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2009 DIGILAW 988 (KER)

Muhammed Davood v. Hafsath

2009-10-16

M.C.HARI RANI, R.BASANT

body2009
Judgment :- Basant, J. This appeal is directed against an order passed by the Family Court directing the appellants to pay a total amount of Rs.5,70,000- along with interest to the respondents hereinclaimants. Claimant No.1 is the divorced wife of the first appellant. Second appellant is the mother of the first appellant Second claimant is the father of the first claimant. 2. On fundamental facts, there is no dispute. The marriage took place on 26.08.1998. On the wife’s application, the marriage was dissolved by order dated 27.12.2004. The parties had commenced separate residence even earlier with effect from 10.08.2001. The O.P was filed before the Family Court, Manjeri on 31.01.2005. The Family Court, Manjeri was established in the year 2000. 3. Prior to the filing of the present O.P., a suit was filed by the claimants against the appellants herein praying for identical reliefs. That suit was filed on 01.11.2001. The suit was pending before the Subordinate Judge, Tirur for a long period of time. Ultimately, it was withdrawn on the application of the claimants after securing the requisite leave of the Court to institute a freshproceedings on the same cause of action. That order permitting withdrawal was passed on 6.10.2004. It is thereafter that O.P.No.585 was filed on 31.01.2005. 4. The prayer in the suit originally filed and in the present O.P. is for return of 62 sovereigns of gold ornaments and an amount of Rs.3.50 lakhs, which the claimants had allegedly handed over to the appellants in circumstances arising out of the matrimonial relationship of the spouses. It was alleged that out of the total quantity of about 100 sovereigns of gold ornaments handed over to the appellants in connection with the marriage of the first claimant with the first appellant, only about 38 sovereigns could be taken back, leaving behind 62 sovereigns with the first appellant. It was further alleged that during the currency of t he marriage, under circumstances arising out of the matrimonial relationship, a total amount of Rs. 3.50 lakhs was handed over by the claimants-wife and her father to the appellant to meet certain expenditure. It was a nongratuitous payment made and the appellants have the legal obligation to return the said amount of Rs.5.70 lakhs, it was contended. Rs.2.20 lakhs is claimed as the value of the gold ornaments and Rs.3.50 lakhs is claimed as the currency handed over. It was a nongratuitous payment made and the appellants have the legal obligation to return the said amount of Rs.5.70 lakhs, it was contended. Rs.2.20 lakhs is claimed as the value of the gold ornaments and Rs.3.50 lakhs is claimed as the currency handed over. Even after separate residence and even after the divorce, the amounts were not paid and this obliged the claimants to first go before the Civil Court and later after withdrawal of the said proceedings to approach the Family Court with the prayer for return. 5. Appellants entered appearance and resisted the claim. No ornaments were left behind by the first claimant when she returned to here parental home from the matrimonial home, it was contended. No money whatsoever was handed over by the claimants to the appellants, it was further contended. At any rate, the claim by the second claimant is not maintainable as the alleged dispute between him and the appellants about the return of the money does not fall within Section 7 of the Family Courts Act, it was contended. In any view of the matter, the second appellant cannot be mulcted with any liability to return the amounts, it was further contended. Plea of limitation as well as plea of misjoinder of causes of action were also raised. 6. Parties went to trial on these contentions. The claimants examined PWs 1 to 4. PW1 is the first claimant and PW2 is the second claimant. PW3 is a neighbour who had allegedly witnessed payment of money and PW4 is the jeweler who had allegedly made the ornaments for the marriage of the first claimant. The first appellant examined himself as RW1. Exhibits A1 to A5 were marked. Exhibit A1 is the notice of demand dated 11.09.2001 and Exhibit A2 is the reply thereto. Exhibit A3 is a statement/acknowledgment referred to as a receipt in the appendix given by PW4 about the list of ornaments that he had made in connection with the marriage of the first claimant. Exhibit A4 is a photograph taken (along with the negative) on the date of the wedding of the first claimant and that is pressed into service to broadly probabilise the assertion of the claimants that the bride had about 100 sovereigns of gold ornaments at the time of marriage. Exhibit A4 is a photograph taken (along with the negative) on the date of the wedding of the first claimant and that is pressed into service to broadly probabilise the assertion of the claimants that the bride had about 100 sovereigns of gold ornaments at the time of marriage. Exhibit A5 is the order passed by the Subordinate Judge, Tirur, granting permission for withdrawal of the suit with liberty to institute a fresh suit on the same cause of action. On the side of the appellants, they proved Exhibit B1, which is the statement on oath of PW4 when he was examined before the Subordinate Judge, Tirur in the suit referred above. The obvious attempt by production of Exhibit B1 is to discredit the evidence of PW4. 7. The learned Judge of the Family Court on an anxious consideration of the relevant inputs came to the conclusion that the claim is maintainable; it falls within the sweep of Section 7 (1) (d); that there is no bar of limitation and that the oral evidence of PWs 1to 3 can safely be preferred to the evidence of RW1. In coming to the conclusion, the court below drew inspiration from the oral evidence of PW4 as also Exhibits A1 to A4. The court felt that the oral evidence of RW1 cannot be accepted on broad probabilities and in the light of the evidence tendered on the side of the claimants. 