K.R. SUGATHAN Vs. JYOTHI

JUDGEMENT

(1.) The petitioner herein has filed O.P.No.83/2011 before the Family Court, Thiruvalla, for a declaration that he is entitled to get 'A' Scheduled property, reconveyed and half share in 'B' Scheduled property and for realisation of an amount of Rs.15,00,000/- towards the amounts expended by him for the construction of the building, from the respondent herein (wife). Bereft of all the unnecessary details, the gist of the matter as far as it is relevant for the present controversy raised before us is as follows:

(2.) The petitioner has filed application under Section 151 of the Code of Civil Procedure praying for leave of the court to withdraw the suit to appropriately institute another suit before the court below. The court below considered the said application (Ext.P3) filed under Section 151 CPC and Order XXIII Rule 3 of the Code of Civil Procedure and opined that the question to be decided is as to whether there is any formal defect in the framing of the case enabling the petitioner to withdraw the same with liberty to file a fresh Original Petition.

(3.) The court below found in the impugned Ext.P4 order that as to what exactly is the formal defect of the suit/O.P. is not stated in the affidavit filed in support of Ext.P3 herein. The court below held that failure or omission to schedule a property in the case or necessary pleadings in that regard is not a formal defect, which comes within the ambit of Order XXIII Rule 1(3) and that failure or omission to schedule a property in the case as projected by the petitioner in Ext.P3 herein can be incorporated by way of resort to amendment of the pleadings as envisaged under Order VI Rule 7 of the Code of Civil Procedure. The court below also noted that this is a case of the year 2011, which had been pending since then. The court below held that there is no formal defect in the framing of the suit and that the plea or omission to schedule a property as set out in Ext.P3 application is a matter, which should be at best left to resort of remedy for amendment of the pleadings. Accordingly, the court below dismissed Ext.P3 application as per impugned Ext.P4 order rendered on 22.6.2013 in I.A.No.2585/2012 in O.P.No.83/2011. It is this order, viz., Ext 4, that is under challenge before us. The prayer of the petitioner is to set aside the impugned Ext.P4 order and to allow Ext.P3 application.