Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE17H DAY OF FEBRUARY201428TH MAGHA, 1935 OP(Crl.).No. 3898 of 2013 (Q) ------------------------------ MC NO.32/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM DATED2510-2013 ... PETITIONER(S): -------------------------- MARY,AGED78YEARS, W/O.PATHROSE, ILLATHUKUDY HOUSE, PERUMANNUR KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK, NOW RESIDING AT JEEVAKARUNYA BHAVAN, POOR HOME FOR THE AGED AND INFIRM, KULAPPURAM P.O., POTHANICADU VIA, ERNAKULAM DISTRICT-686 671. BY ADVS.SMT.P.DEEPTHI SRI.SABU JOHN RESPONDENT(S): ---------------------------- 1. JOSE, AGED41YEARS, S/O.PATHROSE, ILLATHUKUDY HOUSE, PERUMANNUR KARA, KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK- 686691. NOW RESIDING AT ILLATHUKUDY HOUSE, NAMBOORIKOOPPU BHAGAM, OONNUKAL P.O., KUTTAMANGALAM VILLAGE, KOTHAMANGALAM TALUK.
2. SHINY, AGED40YEARS, W/O.JOSE, ILLATHUKUDY HOUSE, NAMBOORIKOOPPU BHAGAM, OONNUKAL P.O., KUTTAMANGALAM VILLAGE KOTHAMANGALAM TALUK, NOW RESIDING AT HOUSE NO.250/12, SNRA, KUTHUKUZHY, KOTHAMANAGALAM VILLAGE, KOTHAMANGALAM TALUK. R1 BY ADVS. SRI.T.J.MICHAEL SRI.JOHN VIPIN R2 BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON1702-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(Crl.).No. 3898 of 2013 (Q) ------------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS: --------------------------------------- EXHIBIT P1 : TRUE COPY OF THE LETTER FROM JEEVAKARUNYA BHAVAN DT.5-10-2013. EXHIBIT P2 : TRUE COPY OF THE GIFT DEED NI.4810/1981. EXHIBIT P3 : TAX RECEIPT2210/2010 OF KUTTAMANGALAM VILLAGE. EXHIBIT P4 : TRUE COPY OF THE MC NO.32/2011 BEFORE THE JFMC, KOTHAMANGALAM. EXHIBIT P4A : TRUE COPY OF THE OBJECTION FILED BY THE1T RESPONDENT IN MC NO. 32/2011. EXHIBIT P5 : TRUE COPY OF THE CMP NO. 1346/2011 BEFORE JFMC, KOTHAMANGALAM. EXHIBIT P5A : TRUE COPY OF THE AFFIDAVIT IN CMP NO.1346/2011 BEFORE JFMC, KOTHAMAGALAM. EXHIBIT P5B : TRUE COPY OF THE OBJECTION FILED BY THE1T RESPONDENT IN CMP13462011. EXHIBIT P6 : TRUE COPY OF THE ORDER
CMP13462011 BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P7 : TRUE COPY OF THE PETITION IN CMP2034/2011 BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P7A : TRUE COPY OF THE OBJECTION CMP2034/2011 BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P8 : TRUE COPY OF THE COMMON ORDER
IN CMP13462011 AND CMP2034/2011 BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P9 : TRUE COPY OF THE SALE DEED NO.7227/2011 OF KOTHAMANGALAM SRO. Kss ..2/- ..2.... WPC.NO.3898/2013 (Q) EXHIBIT P10 : TRUE COPY OF THE CMP FOR PROSECUTION BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P11 : TRUE COPY OF THE OBJECTION FILED IN CMP FOR PROSECUTION BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P12 : TRUE COPY OF THE COMPROMISE FILED BY THE RESPONDENTS IN MC322011 BEFORE THE JFMC KOTHAMANGALAM. EXHIBIT P13 : TRUE COPY OF THE CMP224813 FILED BY THE PETITIONER BEFORE THE LOWER COURT FOR IMPLEADMENT. EXHIBIT P14 : TRUE COPY OF THE ORDER
REJECTING THE IMPLEADMENT. EXHIBIT P15 : TRUE COPY OF THE FINAL ORDER
IN MC3211. RESPONDENT(S)' EXHIBITS: ------------------------------------------- N I L /TRUE COPY/ P.A.TO JUDGE Kss K. RAMAKRISHNAN, J.
