NARAYANA PANICKER Vs. P KUMARAN NAIR

JUDGEMENT

(1.) THE 2nd counter-petitioner in M. C. 1 of 1950 on the file of the First, Class Magistrate Kottayam has filed this petition, for the issue of a writ in the nature of certiorari and to quash the proceedings started by the Magistrate, The petitioner is also the 5th defendant in O. S. 100 of 1107 of the Alleppey District Court. There was a receiver appointed for the collection of the profits from the properties over which the plaintiffs in the said case were declared to be entitled to one-half. That receiver was stated to have taken possession of the properties and leased out some of them to the 3rd counter-petitioner in this casa This lessee as the 2nd counter-petitioner and the plaintiff in O. S. 100 of 1107 as the 1st petitioner had filed petitions against the 5th defendant and others complaining against the acts of the petitioner in their attempt to trespass upon the properties leased out by the receiver to them. Pursuant to such petition, the police investigated the case and filed a report before the Magistrate for starting proceedings under Section 103, Criminal P. C. against the 5th defendant and others. The Magistrate did so and it is against the proceedings thus started that this petition to quash the proceedings had been filed. The receiver is the 1st counter-petitioner. The plaintiff in O. S. 100 of 1107 is the 2nd petitioner.

(2.) IT was admitted by both sides that a preliminary decree for partition had been passed in O. S. 100 of 1107 by the District Court of Alleppey and that this decision had been confirmed by the High Court. The plaintiff in the case is entitled to one-half of some of these properties. Though the preliminary decree was confirmed in 1118, no progress had been made to divide the properties so as to enable the Court to pass a final decree. The plaintiff therefore applied to appoint a receiver, to take the yield from the properties. The District Court allowed the petition and appointed a receiver. Defendants 3, 5 to 14 and 19 took up the matter in appeal to the High Court. The appeal was dismissed on 17. 1. 1124. The complaint is against the receiver thus appointed by the civil Court. The receiver stated that he had taken possession of the properties and leased them in auction with the sanction of the Court. That there was a sanction by the District Court to auction the properties for purpose of cultivation is admitted. But it was contended that such sanction was given without notice to the defendants. Whatever that might be the sanction was given by a competent Court and until that sanction is revoked it is binding on all the parties to the proceedings. The receiver leased out some of the properties in Chingom 1125. The defendants who apparently did not like this arrangement began to create trouble and so it was stated on behalf of the counter-petitioners that the lessees moved the police for taking appropriate action against the persons who were bent upon creating trouble. The Magistrate had on the report of the police and on proper grounds initiated proceedings against the persons said to be creating trouble affecting public peace. It cannot be said that the Magistrate is incompetent to start proceedings in this way. I cannot understand how a petition of this nature could be sustained. If the aggrieve parties thought that the Magistrate was acting without jurisdiction they had other appropriate remedies open to them. Where a distinct remedy is open to a party aggrieved by an order of an inferior Court, it is an abuse of the process of the Court to approach the High Court for issue of a writ of certiorari. The rulings in 'in re Somasundara Mudaliar AIR (19) 1932 Mad 171; Govindaswami v. Ramalingaswamy AIR (19) 1932 Mad 321 and Sundara Rao v. Madras Corporation AIR (29) 1942 Mad 348 would lay down that this is the proper rule to be applied when a writ of this nature is sought for. This is however not an inflexible rule and in some cases it had been held that though another remedy was provided for yet the Court would interfere if It was shown that before resort was made to such other remedy the mischief which was sought to be avoided would be committed. At any rate, no exceptions would arise in this case for, it could not be said that the party would in any way be prejudiced if he moves the matter in the proper way sanctioned by law. It has now become a fashion with some people to rush up to the High Court for issue of one of the High Prerogative writs when they feel a sort of righteous indignation against the administration of the State. Provision for these writs had been made with the object of protecting the fundamental rights of the citizens and not to harbour really delinquent persons. The present petition is an ill conceived one and I dismiss it with costs. Advocate's fee Rs. 25/- to the counter-petitioner who appeared by separate Advocates. The State also will, get their costs from the petitioner.