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2025 DIGILAW 1841 (KER)

Anitta Merin Markose D/o Markose v. Boney Varghese S/o Gee Varghese

2025-07-04

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

body2025
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The petitioner challenges Ext.P8 order of the learned Family Court, Kattappana, through which it allowed I.A.No.8/2025 in O.P.(RM) 84/2023. 2. The Original Petition above mentioned was filed by the petitioner seeking return of her patrimony from the respondents and the latter filed a written statement. 3. The Original Petition, admittedly, then went to trial, with both sides adducing evidence, which was thereafter closed. However, subsequent to the closure of evidence, the respondents filed I.A.No.8/2025, seeking leave of the Court – under Order VIII Rule 9 of the Code of Civil Procedure (CPC) - to file an ‘additional written statement’; saying that there were inadvertent omissions in the original written statement in denying some of the assertions made by the petitioner in the Original Petition. 4. This application was opposed vehemently by the petitioner, contending that the provisions of Order VIII Rule 9 of the CPC cannot apply, since the evidence in the matter has been closed, after the examination of witnesses; and hence that any further latitude would prejudice her irreparably, the attempt of the respondents being to take away benefits that has accrued to her from the concessions, undertakings and admissions contained in the deposition of the witnesses. 5. The learned Family Court, however, allowed the interim application, finding that the petitioner would be put to no prejudice because, she can file a ‘rejoinder’ and thus rebut all the assertions to be made by the respondents in their ‘additional written statement’. 6. The petitioner challenges Ext.P8 on various grounds. 7. Sri.Liji J Vadakkedom – learned counsel for the petitioner, argued that the learned Family Court has misdirected itself in fathoming the ambit of Order VIII Rule 9 of the CPC, particularly when the trial in this case is admittedly over. He argued that, when his client has already obtained benefit of certain uncontroverted facts, as also admissions/concessions available in the oral evidence of RW1, the attempt by the respondents to cover up and fill up such, through an ‘additional written statement’, is malafide, impermissible and untenable. He argued that, if an additional written statement is to be allowed in such manner, it would be without purpose, since the evidence in the matter has already been closed. 8. He argued that, if an additional written statement is to be allowed in such manner, it would be without purpose, since the evidence in the matter has already been closed. 8. However, in response, Sri.Jomy K. Jose – learned counsel for the respondents, submitted that the learned Family Court has acted well within the parameters of Order VIII Rule 9 of the CPC, by granting leave to his clients to file an additional written statement. He expressly conceded that there were certain omissions – which he described to be ‘clerical’ in nature – in the original written statement filed by his clients; and that, on account of such, there came to be admissions, which were not intended. He explained that, it is for such reason that his clients moved I.A.No.8/2025 seeking leave to file an additional written statement; and that its allowing by the learned Family Court causes no prejudice to the petitioner because she can always file a ‘rejoinder’, as has been permitted in the order impugned. He, however, had no answer to our specific question as to what will be now done by the learned Family Court once the additional written statement or the ‘rejoinder’ is on record, the trial being concededly over. He nevertheless said that his client proposes, after the additional written statement is filed, to reopen evidence; and asserted that this would have to be allowed in law – but admitting that no step for such has been initiated. He concluded, predicating that the learned Family Court has the statutory discretion, under Order VIII Rule 9 of the CPC, to allow additional pleadings to be brought on record at any point of time to ‘meet the ends of justice’; and that this cannot be challenged by the petitioner, as she has done in this Original Petition. 9. We have examined the impugned order, evaluating it on the edifice of the rival submissions and the materials available. 10. We notice that the learned Family Court has granted leave to the respondents to file their additional written statement, by allowing I.A.No.8/2025, on the mentation that this would cause no prejudice to the petitioner. 9. We have examined the impugned order, evaluating it on the edifice of the rival submissions and the materials available. 10. We notice that the learned Family Court has granted leave to the respondents to file their additional written statement, by allowing I.A.No.8/2025, on the mentation that this would cause no prejudice to the petitioner. The reasoning adopted by the learned Family Court in holding so is that, even if an additional written statement is accepted on record, the petitioner can file a ‘rejoinder’; but fail to understand on what provision of law was such liberty found available to the said party. 11. That apart, even though Order VIII Rule 9 of the CPC vests discretion with the learned Family Court to allow additional written statement/pleadings to be filed at any point of time, such ought to be exercised judicially and for reasons that are cogent and germane. What we see in the impugned order is that the learned Court has allowed the application in question merely saying that there would be no prejudice to the petitioner, but without, in any manner, substantiating it. 12. One fails to comprehend how the learned Court can hold there is no prejudice when, admittedly, the evidence is over and the witnesses for the parties have already deposed under oath, underpinned on the available pleadings. As rightly argued by Sri.Liji J. Vadakkedom, the petitioner is surely entitled to use all admissions/concessions/non traverse, either in the pleadings of the respondents or in deposition of the witnesses; and this cannot be denied to her at the whim of the respondents, by seeking to file an additional written statement to answer such – which, again as rightly asserted by Sri.Liji J. Vadakkedom, would be of no purpose unless the Court indicates that its intention is to reopen evidence, which it does not have the jurisdiction to do, unless applied for by the parties. There is nothing on record to even indicate peripherally that I.A.No.8/2025 was accompanied by an application to reopen evidence; and in that sense, it is baffling for this Court to see that the learned Family Court has allowed the application, merely saying there is no prejudice to the petitioner. 13. There is nothing on record to even indicate peripherally that I.A.No.8/2025 was accompanied by an application to reopen evidence; and in that sense, it is baffling for this Court to see that the learned Family Court has allowed the application, merely saying there is no prejudice to the petitioner. 13. We surely find to the contrary; and, in any event, the purported absence of prejudice, on the assumption that the petitioner has the right to file ‘rejoinder’, is without any legal basis because, for one, there is no legal provision brought to our notice enabling such pleading; and for the second, even if such is available, nothing would come out of it, unless the parties are to lead evidence again. We do not find any of these aspects to have been considered by the learned Family Court in its proper perspective; and hence are afraid that we cannot find favour with the impugned order. 14. We would have perhaps found to the contrary, had the learned Family Court discussed in what manner the additional written statement would impact the case, but it has not assessed such either, nevertheless allowing the application in question, even after evidence had been admittedly closed. In the afore circumstances, we allow this Original Petition and set aside Ext.P8 order of the learned Family Court, Kattappana.