------------------------------------------------------------------ O.P.(Crl.).No.3898 of 2013 --------------------------------------------------------------------- Dated this the 17th day of February, 2014
JUDGMENT
This petition is field by the petitioner for a direction to set aside the interim order and collusive compromise entered into between the respondents herein in M.C.No.32/2011 on the file of the Judicial First Class Magistrate Court, Kothamangalam, in under Article 227 of the Constitution of India.
2. It is alleged in the petition that, she is aged 78 years and suffering from several ailments. The first respondent is her son and 2nd respondent is her daughter- in-law and wife of the first respondent. Petitioner and first respondent jointly owned and possessed two acre 23.750 cents of landed property and a residential house by virtue of gift deed No.4810/1981 of Sub Registrars Office, Kothamangalam. The 2nd respondent filed M.C.No.32/2011 O.P.(Crl.).No.3898 of 2013 2 before the Judicial First Class Magistrate Court, Kothamangalam, under Section 12 of Protection of Women from Domestic Violence Act, 2005, against the first respondent and obtained impugned orders, after filing collusive compromise from court, without arraying the petitioner as a party. The 2nd respondent is now residing in a rented house at Kuthukuzhi, along with her minor daughters. She is working as Insurance Branch Advisor with State Bank of India. The above mentioned property was sold as per directions of the court and first respondent purchased another property by virtue of sale deed No.7227/2011 of SRO Kothamangalam, with the consideration received in his ownership alone. Then the respondents entered into a collusive compromise between them in the above proceedings and parted the properties in between them along with the minors curtailing the petitioner's right in the property. She is a necessary party to the proceedings. The petitioner is abandoned by the O.P.(Crl.).No.3898 of 2013 3 respondents in a poor home at Pothanicadu. She filed an application before the lower court, to get her self impleaded in the proceedings and also to set aside the collusive compromise entered into between the parties, as Criminal M.P.No.2248/2013 and that petition was dismissed by the learned magistrate vide Ext.P14 order. This is being challenged before this court and the petitioner sought the following relief. "For the reasons stated in the accompanying affidavit it is humbly prayed that this Hon'ble court may be pleased to stay the further proceedings as per Ext.P15 till the disposal of the above original petition in the interest of justice." 3. Heard the learned counsel for the petitioner, as respondents are not present.
4. The counsel for the petitioner submitted that, her rights has been taken away by her son in the property by illegal means and thereafter an unlawful compromise was entered into between himself and his wife, who are the respondents herein and she was thrown out of the house on account of the same. So she wants to challenge that order O.P.(Crl.).No.3898 of 2013 4 passed by the magistrate and she is a necessary party to that proceedings.
5. It is an admitted fact that there is no allegation against the petitioner made by the 2nd respondent who was the aggrieved person in M.C.No.32/2011 pending before the Judicial First Class Magistrate Court, Kothamangalam. It is also in away admitted by the petitioner that her right in the property has been obtained by her son by making mis-representation and she was made to execute a document in his favour and mis- using the document that a compromise has been entered into and Ext.P15 collusive order was obtained by the respondents. So it is clear from this that she has admitted the execution of document in favour of her son, in respect of her right in the property. If it is obtained by fraud or mis- representation as claimed by her, her remedy is to file a suit and get the document set aside and get her right declared in the property by due process of law. She is not a O.P.(Crl.).No.3898 of 2013 5 necessary party to the proceedings pending between respondents 1 and 2 under the provisions of Protection of Women from Domestic Violence Act, 2005. So the lower court was perfectly justified in not allowing her Ext.P13 application, by rejecting the same as per Ext.P14. Even in the order, it has been mentioned that, her right is to move the Civil Court to set aside the document. So under the circumstances, there is no illegality committed by the court below in passing Ex.P14 order and the petitioner is not entitled to get the relief claimed in the petition. Her remedy is to approach a competent civil court to get her right declared, if so advised. So the petition is dismissed. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss