IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(Crl.).No. 12 of 2011(Q)
1. AJITH KUMAR, AGED 50 YEARS,
... Petitioner
Vs
1. SUMATHI KUTTIYAMMA,AGED 70 YEARS,
... Respondent
2. STATE OF KERALA,REP.BY CHIEF
3. S.I. OF POLICE, MARARIKULAM POLICE
For Petitioner :SRI.K.C.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/01/2011
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(Crl.). No.12 of 2011
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Dated this the 4th day of January, 2011.
JUDGMENT
Fight is between petitioner and respondent No.1, his widowed mother
aged about 72 years. Property involved is 64 cents and building thereon over
which petitioner claimed 1/5th right as per a settlement deed No.1934 of 1987.
He filed O.S.No.570 of 2001 in the court of learned Munsiff, Alappuzha for
partition and obtained a preliminary decree for separate possession of his 1/5th
share (but, excluding the building in question). According to the petitioner, he
did not challenge the preliminary decree excluding partition of the house since in
the meantime respondent No.1 had preferred a petition to the local karayogam
and there was some sort of settlement between them. In the meantime
respondent No.1 has preferred M.C.No.82 of 2008 in the court of learned Chief
Judicial Magistrate, Alappuzha under the Protection of Women from Domestic
Violence Act. She claimed that she was forcibly dispossessed by the petitioner
from the shared household. Learned Chief Judicial Magistrate by order dated
20.07.2010 allowed M.C.No.82 of 2008 by which petitioner is restrained from
causing obstruction to the residence of respondent No.1 in the shared
household and he is also directed to remove himself from the said shared
household. Petitioner has preferred Crl.Appeal No.681 of 2010 along with an
application to condone the delay of 124 days, against the final order in
M.C.No.82 of 2008 in the court of learned Session Judge, Alappuzha. Since the
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delay has not been condoned petitioner was not able to get stay of order in
M.C.No.82 of 2008. It is the case of petitioner that in the meantime on
26.12.2010, petitioner and his family were forcibly evicted from the shared
household with the assistance of the local police. Petitioner has approached
this Court for stay of order in M.C.No.82 of 2008 until the application for stay is
disposed of by the learned Sessions Judge. Learned counsel submits that
petitioner and family including wife and unmarried daughters are now staying in
the varandha of the house in question and to prove that, Ext.P7, photograph is
produced.
2. Proper course open to the petitioner is to move the learned
Sessions Judge for stay or such other interim reliefs as circumstances
warranted. As it is, the preliminary decree for partition does not give right for
the petitioner over the building in question. (Learned counsel submits that
petitioner is taking steps to file appeal against the preliminary decree and
judgment). Order in M.C.No.83 of 2008 directs petitioner to remove himself
from the shared household. In the circumstances I do not consider it proper to
interfere in the matter at this stage and pass any interim order. Petitioner has
to seek appropriate relief before the learned Sessions Judge who shall consider
the application untrammelled by any observation contained herein. If notice on
the application to condone the delay is not served on the respondents in the
appeal, it is open to the petitioner to request learned Sessions Judge to pass
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appropriate orders for immediate service of notice in whatever manner provided
under the law so that the applications to condone delay and for stay of the
order in M.C.No.82 of 2008 could be disposed of by the learned Sessions Judge
as early as possible.
With the above direction and observation this petition is closed.
THOMAS P.JOSEPH,
Judge.
cks