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2024 DIGILAW 1621 (KER)

Jyothy Anthraper v. Tomy Joseph

2024-12-09

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

body2024
JUDGMENT : Devan Ramachandran, J. In the fasciculus and maze of the large amount of pleadings and documents produced by the parties, it is, in fact, a small question projected for our consideration. 2. Essentially, the issue merely relates to whether objections to a counter claim ought to be allowed or not; but has realms, touching upon the statutory provisions involved and procedure adopted by the learned Family Court. 3. The petitioner calls into question Ext.P32 order of the learned Family Court, Ernakulam, through which, I.A.No.5/2024 in O.P.No.2740/2021, filed by the respondent herein, has been allowed; thus permitting him to file objections to a counter claim filed by her in the Original Petition. 4. The parties are involved in matrimonial disputes; and the Original Petition was filed by the respondent herein, seeking a decree of divorce, which was originally filed before the Principal Family Court at Bengaluru as M.C.No.1504/2020. Subsequently, on the application of the petitioner herein, the matter was transferred to the learned Family Court, Ernakulam; and renumbered as O.P.No.2740/2021. 5. While the proceedings were thus pending, it transpires that the petitioner filed objections in the Original Petition, accompanied by a counter claim; and filed I.A.No.2/2023 dated 05.07.2023, seeking the delay in filing the above be condoned and said counter claim be accepted to file. 6. Pertinently, the petitioner has produced Ext.P35 - extract of the B-Diary proceedings of the learned Family Court; and both sides are ad idem that it contains the true record of the proceedings before the said Court. 7. Going by Ext.P35 B-Diary proceedings, even though I.A.No.2/2023 was filed by the petitioner herein – as said above, seeking that her objections to the Original Petition, as also the counter claim, be accepted beyond time - there is nothing on record to show that there was any application to condone the delay. 8. Curiously, the learned Family Court, by its proceedings dated 26.09.2023 – which is more than two months after I.A.No.2/2023 had been filed - records that PW1 (the respondent herein) had been examined and that no objections are seen to have been filed by him to the counter claim filed by the petitioner herein. It then records unambiguously that, “so far the respondent has not submitted before the Court that there was a counter claim, adjourned to 30.09.2023” (sic). 9. It then records unambiguously that, “so far the respondent has not submitted before the Court that there was a counter claim, adjourned to 30.09.2023” (sic). 9. Before we proceed further, we must record that we had called for certain documents from the learned Trial Court in its original, as we will presently explain, one of them being I.A.No.2/2023. The endorsements on the said application shows that, even before an opportunity was given to the respondents herein to file objections, it was allowed on 26.09.2023, which is the date on which the learned Trial Court has recorded as afore, namely, that she had not submitted before it that there was a counter claim until that date. 10. It is also beyond dispute that the respondent herein, thereupon, filed I.A.No.4/2023, seeking permission to place on record objections to the counter claim; and that this was considered on 09.10.2023, when it was dismissed through order dated 09.10.2023 (produced as Ext.P26), finding that the said I.A did not contain the original signatures of the parties. 11. It is from this stage that the controversies in this case begin its life. 12. It is stated by the respondent that, on I.A.NO.4/2023 being dismissed in the afore fashion, he re-presented the very same application - verbatim in all attributes including the date - in its original, explaining that the earlier I.A.No.4/2023 was, in fact, e-filed and hence not containing the original signatures. 13. For some reason, which is unclear from even the records, the allegedly represented application was thereafter numbered as I.A.No.5/2024; and the parties are now in contest, as to when it was registered, and when it was allowed. 14. We, therefore, examined the originals of I.A.No.4/2023 and I.A.No.5/2024, which are available with us. 15. There is no doubt that I.A.No.4/2023 does not contain original signatures and that the learned Family Court dismissed it for that reason. 