IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 Crl.MC.No. 3199 of 2010() ------------------------- CMP.4/2010 of SUB DIVISIONAL MAGISTRATE, TIRUR .................... PETITIONER(S): --------------- K.K.ABDULKHADER @ BAPU, S/O.SAIDALIKUTTY @ BAPPU HAJI, KACHARIKALICHAT HOUSE, MANGALAM P.O., TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): STATE -------------------- 1. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.T.AHAMED @ KUNHIMON, S/O.KUNHAVA MASTER, KARATT KADAVATH THOTTIYIL HOUSE, P.O.MANGALAM, TIRUR, MALAPPURAM DISTRICT. 3. K.T.BAPPUTTY, S/O.KUNHAVA MASTER, KARATT KADAVATH THOTTIYIL HOUSE, P.O.MANGALAM, TIRUR, MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR MR.C.S.HRITHWIK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ------------------------------------- Crl.M.C. No.3199 OF 2010 -------------------------------------- Dated this the 19th day of August, 2010 ORDER The petitioner was an applicant before the Sub Divisional Magistrate, Tirur under Section 133 Cr.P.C alleging that a coconut tree standing in the property owned by one Kunhava Master and his two sons by name K.T.Ahamed and K.T.Bapputty, was posing danger to the property of the petitioner and that the said nuisance may be abated by cutting and removing the said tree. A conditional order was passed under Section 133(1) (d) Cr.P.C on 20.4.2010 directing the said three persons either to cut and remove the coconut tree within seven days of receipt of the conditional order or to appear before the Sub Divisional Magistrate and show cause why the order should not be made absolute. Thereafter, the counter petitioners appeared before the Sub Divisional Magistrate and as per final order dated 22.6.2010 the conditional order was made absolute. On 23.6.2010 K.T.Ahamed and K.T.Bapputty filed an application for review of the final order dated 22.6.2010 alleging that their father the 1st counter petitioner Kunhava Master died on 4.4.2010 Crl.M.C. No.3199 OF 2010 : 2 : and all his legal heirs are to be impleaded. The Sub Divisional Magistrate thereupon reopened the case on 13.7.2010 and issued notice to both sides on 3.8.2010. The case was thereafter posted to 31.8.2010 for impleading the 3rd legal heir of the Kunhava Master, who is reported to be abroad. 2. The grievance of the petitioner is that the order dated 13.7.2010 reopening the case was passed without hearing the petitioner / applicant. Since the Kunhava Master and his two sons were already on the party array, even if Kunhava Master died on 4.4.2010 as alleged, his estate was substantially represented and the 3rd legal representative of the Kunhava Master was not liable to be impleaded and therefore, final order passed on 22.6.2010 was not liable to be reviewed. It appears that, this aspect of the matter has not been specifically urged before the Sub Divisional Magistrate. Since two of the legal heirs of Kunhava Master were already on the party array, there was no question of the proceedings abating on the death of Kunhava Master. If the order dated 13.7.2010 was passed without notice to the petitioner / applicant, then the said order is bad. Accordingly, this Crl.M.C. No.3199 OF 2010 : 3 : Criminal M.C matter is remitted to the Sub Divisional Magistrate to pass revised final order as follows: If the order dated 13.7.2010 re-opening the case and reviewing the final order dated 22.6.2010 was passed without notice to the petitioner / applicant herein and without giving him an opportunity of being heard, the said order will stand set aside and the petitioner will be given an opportunity of being heard before proceeding further with the application dated 23.6.2010 filed by the respondent Nos.2 and 3. If on the other hand, the order dated 13.7.2010 was passed after hearing the petitioner or after giving the petitioner an opportunity of being heard, then the petitioner can urge before the Sub Divisional Magistrate that the final order passed on 22.6.2010 does not still require any review since two of the legal representatives of the Kunhava Master were already before the Court and his estate was substantially represented. This Criminal M.C is disposed of as above. V.RAMKUMAR, JUDGE dmb