8. Before us, the learned counsels have advanced their arguments. The learned counsel for the appellants assails the impugned order on the following grounds. (1) The court below erred grossly in coming to the conclusion that the claim is not barred by limitation. (2) The court below erred in coming to the conclusion that the nature of the dispute is one that falls within the sweep of Section 7 of the Family Courts Act. (3) The court below erred in choosing to accept and act upon the oral evidence of PWs 1to 3 in preference to that of RW1. (4) In any view of the matter, the court below ought to have taken the view that the second appellant is not in any way liable to suffer any decree. 9. Ground No.1. Separate residence of the spouses had started admittedly on 10.08.2001. The petition before the Family Court was filed on 31.01.2005. (4) In any view of the matter, the court below ought to have taken the view that the second appellant is not in any way liable to suffer any decree. 9. Ground No.1. Separate residence of the spouses had started admittedly on 10.08.2001. The petition before the Family Court was filed on 31.01.2005. The learned counsel for the appellants contends that under Article 113, the period of limitation would expire on 10-08-2004 and in these circumstances the claim is clearly barred by limitation. Counsel points out that Ext.A1 notice of demand was issued on 11-09-2001 and in any view of the matter the period of limitation must be held to expire on 11-09-2004. O.P. filed on 31-01-2005 is hence clearly barred by limitation. 10. The learned counsel for the appellants further contends that the mere fact that permission has been granted to the claimants by the civil court to withdraw the suit with liberty to institute a fresh suit will not by it self save the period of limitation and hence the fact that earlier proceedings were initiated before the civil court will not in any way help the claimants to save the claim from the bar of limitation. 11. The learned counsel for the respondents on the contrary contends that the period from 1.11.2001 to 6.10.2004 during which period proceedings were pending before the civil court is liable to be excluded under Section 14 of the Limitation Act. Section 14 of the Limitation Act reads as follows: “14. Exclusion of time of proceeding bona fide in Court without jurisdiction- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the code of Civil procedure, 1908, the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of like nature. Explanation-For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.” (emphasis supplied) 12. The short question to be decided is whether the plaintiff’s prosecution of the identical claim for return of money before the civil court can be held to be prosecution “with due diligence” in good faith as demanded by Section 14 of the Limitation Act. 13. The learned counsel for the claimants submits that the Family Court was established only in the year 2000 and the suit was filed before the civil court on 01.11.2001. Obviously, the claimants were not sure about the forum where the claim was to be preferred. During that twilight period after the enactment of the Family Courts Act, there definitely was ambiguity and uncertainty about the forum to be chosen, though such confusion arose out of ignorance about the forum in accordance with the new enactment. Obviously, the claimants were not sure about the forum where the claim was to be preferred. During that twilight period after the enactment of the Family Courts Act, there definitely was ambiguity and uncertainty about the forum to be chosen, though such confusion arose out of ignorance about the forum in accordance with the new enactment. That the decision of the claimants to go before the regular civil court with their claim was bona fide is eloquently declared by the fact that before the civil court, they were obliged to pay huge amounts by way of court fee and no person in his senses was likely to prosecute the suit before the regular civil court, if he did not bona fide think that the claim was maintainable only before that court and not the Family Court. We are in agreement with the learned counsel for the respondents/claimants and we feel it safe to conclude that the prosecution of the suit before the civil court was bona fide and without any oblique or mala fide motives. 14. A question still remains whether such prosecution can be held to be “with due diligence”. Evidently there was an erroneous assumption by the claimants either on their own or on the basis of incorrect legal advice received by him. It is evident that the claimants entertained the incorrect but bona fide impression that the suit is maintainable before the civil court. The learned counsel submits that the mere fact that an error has been committed bona fide by a litigant cannot deprive him of the benefit of Section 14 of the Limitation Act. An element of mistake is inherent in the invocation of Section 14. Erroneous prosecution can be there and the mere fact that, it is erroneous, cannot defeat the plea that the prosecution was with due diligence. Counsel relies on paragraphs 21 and 22 of the decision of the Supreme Court in Consolidated Engg. Enterprises V. Principal Secretary, Irrigation Dept, (2008)7 S.C.C,.169. We extract paragraphs 21 and 22 for easy and immediate reference. “21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service. We extract paragraphs 21 and 22 for easy and immediate reference. “21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service. (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court. 