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2005 DIGILAW 78 (KER)

Ammukutty Varghese v. Kochu Mathai

2005-02-03

J.B.KOSHY, K.P.BALACHANDRAN

body2005
Judgment :- Balachandran, J. 1. This appeal is by the petitioner/wife and the respondent is her husband who was the respondent in the Original Petition. She challenges in this appeal the dismissal of O.P. 847 of 1998 filed by her for a decree for return of gold ornaments or its value and for realization of money. The dismissal vide judgment dated 20.11.1994 was consequent on finding entered on the preliminary point of maintainability. 2. The brief facts necessary for appreciation of the case can be stated as follows:- The appellant and the respondent got married on 8.2.1971 and their marital tie still subsists. All the same they have fell out and are having separate residence from 26.5.1990 onwards as averred in the Original Petition. The appellant filed O.S.101 of 1993 against the respondent for partition and rendition of accounts. A preliminary decree was passed in the above case on 6.2.1996 on the following lines:- “In the result, the suit is decreed on the following terms. The plaintiff is allowed to partition half share over the plaint schedule property and to get her share separated. For dividing property, the plaintiff may apply for commission. The mode of partition will be decided in the final decree proceedings. The prayer for rendition of accounts is disallowed. Till the B schedule property is divided by meters and bounds, the 1st defendant is restrained by a decree of permanent injunction from interfering with the plaintiff’s right and possession and residence in the building in the B schedule property. The 3rd defendant is directed by a decree of mandatory injunction to pay half of the periodical interest accrued from January 1991 onwards to the plaintiff. In the circumstances of this case, parties are directed to suffer their costs”. 3. While the proceedings for passing of a final decree was in progress in O.S.101 of 1993 on the application of the appellant vide I.A.813 of 1996, she filed an application for setting aside the preliminary decree and reopening the evidence in the case. The Family Court vide order dated 8.8.2000 rejected the application stating as follows:- “Preliminary decree has already been passed. It stands unchallenged. Therefore there is no scope for reopening evidence and reagitating the matter before the court as far as preliminary decree is concerned. Therefore prayer for reopening evidence and setting aside the preliminary decree is disallowed”. 4. The Family Court vide order dated 8.8.2000 rejected the application stating as follows:- “Preliminary decree has already been passed. It stands unchallenged. Therefore there is no scope for reopening evidence and reagitating the matter before the court as far as preliminary decree is concerned. Therefore prayer for reopening evidence and setting aside the preliminary decree is disallowed”. 4. Aggrieved by the said rejection, the appellant filed M.F.A. 950 of 2000 before this court. A Division Bench of this court vide order dated 23.11.2000 disposed of the said application observing as follows:- “Considering the nature of the contentions of the parties and also considering the facts and circumstances of the case it is only just and proper that an opportunity be given to the appellant to file an application for framing a second preliminary decree, in the event of which the same would be considered by the Family Court after hearing both the parties”. 5. It is submitted that application for passing of a second preliminary decree filed in O.S.101 of 1993 was disposed of directing that the monetary claims will be adjudicated in O.P.847 of 1998 and O.S.220 of 1994 which were pending before the Family Court then and final decree was passed in O.S.101 of 1993 on 14.8.2003 and that is also stated in clause 5 of the final decree thus:- “5. The monetary claims of the parties shall be separately adjudicated in O.P.847/98 and 220/94 pending before this court”. 6. It is thereafter that O.P.847 of 1998 is dismissed vide order impugned in this appeal holding that it is not maintainable. 7. Appellant and respondent fell out and were residing separated with effect from 26.5.1990. In 1993 was the suit for partition and rendition of accounts filed as O.S.101 of 1993 and a decree passed therein as stated above while the present Original Petition was pending before the Family Court. The Original Petition was dismissed by the court below holding that it is not maintainable on two counts and they are:- (1) that the suit is barred by Order II Rue 2 C.P.C., (2) that the claim is barred by limitation. 8. The Original Petition was dismissed by the court below holding that it is not maintainable on two counts and they are:- (1) that the suit is barred by Order II Rue 2 C.P.C., (2) that the claim is barred by limitation. 8. According to the counsel for the appellant the suit should not have been held to be not maintainable for the aforesaid reasons as the respondents stood estopped from raising the above contentions as it was their own contention that was upheld by the court in clause 5 of the final decree in O.S.101 of 1993 that monetary claims of the parties shall be separately adjudicated in O.P.847 of 1998 and 220 of 1994. The process of adjudication takes in consideration of all contentions advanced and the respondent cannot be estopped on that ground from raising the legal defences available to him in the suit. 9. Though the appellant and respondent were residing separated with effect from 26.5.1990 and the appellant filed O.S.101 of 1993 for partition and for rendition of accounts in 1993, she had omitted to advance monetary claims advanced in this original petition without obtaining leave of court. Order II Rule 2 of the Code of Civil Procedure is extracted below for easy reference:- “2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action” 10. Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action” 10. In the instant case the appellant has omitted without leave of court being obtained to sue for the recovery of claims advanced in this Original Petition and hence as rightly found by the court below the claim is barred under Order 2 Rule 2 C.P.C. which is made applicable to proceedings before Family Court by Section 10(1) of the Family Courts Act. 11. Counsel for the appellant has relying on the decision of this court in Swapna v. Thankavelu (1990 (2) K.L.T. 604) contended that the claim in the Original Petition being claimed by wife against husband for realization of her gold ornaments of 60 sovereigns or its value Rs.1,95,000/- as also another sum of Rs.10,40,000/- which is held by her husband in trust, there is no bar of limitation by reason of Section 10 of the Limitation Act. The decision relied on has no application as Section 10 has no application on the facts of this case as the parties who are wife and husband fell out and were having separate residence ever after 26.5.1990. It cannot be said that the element of trust between wife and husband exists even after such separation and institution of suit for partition and for rendition of accounts in 1993 which by itself manifested the intention of the wife to work out her remedies and to have accounts settled with her husband. The element of trust having thus manifested to have ceased to exist between the separated spouses, the right to sue had accrued and it is in the suit so instituted that part of the claim has been omitted to be included. It cannot be said that the cause of action for the suit had not arisen then. The Original Petition filed after three years of thus accruing of the right to sue is barred under Article 113 of the Limitation Act. 12. Thus the suit is not maintainable for both the reasons contended as rightly held by the court below. This appeal is hence devoid of merit.We therefore dismiss this appeal. No order as to costs.