16. Coming to I.A.No.5/2024, as rightly argued by Sri.K.Meera - learned counsel for the respondent, it is exactly the same application which was I.A.No.4/2023, but with the original signatures; and the endorsements thereon indicate that it was presented on 30.09.2023, showing it have been done through the e-file portal, and re-presented on 11.10.2023. However, there is also another endorsement on it, that it was re-presented on 21.05.2024. However, there is also another endorsement on it, that it was re-presented on 21.05.2024. The further endorsements on the said application shows that, on 21.05.2024, the learned counsel for the respondent had reported that the defects were cured and the application re-presented; but on 22.05.2024, there is a noting by the learned Judge - showing it to be under defect - “not seen in the e-filing portal” (sic). This was answered to by the learned counsel for the respondent on 29.05.2024, to the effect “have e-file again on 22.05.2024. Receipt of e-filing on 04.10.2023 and 22.05.2024 also produced” (sic). 17. It is then recorded that I.A.No.5/2024 was heard on 03.06.2024 and thereafter adjourned to 10.06.2024, finally to have been allowed on 14.06.2024, with costs of Rs.2,500/-. 18. However, against the above order - which has been produced by the petitioner as Ext.P29 - O.P.(FC)No.433/2024 was filed before this Court, which was allowed by the judgment dated 30.08.2024; thus directing the learned Family Court to reconsider I.A.No.5/2024. 19. The learned Family Court did so; culminating in the impugned order, namely Ext.P32, which is now under challenge by the petitioner. 20. We had heard Dr.Abhilash – learned counsel for the petitioner; and Smt.K.Meera, extensively on two or three days prior to this day. Today, Sri.Renjith Marar – learned counsel, appeared along with Dr.Abhilash; and he commenced pleading that this Court offer an opportunity to the parties to settle their disputes with each other. However, Smt.K.Meera – learned counsel for the respondent, responded to this to the negative, saying that such opportunities had been granted by the learned Trial Court, but that the petitioner is sticking on to her huge claim of permanent alimony to a sum of Rs.8 crores. 21. It is thus obvious that an attempt from our side to bring the parties to settlement would be futile; and, in any event, unnecessary at this stage. 22. The only question relevant before us is whether the learned Trial Court was right in allowing the respondent to file objections to the counter claim of the petitioner. There is no other issue required to be considered by us at this stage. 23. The B-Diary proceedings, namely Ext.P35, of the learned Trial Court, indicate without doubt - as is admitted expressly – that, on 26.09.2023, PW1 was partly examined in chief. There is no other issue required to be considered by us at this stage. 23. The B-Diary proceedings, namely Ext.P35, of the learned Trial Court, indicate without doubt - as is admitted expressly – that, on 26.09.2023, PW1 was partly examined in chief. On that day, the learned Trial Court has recorded that the petitioner herein had not moved I.A.No.2/2023 for orders until then, nor was any submission made before it, that a counter claim had been filed. Normally, in such circumstances, the learned Trial Court ought to have given an opportunity to the respondent to file objections to I.A No.2/2023, but even though the B-Diary proceedings do not show so, the original of the said application, which is before us, shows that it was allowed on 26.09.2023; thus allowing the counter claim to be on record, condoning the admitted delay in having filed it. That, there was a delay in filing I.A.No.2/2023, is manifest because, the affidavit in support admits it without any equivocation. 24. Now, interestingly, the respondent filed I.A.No.4/2023, seeking that he be permitted to file his objections to the counter claim. This application is seen to have been presented on 30.09.2023, which is a mere four days after I.A.No.2/2023 - filed by the petitioner seeking permission to file the counter claim - had been allowed. In usual course, at that stage, such an application would not have been necessary and this Court is unable to fathom why I.A.No.4/2023 was presented. We assume that this could be because, when I.A.No.2/2023 was allowed with endorsement “heard, allowed”, though the learned Trial Court had a duty to fix a time frame within which objections had to be filed to it, it does not appear to have been done. 25. Nevertheless, I.A.No.4/2023 was dismissed through Ext.P26 order, solely for the reason that it did not contain the original signature of the party, as we have seen supra. 26. As indited above, the explanation of Smt.K.Meera – learned counsel for the respondent, is that I.A.NO.4/2023 was filed online, thus without it being capable of having the original signatures; and hence, that the learned Trial Court erred. She, however, conceded that her client did not challenge that order; but re-presented the very same petition, along with the very same affidavit with original signatures, which was then, inscrutably, renumbered as I.A.NO.5/2024 by the Registry of the Family Court. 27. She, however, conceded that her client did not challenge that order; but re-presented the very same petition, along with the very same affidavit with original signatures, which was then, inscrutably, renumbered as I.A.NO.5/2024 by the Registry of the Family Court. 