IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.MC.No. 3408 of 2010() ------------------------------------- CRRP.75/2008 of SESSIONS COURT, THRISSUR MC.151/2005 of SUB DIVISIONAL MAGISTRATE COURT, THRISSUR. .................... PETITIONER/REV.PETITIONER --------------------------------------------- SKARIA, S/O. PAILY, AGED 59 YEARS, OLICKAL PUTHANPURAYIL, KALLADAM DESOM, PULAKKODU VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.C.A.CHACKO, SMT.C.M.CHARISMA, SRI.N.A.SHAFEEK, SRI.M.S.UNNIKRISHNAN (OASIS). RESPONDENTS/RESPONDENTS: ------------------------------------------------ 1. V.M. MATHEW, S/O. VADAKKUMURIYIL MATHAI, PANGARAPPILLY VILLAGE, THALAPPILLY TALUK, THRISSUR-680 586. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3408 of 2010 -------------------------- ORDER Petitioner, the counter petitioner in M.C.No. 151/2005 on the file of Sub Divisional Magistrate, Thrissur, filed this petition under Section 482 of Code of Criminal Procedure challenging the order passed by the Sub Divisional Magistrate, making the conditional order absolute, as confirmed by the Sessions Judge, Thrissur in Crl.R.P.No.75/2008. Learned Sub Divisional Magistrate initiated proceedings under Section 133 of Code of Criminal Procedure on getting information that branches of rubber trees, jackwood trees, and Anjili trees, belonging to the petitioner, are dangerously leaning towards the property of the first respondent, the petitioner before Sub Divisional Magistrate and these are causing nuisance. Sub Divisional Magistrate directed the petitioner to remove the said branches or to show cause why the CRMC 3408/10 2 conditional order shall not be made absolute. Petitioner appeared and contended that O.S.No. 193/2005 is pending before Munsiff's Court, Wadakkanchery in respect of his property and requested the court to adjourn the case till the disposal of O.S.No.193/2005. O.S.No.193/2005 was decreed on the admission of the first respondent agreeing to obey the decree subject to the decision in Section 133 proceedings. After the suit was decreed, a report was called for from the Village Officer. Based on the report, finding that nuisance is being caused, the conditional order was made absolute. Learned Sessions Judge considered the legality and propriety of the order passed under Section 138 of Code of Criminal Procedure and confirmed the same. It is being challenged in this petition. 2. Argument of the learned counsel appearing for the petitioner is that when a decree has already been passed by the learned Munsiff in O.S. No.193/2005, restraining first respondent from trespassing into the property of the petitioner or CRMC 3408/10 3 committing any damages in that property, Sub Divisional Magistrate was not justified in making the conditional order absolute. It is also argued that when first respondent was restrained from causing damages to the property or the trees in the property, the conditional order cannot be made absolute. 3. The decree of the civil court itself is, admittedly, made subject to the decision in Section 133 proceedings pending before Sub Divisional Magistrate. I cannot agree with the submission of the learned counsel that making the conditional order absolute would amount to varying the decree for injunction granted by the learned Munsiff. It is made clear that in execution of the order passed under Section 138 of Code of Criminal Procedure, no damages shall be caused to the property of the petitioner, except cutting the branches of the trees referred to in Annexure-A2 order. Petition is disposed. 3rd September, 2010 (M.Sasidharan Nambiar, Judge) tkv