Kerala High Court · 2012

R1 BY ADV. SRI.M.V.THAMBAN BY ADV. SMT.THARA THAMBAN BY ADV. SRI.B.BIPIN BY ADV. SRI.R.REJI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 31-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.756/2012 IN FAO.NO.347/2012 ----------- DISMISSED 31/7/2012 Sd/- HARUN-UL-RASHID, JUDGE. True Copy P.S. TO JUDGE HARUN-UL-RASHID,J. ----------------------------- F.A.O.NO.347 OF 2011 ----------------------------- DATED THIS THE 31ST DAY OF JULY, 2012 JUDGMENT The 2nd plaintiff and additional 3rd plaintiff in O.S.No.446/2000 on the file of the Munsiff's Court, Kayamkulam are the appellants. The appeal is directed against the remand order dated 28/7/2011 in A.S.No.25/2006 on the file of the Additional District Judge Fast Track (Ahoc) Court, Mavelikara. The lst plaintiff died during the pending of the suit. Plaintiffs 1 and 2 are father and mother of deceased Udayabhanu. He died on 8/12/1995 while in the service of GREF. The lst defendant was the wife of deceased Udayabhanu. It is the plaintiffs' case that the lst defendant remarried the 2nd defendant on 20/3/2000 and therefore, the lst defendant is not entitled to receive family pension of the deceased son of the plaintiffs 1 and 2 from the date of marriage. The trial court decreed the suit. The lst defendant filed A.S.No.25/2006 against the decree and judgment in O.S.No.446/2000. The Lower Appellate Court held that an additional F.A.O.No.347/2011 -2- issue whether the lst appellant/lst defendant remarried the 2nd defendant has to be raised and fresh evidence has to be taken on that issue. For that reason the Appellate Court remanded the case for framing additional issue and for fresh trial and disposal. Aggrieved by the order of remand, the 2nd plaintiff and additional 3rd plaintiff have preferred this appeal. The parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit.

2. The suit was filed for a declaration that the plaintiff alone are the legal heirs of the deceased Udayabhanu, that the defendants are husband and wife thereby the lst defendant is not the legal heir of the deceased Udayabhanu thereby not entitled to receive the family benefit of deceased Udayabhanu. The lst defendant, after the death of her husband Udayabhanu, remarried the 2nd defendant and started living together as husband and wife. Therefore, the suit was filed claiming that the parents of deceased Udayabhanu, who are the plaintiffs, alone are entitled to inherit the family pension of deceased Udayabhanu. The plaintiffs also sought permanent prohibitory injunction restraining the lst F.A.O.No.347/2011 -3- defendant not to receive the family pension of deceased Udyabhanu. The trial court framed three issues, which are as follows: “i) Whether the plaintiffs are entitled to get a declaration as prayed for? ii) Whether the plaintiff are entitled to get a decree for permanent prohibitory injunction? iii) Reliefs and costs?”

3. On the side of the plaintiffs Pws.1 to 5 were examined and Exts.A1 to A3 were marked. Defendants did not adduce any oral evidence. Exts.B1 and B2 were marked on their side. The only question to be decided in the suit is as to whether the plaintiffs or the lst defendant are entitled to receive family pension of deceased Udayabhanu. The primary issue relevant for consideration is whether the lst defendant has got remarried after the death of deceased Udayabhanu. The trial court appreciated the evidence on record. The evidence includes the oral evidence of Pws.1 to 5, Ext.A1 marriage invitation card, Ext.A2 certificate issued by the Ebenezer Hospital and Ext.A3 birth certificate issued F.A.O.No.347/2011 -4- by the Municipal Office, Kayamkulam. Ext.A1 is the marriage invitation card of defendants 1 and 2 which shows that their marriage was solemnized on 20/3/2000. The 2nd plaintiff as PW1 in her chief examination deposed that Ext.A1 is the marriage invitation card of defendants 1 and 2. The trial court noticed that the said statement was not challenged in the cross-examination. Ext.A2 is the certificate issued by the Ebenezer Hospital, Kayamkulam regarding the birth of a child and Ext.A3 is the certificate issued by the Municipal Office, Kayamkulam. Exts.A2 and A3 certificates were issued by the authorities certifying the birth of the child to defendants 1 and 2. On an evaluation of the evidence on record the trial court noticed the fact that Exts.A2 and A3 certificates were not disputed in the cross-examination of Pws.1 and 2. Ext.A2 certificate shows that the lst defendant delivered a female baby in the hospital on 22/2/2001. The trial court also observed that the defendants did not appear before the court not subjected for cross-examination to ascertain the truth of the contention and claim put forward in the plaint. The trial court F.A.O.No.347/2011 -5- rightly noticed that the suit is based on the relationship of defendants 1 and 2 and therefore the oral evidence of defendants 1 and 2 is very material to decide the dispute in the suit. But they abstained from mounting the box. After appreciating the evidence on record both oral and documentary, the court came to the conclusion that the plaintiff is entitled to declaration and injunction as sought for. It is declared that defendants 1 and 2 are man and wife and that the lst defendant is not a legal heir of deceased Udayabhanu.

4. The Lower Appellate Court, after considering the matter on merits, remanded the case for the reason that an additional issue as to whether the 2nd defendant remarried the lst defendant has to be raised and therefore evidence has to be taken on that issue. For the said reason the Appellate Court set aside the judgment and decree passed by the trial court and remanded the case.

5. The plaintiffs sought for declaration and injunction solely on the ground that the lst defendant has got remarried the 2nd F.A.O.No.347/2011 -6- defendant and she is not eligible to claim family pension. This is the main dispute between the parties and the reliefs are sought for based on this dispute. The defendants entered appearance and contested the case fully knowing well that the dispute in this case is regarding the status of the lst defendant, after the death of Udayabhanu. The question agitated by adducing evidence by the parties is the sole question as to whether the lst defendant is entitled to receive family pension. Two main issues framed in the case are as to whether the plaintiffs are entitled to declaration and whether they are entitled to injunction as sought for. The parties understood the controversy between them, dispute involved in the case and adduced evidence. The finding is entered based on the evidence. The trial court held that the lst defendant remarried the 2nd respondent and they are living as man and wife. In these circumstances, the Lower Appellate Court should have found that the question was understood by the parties properly and was agitated before the trial court and that no prejudice is caused to any of the parties for not framing an issue as to whether the lst F.A.O.No.347/2011 -7- defendant remarried the 2nd defendant. In these circumstances, this Court is of the view that the remand order suffers from legal infirmity. In the result, the appeal is allowed. The order of the Appellate Court remanding the case is set aside. The Additional District Judge Fast Track (Adhoc) Court, Mavelikara is directed to consider and dispose of A.S.No.25/2006 afresh. Since the appeal is of the year 2006, a further direction is issued to the court below to dispose of the appeal within a period of three months from the date of receipt of a copy of this judgment. Parties shall appear before the appellate court on 20/8/2012. Parties shall at liberty to move an application for any other relief, if so advised. No order as to costs. kcv. HARUN-UL-RASHID, JUDGE. F.A.O.No.347/2011 -8-