Deepa vs Achuthan Pillai

Preeta A.K., J.

The appellant herein was the petitioner in O.P.No.1068 of 2019 on the files of Family Court, Nedumangad. The brief facts leading to the filing of the Mat.Appeal are as follows :

The appellant filed the petition inter alia seeking a declaration that the appellant is the daughter of the respondent and had sought consequential reliefs including share in the property of the respondent. The petition was resisted by the respondent denying the paternity claim of the appellant and contending that the original petition was barred by res judicata for the reason that the appellant and her mother had earlier filed O.P.No.1251 of 2017 inter alia seeking declaration of marital status of the appellant's mother and their share over petition schedule property owned by the respondent and that the said petition had culminated in a dismissal.

The Family Court after meticulous examination of the materials on record, declared the appellant as the daughter of the respondent and held that the suit was not hit by principles of res judicata.

However, the appellant has chosen to file this appeal contending that the Family Court erred in limiting the relief to a declaration of paternity, by finding the incidental prayers regarding share in the property of the respondent and the injunction against alienation, has been held to be relinquished.

Heard the learned counsel for the appellant.

The learned counsel for the appellant relying on Annexure A1, has contended that the finding in paragraph 8 of the judgment, is unsustainable as the same could not have been done through a memo and in so far as the procedure as prescribed under Order XXIII Rule 1 of CPC has not been resorted to, the same ought not to have been acted upon by the Family Court. The learned counsel therefore prays that the matter be remitted back to the Family Court for fresh consideration for considering the reliefs B, C & D dehors the relinquishment memo.

Annexure A1 is a memo filed by the appellant herself stating that the prayers except A & E in the original petition are withdrawn. A perusal of the same shows that the memo has been signed by the appellant and the signature of the advocate below the signature of the appellant is in attestation of the same. On a pointed question by this Court to the learned counsel for the appellant as to whether the signature of the appellant in Annexure A1 is admitted, he admits the signature and adds that blank signed papers entrusted to the counsel for the appellant had been misused.

Memos serve as formal requests or clarifications related to the proceedings. Memos are versatile procedural tools in civil litigation. They are used to facilitate court actions such as summoning witnesses or documents, seeking amendments, or requesting reviews. Their acceptance hinges on adherence to procedural rules and court discretion. Therefore, the appellant cannot be heard to challenge the veracity of the “memo” which has been accepted and acted upon by the Family Court, especially in the light of the fact that no action whatsoever has been taken disputing the filing of the memo before the Family Court.

The learned counsel for the appellant has also contended that the Family Court erred in not insisting for the procedure contemplated under Order XXIII Rule 1 of CPC for relinquishing the prayers except A and E. Order XXIII Rule 1 of CPC reads as follows :

A perusal of the text of Order XXIII Rule 1 makes it apparent that the same is only an enabling provision to abandon the suit or part of any claim. Only in cases covered by proviso to Order XXIII Rule 1, does the law insist for filing of an application for leave of the Court which is to be accompanied by an affidavit. Therefore, in as much as the provision does not insist for filing of an application or affidavit or seeking the leave of the Court, the Family Court cannot be found fault with, for accepting and acting on the memo filed by the appellant. Jurisprudentially speaking, the ultimate result of filing a memo or a petition for withdrawing or relinquishing the claims, is one and the same. A procedural law should not ordinarily be construed as mandatory; the procedural law is always subservient to and is in aid to justice. In Rani Kusum v. Kanchan Devi, (2005) 6 SCC 705, the Apex Court has categorically held :

We therefore find no illegality or perversity in the judgment of the Family Court restricting its enquiry only in respect of reliefs A and E in the original petition.

In the result, the Mat. Appeal fails and is dismissed. All interlocutory applications, if any pending, shall stand closed.

Annexure A1 PHOTOSTAT COPY OF THE MEMO DATED 28.12.2024 ALLEGEDLY FILED BY THE APPELLANT ALONG WITH TRUE ENGLISH TRANSLATION

Annexure A2 ORIGINAL AFFIDAVIT SWORN BY THE APPELLANT DATED 9.3.2026