IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 WP(C).No. 36261 of 2008(P) -------------------------------------------- IA.2634/2008 of MUNSIFF COURT, ALUVA .................... PETITIONER: FR.MATHAI EDAYANAL, S/O.POULOSE, AGED 68, EDAYANAL HOUSE, VADAVUCODE P.O., CHEMMANAD VILLAGE, PUTHENCRUZ, PANCHAYATH, VICAR AND MANAGER, THRIKKUNNATH SEMINARY & CHURCH, ALUVA TALUK, ALUVA WEST VILLAGE. BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENTS: 1. THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANADU, ERNAKULAM DIST. 2. MRS.M.BEENA, W/O.VIJAYAN, AGED ABOUT 37 YEARS, AT PRESENT THE DISTRICT COLLECTOR, ERNAKULAM, RESIDING AT COLLECTOR'S BUNGLOW, M.G.ROAD, ERNAKULAM. 3. THE SUPERINTENDENT OF POLICE, ALUVA RURAL, NEAR POWER HOUSE JUNCTION, ALUVA. 4. MR.P.VIJAYAN, FATHER'S NAME NOT KNOWN, AGED ABOUT 41 YEARS, AT PRESENT FUNCTIONING AS THE SUPERINTENDENT OF POLICE, ALUVA RURAL, OFFICE OF THE SUPERINTENDENT OF POLICE, ALUVA RURAL, NEAR POWER HOUSE JUNCTION, ALUVA. 5. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM, COLLECTORATE, KAKKANAD. 6. THOMAS DIONYSIUS, AGED ABOUT 80 YEARS, S/O.MATHU, RESIDING AT MAR IGNATIUS SEMINARY, KOTHAMANGALAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.36261 of 2008 -------------------------- JUDGMENT The prayer of the petitioner in this writ petition is to set aside Exhibit P4 order passed dismissing I.A.No.2634/08 in the unnumbered suit of 2008 filed before the Munsiff's Court, Aluva and to direct the court below to dispense with notice under Section 80 of the CPC and to receive the suit on file. 2. The learned Munsiff has considered I.A.No. 2634/08 (Exhibit P3) filed by the petitioner/ plaintiff seeking for an order dispensing with notice under Section 80 of the CPC to respondents 1 to 5/defendants 1 to 5 and has observed that the affidavit filed in support of Exhibit P3 application does not disclose any compelling urgency; that a competent civil court has already granted injunction restraining the sixth defendant from entering the Thrikkunath Church premises and that the apprehension of the petitioner that the WPC 36261/08 2 officials of the State, who are respondents 1 to 5/defendants 1 to 5, will render unlawful assistance to the sixth defendant to enter the said premises in violation of the court order granting injunction against the sixth defendant is baseless. 3. It is submitted by the learned counsel for the petitioner that on 25.1.2009, memory day has to be celebrated and in view of Exhibit P2 news item that has appeared in Malayala Manorama Daily dated 26.10.2008, the petitioner/plaintiff has got genuine apprehension that respondents 1 to 4/ defendants 1 to 4, who are the officials to maintain law and order under the fifth respondent State, may assist the sixth respondent/sixth defendant to violate the injunction order and to interfere with the functions in the Church. 4. In the affidavit accompanying Exhibit P3 application, there is no such apprehension expressed nor is there any allegation that respondents 1 to 4/defendants 1 to 4 gave any WPC 36261/08 3 impression that they would interfere and assist the sixth respondent/sixth defendant to trespass into the Church premises and create any unlawful situation. Exhibit P2 also is not giving any such insinuation regarding the alleged apprehended danger that may be caused by the intervention of respondents 1 to 4/defendants 1 to 4. Unless respondents 1 to 4/defendants 1 to 4, by their conduct, give rise to a cause of action which calls for immediate relief being granted in the suit, the court cannot dispense with notice under Section 80(2) of the CPC. Further, it is to be noted that even assuming that Exhibit P2 news item gave such apprehension to the petitioner/plaintiff, that was on 26.10.2008. The memory day is only on 25.1.2009. There was sufficient time in between, viz., a period of three months. Notice under Section 80 of the CPC could have been issued within the said period, if at all Exhibit P2 was the news item which caused apprehension in the mind of the WPC 36261/08 4 petitioner/plaintiff that the sixth respondent/ sixth defendant may trespass into the Church premises with the assistance of high officials of the fifth respondent State, who are expected to maintain law and order. Exhibit P4 order passed by the court below, in the circumstances, cannot be faulted and interfered with. This writ petition is, hence, dismissed. 16th December, 2008 (K.P.Balachandran, Judge) tkv