22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that n element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention o0f the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.” (emphasis supplied) 15. We are satisfied that all ingredients to at tract Section 14 of the Limitation Act as explained in paragraphs 21 and 22 of the decision extracted above are clearly there and the claim to exclude the period from 1.11.2001 to 6.10.2004 is absolutely justified. After excluding such period admittedly the petition is filed within time. The challenge on the ground of limitation must hence fail. 16. Of course, we note that the claimants have a further contention that the cash and ornaments were retained by the respondents in trust and, therefore, Section 10 of the Limitation Act must also apply. We are not going into that question in detail in the light of our finding on the acceptability of the plea for exclusion 0f the above period under Section 14 of the Limitation Act. 17. Ground No.2. The learned counsel for the appellants contends that the claim in the instant case cannot fall within the sweep of Section 7 of the Family Courts Act. It is trite that the Family Court can deal only with civil matters coming under Section 7(1) of the Family Courts Act read along with its explanation. According to the learned counsel for the appellants, the claim in the instant case can be split into two and to the claim for Rs.3,50,000/-which represents the money allegedly handed over by the second claimant/father-in-law to the first appellant-son-in-law, Section 7 explanation (a) to (g) can have no application and hence that part of the claim cannot definitely be adjudicated by the Family Court. The appellants deny the said cash transaction of Rs.3.5 lakhs but contend that if such a payment had been made by the second claimant to the first appellant as a non-gratuitous transaction, his remedy is only to go to the civil court and agitate the claim. The claim is not maintainable before the Family court, it is contended. 18. The learned counsel for the respondents on the contrary contends that the claim squarely falls under Section 7(1) explanation (d) of the Family Courts Act which we extract below: “(d) A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship” 19. The marriage was subsisting. The wife was residing along with her husband. At such juncture the husband had demanded an amount of Rs.3.5. lakhs to meet his needs. The wife had requested her father to oblige. Accordingly, payment was made by the claimants to the appellants. Suit or proceedings for an order on injunction in circumstances arising out of the marital relationship definitely falls within the jurisdiction of the Family Court under Explanation (d). Is the transaction alleged, one in circumstances arising out of a marital relationship or is it an independent noncommercial transaction between father-in-law and the son-in-law? This is the short question to be decided by us. 20. We have no hesitation to agree with the learned counsel for the respondents that the transaction arose in circumstances arising from the marital relationship between the parties. But for the marital relationship, the appellants would not have demanded and the claimants would not have handed over the amount. The second respondent was obviously making the payment in the interest of promoting, maintaining and nurturing the marital relationship between the spouses. The question in a situation like this is not who handed over the money. It would be puerile and hyper technical to take the view that if the wife handed over the money after taking it from her father, it would fall under Explanation (d) but, if the father-in-law directly handed over the same it would not. But it is very evident that the second claimant had handed over the money at the request of and on behalf of the first claimant to maintain and preserve (and in the interests of) the marital relationship between the spouses. But it is very evident that the second claimant had handed over the money at the request of and on behalf of the first claimant to maintain and preserve (and in the interests of) the marital relationship between the spouses. Nay, splitting of the pleadings and evidence to contend that the amount was paid by the second claimant to the first appellant, even going by the version of the claimants and that consequently the claim is beyond the jurisdiction of the Family Court under Section 7(1)(d) of the Family courts Act cannot obviously be accepted. The court below, according to us, was absolutely justified in taking a liberal view on the question as to whether the claim would fall within the jurisdiction of the Family Court under Section 7(1) (d). The fact that “decree” is not specifically referred to in Section 7(1) (d) cannot in any way detract against the jurisdiction of the Family Court. A suit is taken in by the specific language of section 7(1) (d) and in these circumstances the fact that a decree is not specifically referred to and the reference in section 7(1) (d) is to a suit or proceedings “for an order or injunction” cannot in any way affect the contention of the respondents that the claim falls within the jurisdiction of the Family Court under Section 7 (1) (d). The invitation to read the expression “for an order or injunction” in Section 7(1)(d) as an “order of injunction” is not justified by the semantics employed as also the broad legislative purpose and mission. The challenge raised on ground No.2 does also in these circumstances fail. 21. Ground Nos. 3 and 4: For the sake of convenience, we shall deal with the challenge on these grounds together. The transaction was between the spouses. A court unless it is naïve and hyper technical should not in circumstances like this look for or insist on documentary evidence to prove the transaction. Section 3 of the Evidence Act which must be reckoned as the bible of a court of facts demands, that courts adopt the standards of a prudent person informed of all the realities of raw life. Section 3 of the Evidence Act which must be reckoned as the bible of a court of facts demands, that courts adopt the standards of a prudent person informed of all the realities of raw life. Such a prudent person would be an unworthy specimen of a prudent person, if he were to expect or insist on documentary proof to show the amount and ornaments handed over to the bride at the time of marriage or amount and ornaments that she carried when she retuned home. That would be an artificial and irrational approach. Similarly when the marital tie is subsisting and the spouses