IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 OP(Crl.).No. 1067 of 2011(Q) ---------------------------------- MC.310/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT, VADAKARA .................... PETITIONER -------------- SHAMSEERA.C.K., W/O. RAZAK, AGED 29 YEARS, VARAPRATH THAZHAKUNIYIL HOUSE, ONCHIYAM AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.U.K.DEVIDAS RESPONDENT(S): --------------------- 1. RAZAK, @ IZHAK K.N.K, AGED 38 YEARS, S/O. ASSAINR, KURUMAN KULANGARA HOUSE, ERAMALA AMSOM, ORKKATTERI DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 501. 2. KADEESSA, AGED 65 YEARS, W/O. ASSAINAR, KURUMAN KULANGARA HOUSE, ERAMALA AMSOM, ORKKATTERI DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 501. 3. KOROTH AHAMMED, S/O. PATHU, AGED 55 YEARS, KOROTH HOUSE, NEAR M.E.S. SCHOOL, KARTHIKAPALLY AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT - 673 542. 4. RAZIYA, AGED 35 YEARS, W/O. ISMAIL, PARAKUNNATH HOUSE, KODANCHERI.P.O., PURAMERI (VIA0, THOONERI VILLAGE, VATAKARA TALUK, KOZHIKODE DISTRICT - 671 314. BY PUBLIC PROSECUTOR SRI.K.J. MOHAMMED ANZAR THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.). No.1067 of 2011 -------------------------------------- Dated this the 22nd day of March, 2011. JUDGMENT Notice to respondents is dispensed with in view of the order I propose to pass. 2. Petitioner moved a petition before learned Judicial First Class Magistrate, Vadakara under the Protection of Women from Domestic Violence Act, 2005 (for short, “the Act”) for various reliefs and moved an application for interim relief as well. According to the petitioner, after taking much adjournments respondents filed a counter statement disputing various claims in the petition. Petitioner wanted to file a re-joinder to the counter and filed Ext.P3, re-joinder with Ext.P4, application to receive the same. Grievance of petitioner is that the said application was returned on 07.02.2011. According to the learned counsel, the said order is not sustainable. It is contended by learned counsel that in view of Section 28(2) of the Act it is within the power of the court to lay down its own procedure for disposal of applications filed under Sections 12 and 23 of the Act. Learned counsel has also placed reliance on the decisions in Raosahed P. Kamble v. Shaila Raosaheb Kamble (2010 (4) KLT 331 (Bombay High Court), Dr.V.K.Vijayalekshmi Amma and another v. Bindu OP(Crl.) No.1067/2011 2 V. and others (2010 (1) KHC 57) and Dr.Preceline George @ Antony Preceline George v. State of Kerala and another (2010 (1) KHC 417) to contend that the proceedings under the Act are of civil nature and hence it is within the power of learned Magistrate to receive a re-joinder. There is also a request for a direction to the learned Magistrate to dispose of the proceeding as early as possible as provided under Section 12(5) of the Act. 3. It is seen from Ext.P4 that the application to receive the re-joinder was returned by the learned Magistrate without assigning any reason. When the application is filed, learned Magistrate ought to have received the same and passed appropriate orders rather than returning the same. In the circumstances, the order returning the application to receive re-joinder cannot stand and is liable to be set aside. But, it is for the learned Magistrate to decide whether the application to receive re-joinder could be allowed or not. 4. So far as the delay in disposal of the proceeding is concerned, without understanding volume of work of the court concerned and priority for disposal of older cases I think it not justifiable to issue a direction for early disposal of the case. It is open to the petitioner to request learned Magistrate for disposal of the interim application if any pending at the earliest. Resultantly this petition is allowed and the order returning Ext.P4, application for receiving the re-joinder is set aside. Learned Magistrate is OP(Crl.) No.1067/2011 3 directed to consider whether re-joinder can be received or not and pass appropriate orders after hearing the parties. THOMAS P.JOSEPH, Judge. cks