27. It is perhaps because of this, that both I.A.No.4/2023 and I.A.NO.5/2024 contains the same date of presentation, namely 30.09.2023; but, in the case of the latter, subsequently, it is seen to have been re-presented on 21.05.2024. As we have recorded above in detail, it is this date on which the learned counsel for the respondent wrote on the application that defects were cured and re-presented; but the learned Trial Court then adjourned it to 06.06.2024, saying that it is not seen in the e-filing portal; and then to 10.06.2024; finally allowing it on 14.06.2024. 28. It is this order of the learned Family Court, which was challenged by the petitioner herein before this Court, which culminated in Ext.P30 judgment; and finding certain technical objections requiring reconsideration, it was set aside and the learned Family Court directed to reconsider the matter. 29. As matters now stand, the learned Family Court has allowed I.A.NO.5/2024, through Ext.P32 order. 30. It must be borne in mind that, though the petitioner appears to be projecting a legal controversy, it is the specific contention of the respondent that what she really is attempting is to have her counter claim, for a sum as large Rs.8 Crores, allowed without even an objection being permitted from the side of the respondent. 31. Sri.Renjith Marar, nevertheless, argued vehemently that, after I.A.NO.4/2023 had been dismissed through Exts.P26 order, it was impermissible for the learned Trial Court to have allowed I.A.NO.5/2023 because, they are verbatim applications, stated to have been filed on the same day, but evidently that the latter was only registered in the year 2024. His predication was that, when the said order remains, a subsequent order like Ext.P32 is impermissible. 32. We have analyzed the afore assertion on the touchstone of the rival submissions. 33. Pertinently, even though I.A.No.2/2023 had been filed by the petitioner, seeking that her objections to the Original Petition and the Counter Claim be registered; and though it seems to have been filed on 06.07.2023, she chose not to press the said application until 26.09.2023. 32. We have analyzed the afore assertion on the touchstone of the rival submissions. 33. Pertinently, even though I.A.No.2/2023 had been filed by the petitioner, seeking that her objections to the Original Petition and the Counter Claim be registered; and though it seems to have been filed on 06.07.2023, she chose not to press the said application until 26.09.2023. This is manifest from the record in the B-Diary of the said date: “so far the respondent has not submitted before the Court that there is a counter claim” (sic). As noticed by us ut supra, the B Diary proceedings do not show that I.A No.2/2023 had been allowed, but the original application contains such an endorsement on the said date. 34. Obviously, the time for filing an objection to the counter claim would arise only from 26.09.2023; and it is ineluctable that the respondent did file it, along with I.A.No.4/2023, which was presented on 30.09.2023. However, even on 26.09.2023, PW1 – wife had been partly examined in chief; and a question legitimately would arise, within the ambit of the declarations of the Hon’ble Supreme Court in Ashok Kumar Kalra v. Surendra Agnihotri [ 2019(4) KLT 790 (SC)], whether a counter claim could have been allowed to be registered after the Trial had commenced. 35. However, we propose not to answer this because, there is no contest by either of the side on that issue. 36. It is but evident that the Counter Claim was registered after the trial commenced, which goes contrary to Ashok Kumar Kalra (supra); and obviously, therefore, every other event subsequent ought to be viewed from that perspective. 37. As we have noticed above, even though I.A.No.2/2023 filed by the petitioner contains an averment that it was filed with delay, the affidavit in support does not specify whisperingly what was the amount of delay; and very interestingly, the learned Trial Court allowed it, without having given any opportunity to the respondent to file objections to it, thus registering the Counter Claim. Of course, when the respondent does not challenge these proceedings, it is not open for us to speak on it any further. 38. The respondent, thereupon, filed I.A.No.4/2023 containing the objections to the Counter Claim, which was subsequently dismissed, as has also been recorded by us earlier. 39. Now the crucial question is as to the nature, ambit and impact of I.A.No.5/2024. 40. 38. The respondent, thereupon, filed I.A.No.4/2023 containing the objections to the Counter Claim, which was subsequently dismissed, as has also been recorded by us earlier. 39. Now the crucial question is as to the nature, ambit and impact of I.A.No.5/2024. 40. The original of the application shows that it is exactly the same as I.A.No.4/2023; and that it was re-presented on 21.05.2024. 41. The time between 09.10.2023 - when I.A.No.4/2023 was dismissed through Ext.P26 order; and 21.05.2024 - when I.A.No.5/2024 can be taken to have been re-presented by the respondent, becomes crucial. 