are living together happily a request by the son-in-law to the father-in-law through the bride for money to meet his needs cannot also be expected to be in writing supported by documents. A prudent person cannot expect that there will be documents to prove such payment made by the father-in-law to his daughter/son-in-law. We are only looking at the broad probabilities and how artificial, irrational and improbable, it would be for any one in the given circumstances to look for documentary evidence to prove the claim of the claimants. The learned counsel for the appellants immediately cautions us, and we are cautious of the dangers involved-of the possibility of the claimants making exaggerated claims and such testimony being meekly accepted. When the parties have fallen apart and the matrimony is in doldrums, vexatious, false and vindictive assertions are possible and probable. We are conscious of that possibility and a reading of the impugned order clearly shows that the court below was aware and cautious of the possible pit falls while attempting to appreciate the evidence in a situation like this. There was the interested evidence of PWs.1 and 2, claimants as against the interested evidence of the first appellant as RW1. They made assertions in support of their respective cases. The court below was obliged to choose between these two sets of evidence and come to appropriate conclusions. The court could not obviously have thrown its hands up and non-suit the claimants on the ground that they have not produced better evidence which in the nature of the transaction was unlikely to exist. The court below had to and did anxiously appreciate the oral evidence of the rival contestants to come to appropriate conclusions. 22. On the question of ornaments of the bride, Ext. The court below had to and did anxiously appreciate the oral evidence of the rival contestants to come to appropriate conclusions. 22. On the question of ornaments of the bride, Ext. A4 reveals that she had ornaments in abundance. It is of course not possible to look at the photographs and ascertain the precise quantum of ornaments. But the oral evidence of PWs.1 and 2 get support broadly from such a document like Ext. A4. The oral evidence of disinterested PW3 whose evidence is not seriously shaken in cross examination was also made use of by the court below to support and corroborate the interested oral evidence of PWs.1 and 2. Receipt, Ext. A3 and the oral evidence of PW4 were also reckoned by the court below as affording broad support to the oral evidence of PWs. 1 and 2 notwithstanding the innocuous and incongruity between Ext. B1 and the evidence of PW4 on oath before the Family court. The court attached particular significance to the fact that Ext. A1 notice of claim was issued immediately after the relationship was strained and such prompt claim while the marriage was still subsisting, the learned Judge noted broadly supports the oral evidence of PWs. 1. and 2. The court below further took note of the admitted circumstance that the appellants had invested amounts to start a service station at about the time when the alleged transaction took place. The court below further took note of the inherent improbabilities of the version of the appellants. It is after anxiously adverting to all these aspects that the Family Court came to the conclusion that oral evidence on the side of the claimants supported broadly by circumstances and documents can be safely accepted. 23. We must say that we do not find any improbability or perversity in the approach made by the court below. The conclusion of the court below does appear to us to be cogent, reasonable, fair and just. 24. We must also alertly remind ourselves of the evident advantage that the trial court has in the matter of appreciation of evidence. An alert trial Judge is abler to gather many a relevant input when parties/witnesses perform in the witness stand before them. 24. We must also alertly remind ourselves of the evident advantage that the trial court has in the matter of appreciation of evidence. An alert trial Judge is abler to gather many a relevant input when parties/witnesses perform in the witness stand before them. This evident advantage/input which is available to the trial court in the matter of appreciation of evidence and in choosing which witnesses are to be believed and which testimony is to be preferred cannot be ignored or forgotten by an appellate court. In short, except for compelling and satisfactory reasons, we as an appellate court cannot be persuaded to interfere with such discretions. 25. Having considered all the relevant circumstances, we are certainly of the opinion that the court below committed no error in choosing to accept and act upon the oral and documentary evidence tendered by the claimants in preference to that tendered by the appellants to come to a conclusion that 62 sovereigns of gold ornaments and Rs.3.5 lakhs had been handed over by the claimants to the appellants and appellants are liable to return the same. 26. A contention was raised that the second appellant, mother-in-law is not at any rate liable. The evidence shows otherwise. We have also indications to show that the investment in the service station building etc. was made in the name of the second appellant. It was admitted that the service station stood in the name of the second appellant, though electric connection to the same stood in the name of the first appellant. In the facts and circumstances of the case, we do not find any reason to interfere with the conclusion of the court below that the second appellant can also be mulcted with the liability to return the articles and amounts. The challenge raised on grounds 3 and 4 must also these circumstances fail. 27. No other contentions are raised. We are satisfied, in these circumstances, that the impugned order deserves to be upheld and this appeal deserves to be dismissed. 28. In the result: a) this appeal is dismissed. b) The impugned order is upheld; c) The appellants are directed to pay the cost of the respondents in this appeal.