the Sub Treasury, Attingal, within the stipulated time, vide memo dated 14.10.2011 (c.f. 5371/2011) Sd/- Registrar (Judicial)