42. For this, we only have to see the BDiary proceedings, which, as we have said above, remains uncontested. 43. After 09.10.2023, the matter is seen to have been posted before the learned Family Court on 10.10.2023, when the petitioner is stated to have reported that the matter is stayed by this Court. Thereafter, it is seen listed to 13.10.2023, 17.10.2023, 14.11.2023, 15.11.2023, 18.11.2023, 03.01.2024 and 31.01.2024. On the last of the afore dates it is seen recorded that the Original Petition filed before this Court had been dismissed; and the matter was thereafter adjourned to 14.02.2024. On this date, the case was adjourned to be called along with a Miscellaneous Case between the parties; and the matter listed for trial on 19.03.2024. There was no sitting on 19.03.2024 and the matter was adjourned to 20.03.2024 and then to 21.03.2024, 03.04.2024, 04.04.2024. Vitally, it is shown that PW1 had been partly examined on each of those days, but it is not clear if she had been cross examined. There were three or four postings thereafter, about which, the B-Diary only mentions that the matter had been adjourned; and finally, on 18.05.2024, it is again recorded that PW1 was partly examined. Smt.K.Meera submits that till now, PW1 had only been examined in chief and not been cross examined. 44. Thereafter, on 03.06.2024, the respondent’s objection to the Counter Claim was noticed by the Court and was adjourned to 06.06.2024 for hearing; and then to 10.06.2024 and 14.06.2024, on the last of which dates, the application was initially allowed. It is thus evident that, during the afore said period, namely between 09.10.2023 and 21.05.2024, there was several postings and PW1 is also seen to have been partly examined on each of those days. It is thus evident that, during the afore said period, namely between 09.10.2023 and 21.05.2024, there was several postings and PW1 is also seen to have been partly examined on each of those days. The Cross Examination of the witness does not appear to have commenced; and, in the meanwhile, this Court intervened through Ext.P30 judgment, finally leading to the impugned Ext.P32 order being issued by the Trial Court. 45. It is thus apodictic that the Counter Claim was itself allowed to be registered after the examination in chief of PW1 had begun – this fact being admitted by Sri.Ranjith Marar and Dr.Abhilash; and that subsequently, there were several proceedings as explained above. There cannot be any latches attributed to the respondent in filing his objections to the Counter Claim because, concededly, I.A.No.4/2023 was preferred well within time. The only fault that can be laid against him is that he re-presented I.A.No.5/2024 - whatever be the explanation that his learned counsel may give us – only on 21.05.2024. 46. Without doubt, I.A.No.4/2023 - to accept objections to the Counter Claim - was rejected by the Trial Court solely for the reason that it did not contain the original signatures; but a question arises whether any such application was necessary at all, since the said claim was registered only on 26.09.2023. 47. Be that as it may, the registration of a Counter Claim and the objections to it is governed by the stipulations in Order VIII of the Code of Civil Procedure (CPC). As per Rule 1 of Order VIII of the CPC, the defendant is required to file a written statement within 30 days of the date of service of summons; but it is upto the Court to allow the same to be registered thereafter, but not beyond 120 days from the date of service of summons. 48. Turning to Rule 6 A, of Order VIII of the CPC, a defendant obtains right to file a Counter Claim, and certain specified time frames are also mentioned therein, which is either before or after the filing of the suit, but before the defendant has delivered his defence, or before the time limited for delivering his defence has expired. Sub Rule 3 of the said Rule, then provides that the plaintiff can file a written statement in answer to the Counter Claim, within such period as may be fixed by the Court. Sub Rule 3 of the said Rule, then provides that the plaintiff can file a written statement in answer to the Counter Claim, within such period as may be fixed by the Court. 49. In this case, unfortunately, the learned Court did not fix any time frame for the respondent herein to file his objections/written statement, in answer to the Counter Claim, even though I.A.No.2/2023 was allowed on 26.09.2023. However, this may not be relevant because, the respondent did file I.A.No.4/2023, along with his objections to the Counter Claim, but which was dismissed through Ext.P32 order. However, the dismissal was not on merits, but singularly for the reason that the objections did not contain the original signatures of the party. 50. Therefore, in our firm view, the learned Court had a duty to fix the further time frame within which objections were to be filed; and going by the time lines prescribed in Order VIII of the CPC, it could have been 120 days therefrom. For some reason, this procedure does not appear to have been complied with; and it is stated by the respondent that he filed I.A.No.5/2024 almost simultaneously to the rejection of I.A.No.4/2023, explaining that the first one was E-Filed; while the second was physically presented. 