KUNJAMMA Vs. K. P. PHILIP

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs.Suit was one for setting aside a final order passed by the Sub Divisional Magistrate,Chengannur.The order is dated 6th May 1988.The order is passed under S.138 of the Code of Criminal Procedure.The operative portion of the order reads thus: - "From the evidence available to this court,it is satisfied that the removal of the building in dispute is necessary for the safety of the general public.The court admit that if timely repairs were done to the building its condition could not have deteriorated to the present position where nothing short of a total demolition of the building is possible for avoiding danger to the general public.The removal of the building may cause hardship to the tenants now occupying the building.But private interest have to subjugate itself to public interest.Therefore the conditional order passed by this court is made absolute.The tenants are asked to vacate the building to enable the petitioners to demolish the building.'One months time is given to the petitioners and the counter petitioners to carry out the order,failing which the court will take steps to enforce the order." This order was challenged before this court in Crl.M.C.No.755/88 by the present plaintiffs.This court dismissed the Crl.M.C.

(2.) AS such the order passed by the Sub Divisional Magistrate is operative and so the plaintiffs have filed the present suit to set aside the order.The court below considered many points including the question of jurisdiction and other allied matters and finally dismissed the suit.

(3.) BEFORE the court below,it was contended that the order makes it clear that the conditional order has been made absolute.So long as there is no conditional order,the Sub Divisional Magistrate cannot make a non existent conditional order absolute.This is a very attractive argument and that argument was put very forcefully and attractively by counsel for the appellants.Nevertheless,the submission cannot stand the scrutiny,since there was a conditional order though not as I said earlier,in strict conformity with the provisions of the Code of Criminal Procedure.This aspect has also been considered by this court and so I cannot say that the court below is wrong in finding that there is no illegality in passing an order under S.138 of the Code of Criminal Procedure,which has been challenged in this suit.Though the other points were raised,those points are not substantial points,which can be legally pressed into service.