K.V. ABDUL RASHEED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE 3rd respondent herein had filed a complaint before the Sub Divisional Magistrate, Tirur under Section 133 of the Code of Criminal Procedure, against the 4th respondent herein for abatement of nuisance. In the said proceedings the Sub Divisional Magistrate initially passed provisional orders under Section 133(i)(d) of the Code of Criminal Procedure, and later passed a final order on 9.10.2013. The said order is sought to be quashed under Section 482 of the Code of Criminal Procedure by the petitioner herein, whose grievance is that he is actually the owner of the property and that the impugned order is legally and practically against him, when it is a fact that he was not a party in the proceedings before the Sub Divisional Magistrate.

(2.) WHEN this Crl.M.C came up for hearing, the learned counsel for the 3rd respondent submitted that the 3rd respondent filed the said complaint against the 4 respondent on the bonafide belief that the property actually belongs to the 4th respondent, and that she was not aware of the fact that the petitioner herein is the true owner against whom she will have to obtain orders from the Executive Magistrate. On a perusal of the final order under challenge, this Court finds that the matter was not properly and legally dealt with by the Sub Divisional Magistrate. The impugned order was passed without the proper and necessary party on the array. Admittedly, the 3rd respondent cannot enforce the impugned order against the petitioner herein, and it would be of no use to enforce the order against the 4th respondent, who was a party in the proceedings. Of course, the 3rd respondent has her own explanation for not proceeding against the petitioner herein, who is the right person to be proceeded against. Her explanation is that she thought that service would be impracticable and she thought that the order obtained against the mother of the petitioner could be enforced against him.