51. Whatever that be, the endorsement on I.A.No.4/2023 - with which we propose to proceed – show that the said application was “re-presented on 31.05.2024” (sic). 52. By this time, no doubt, the examination of PW1 had proceeded with in part on 21.03.2024, 03.04.2024, 04.04.2024 and 08.05.2024. The question before us is whether this, by itself, would be a ground to disallow objections to the Counter Claim, particularly when the latter itself was, admittedly, registered after the examination of commenced. 53. Every procedural requirement is intended to ensure that equity is preserved and parties are put to no unnecessary or avoidable prejudice. 54. Here is a case where the petitioner had filed her Counter Claim well beyond time, as admitted by her in I.A.No.2/2023; but which was allowed without even offering an opportunity to the respondent to file objections to the same. Moving on, it does not even indicate that it was allowed on the said day, but it is seen from the application that the Counter Claim was allowed to be registered on 26.09.2023 itself. 55. Moving on, it does not even indicate that it was allowed on the said day, but it is seen from the application that the Counter Claim was allowed to be registered on 26.09.2023 itself. 55. By denying the respondent to file objections, what would practically happen is that the Counter Claim as large as Rs.8 crores, would remain uncontested; and going by the ratio in the various judgments of the Hon’ble Supreme Court and that of this Court, which governs the field, even in the case of a written statement filed subsequent to the statutorily fixed time frames, certain amount of latitude is required to be offered and exhibited because, eventually, a case which is uncontested would stand to face lot of procedural processes thereafter, including at the appellate stage. 56. We cannot discern why the petitioner is so anxious that objections to the Counter Claim be not even registered, especially when the matter is hotly contested and the trial is continuing. When she admits that her Counter Claim was registered after her examination in chief had begun, we cannot find any valid reason why the objections to the Counter Claim be not allowed to be accepted; and this is rather inscrutable because, merely since such objections are accepted, it does not mean that they would be approved by the learned Trial Court. This will depend upon the trial and the evidence to be gathered by the parties; but the seeming attempt of the petitioner, to have her large Counter Claim allowed without objections, on the technical reason that the trial had commenced, when admitting fully that her Counter Claim itself was registered after she had been examined in part, would not stand to reason. 57. When the impugned order of the Family Court is assessed from such perspective, we notice that the learned Judge had dealt with the provisions of Order VIII of the CPC and has also recognized that the Counter Claim is one seeking permanent alimony of a large amount of Rs.8 Crores. It further records that, if the right of the respondent herein to raise a defence against the Counter Claim is denied, it would impede the proper disposal of the case. 58. It further records that, if the right of the respondent herein to raise a defence against the Counter Claim is denied, it would impede the proper disposal of the case. 58. Merely because no objection has been raised to the registration of the Counter Claim after the trial had commenced, it would not take away the impropriety of having done so, especially when it is admitted that I.A.No.2/2023 was not moved by the petitioner until she had been examined in part. 59. That being said, we do not see any good cause for the controversy because, in matters relating to matrimonial disputes, it is equity which is paramount, and not technicalities. If Ext.P32 is to be set aside by us, it would present a case where a Counter Claim as large as Rs.8 Crores is left without objections, this would surely lead to inequity and travesty. In the afore circumstances and for reasons above, we dismiss this petition and confirm Ext.P32; with a consequential direction to the learned Family Court to ensure that the Original Petition before it is disposed of at the earliest, adverting to the factum of it having been filed as early as in the year 2020, initially before the Family Court, Bengaluru. After we dictated this part of the judgment, Smt.K.Meera intervened to say that this Court has already passed an order in a connected Maintenance Case, that the Original Petition must be disposed of by the Family Court at the earliest, but not later than the end of March, 2025. Since this direction is stated to have been given by another learned Bench of this Court, we are certain that the learned Family Court will abide by it.