IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 OP(Crl.).No. 12 of 2011(Q) -------------------------- CRA.681/2010 of SESSIONS COURT, ALAPPUZHA MC.82/2008 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... PETITIONER/APPELLANT/RESPONDENT --------------------------------------------------- AJITH KUMAR, AGED 50 YEARS, S/O.LATE PADMANABHA KURUP,SUMATHY SADANAM, KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA. BY ADV. SRI.K.C.SUDHEER RESPONDENT(S): RESPONDENTS/PETITIONER/STATE ------------------------------------------- 1. SUMATHI KUTTIYAMMA,AGED 70 YEARS, W/O.LATE PADMANABHA KURUP,SUMATHY SADANAM, KATTOOR MURI,KALAVOOR VILLAGE, NOW RESIDING AT SHANKARAMANGALAM, CHAVARA, KOLLAM. 2. STATE OF KERALA,REP.BY CHIEF SECRETARY,THROUGH PUBLIC PROSECUTOR,ALAPPUZHA. 3. S.I. OF POLICE, MARARIKULAM POLICE STATION, MARARIKULAM, ALAPPUZHA DISTRICT. PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. FOR R2 & R3 THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.). No.12 of 2011 -------------------------------------- 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 OP(Crl.)No.12/2011 2 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 OP(Crl.)No.12/2011 3 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