SOJAN JOSE Vs. SUB DIVISIONAL MAGISTRATE PAINAVU, IDUKKI

JUDGEMENT

(1.) Petitioners are the respondents in a proceedings under Section 133 of the Code of Criminal Procedure (for short 'Code') commenced by the Sub Divisional Magistrate, Idukki. They have caused obstruction to a way running through their property, allegedly, used by public as of right, was the basis for initiating the aforesaid proceedings, in which a conditional order had been passed directing the petitioners to remove the obstruction or to show-cause why such order should not be made absolute. Petitioners filed objections contending that in a suit filed by their transferor a prohibitory order of injunction had been passed by the Civil Court against the complainants who were sued in the representative capacity, and, since the matter is seized and pending adjudication before the Civil Court, the proceedings under Section 133 of the Code have to be stayed. Ext. P6 is the objection. Sub Divisional Magistrate has not passed any order on Ext. P6 objection is the case of the petitioners for filing this original petition invoking the visitorial jurisdiction of this Court under Article 227 of the Constitution. Notice given the respondents have entered appearance, I heard the counsel on both sides.

(2.) An ex parte decree has been passed in the suit filed by the predecessor of petitioners, in which they got impleaded as additional plaintiffs, is the submission of the counsel for petitioners. Per contra, learned counsel appearing for the third respondent would submit that he was not a party in that suit and another suit filed under Section 91 of CPC as against the present petitioners is still pending with respect to the disputes, over the obstruction caused in the way claimed by the public as of right. If there is any prohibitory order, whether interim or final passed by the Civil Court in respect of the subject-matter covered by the proceedings under Section 133 of the Code, then the Sub Divisional Magistrate has to honour and respect that order. What is conferred under Section 133 is a preventive jurisdiction over disputes which are of civil nature, over which the final adjudicating authority is the Civil Court. So much so, the Sub Divisional Magistrate is bound to respect the orders passed by the Civil Court. With respect to the stay of the proceedings canvassed by the petitioners contending that Civil Court is already seized of matter and prohibitory orders are imposed, the learned Sub Divisional Magistrate, after looking to the materials and hearing the parties shall pass appropriate orders expeditiously.