Valsala Siva Rajan vs K. Sivarajan

K.T. Sankaran, J.—Petitioner is the wife of the respondent. The respondent/husband filed O.P. No. 1341 of 2010 before the Family Court, Thiruvananthapuram against the petitioner/wife for a declaration and injunction. There are three schedules to the petition, namely, A, B and C. ''A'' schedule consists of seven items of properties. It is stated by the husband that those items of properties in the ''A'' schedule were acquired in the name of his wife using his funds; ''B'' schedule property stands in the joint names of the husband and wife and ''C'' schedule properties are the gold ornaments which are kept in the locker. The plaintiff/husband filed I.A. No. 1912 of 2011 for interim injunction. The defendant/wife filed a counter affidavit in I.A. No. 1912 of 2011. According to the plaintiff/husband, the Family Court passed an order on 4.10.2011 which was clarified on the same date stating that the petitioner''s (plaintiff/husband''s) right of enjoyment of plaint ''A'' and ''B'' schedule properties is not affected by the order. However, according to the defendant/wife, instead of mentioning as "counter petitioner", it was mentioned in the order as "petitioner". On 28.10.2011, the defendant/wife filed I.A. No. 3403 of 2011 u/s 152 of the CPC to correct the mistake in the order dated 4.10.2011. That application was dismissed by the Family Court as per the order dated 27.4.2012. Two reasons were stated for the dismissal of the application, namely, (1) The statement made by the defendant/wife that an order was passed in I.A. No. 1912 of 2011 on 4.10.2011 is not correct. The order was passed on 19.9.2011. (2) A copy of the order sought to be corrected was not produced by the defendant/wife.

The defendant/wife produced the copy of the order dated 4.10.2011 in this Original Petition (FC) as Ext. P5. That is the order of injunction served on the defendant/wife. The date of the order is shown as 4.10.2011 and an initial dated 7.10.2011 is also seen made therein by the Sheristadar. That means, the order was passed after 19.9.2011. The reasons stated by the court below do not appear to be correct in this regard. Even assuming that the order was passed on 19.9.2011, the application for correction should not have been dismissed only on the ground of a mistake in the date of the order. The finding of the court below that the order sought to be corrected should have been produced by the defendant/wife is also unsustainable. When the original order is before Court in the same file, it is not necessary for a party to produce a copy of the order to found a petition u/s 152 of the Code of Civil Procedure.

The learned counsel for the petitioner/wife submitted that a reading of paragraph 27 of I.A. No. 1912 of 2011 would indicate that the plaintiff/ husband agrees that the defendant/wife is in possession of the properties. If so, the correction sought to be made is liable to be allowed, submits the counsel. Since we have found that the reasons stated by the court below for dismissing the application are not correct, we set aside the order dated 27.4.2012 in I.A. No. 3403 of 2011 in O.P. No. 1341 of 2010. The court below shall pass fresh orders in I.A. No. 3403 of 2011 in O.P. No. 1341 of 2010, as expeditiously as possible and, at any rate, within a period of one month from the date of production of a copy of this judgment. The court below shall take note of the contentions put forward by both parties and pass a speaking order.

The Original Petition (FC) is allowed as indicated above.