RADHAMANI AMMA vs SHANMUGHAN, S/O.RAGHAVAN

1.The petitioner herein is the respondent in M.C.No.267 of

2014 on the file of the Sub Divisional Magistrate (for short

the ''SDM''), Thrissur. The said petition was originally filed

against one Vinod by the respondent herein complaining

that a coconut tree, which was standing in the north-east

corner of his property, was standing in a dangerous

condition.

2.A conditional order was issued which was made absolute

as the respondent did not appear before the SDM. As the

coconut tree stood in her property, the petitioner

approached the Court of Sessions by filing a revision

petition. The impugned order was set aside and the

learned Magistrate was directed to consider the matter

afresh. It appears that the petitioner herein entered

appearance and filed a detailed objection to the petition.

3.The case was posted on numerous occasions and later

when the same was taken up on 31.8.2016, finding that

there was no one to represent the petitioner herein, the

order was made absolute. According to the petitioner, no

evidence was taken and the learned SDM has failed to

comply with Section 138 of the Code of Criminal

Procedure.

4.In the said circumstances, a petition under Section 397 of

the Code was filed before the Court of Sessions invoking

revisional jurisdiction. The said petition is pending before

the Sessions Court. In the meantime, it appears that

steps have been taken by the learned SDM to enforce the

order passed.

5.The learned counsel prays that a breathing time be

granted to the petitioner. It is also submitted that a civil

suit was filed before the Munsiff Court, Thrissur as

O.S.No.7440 of 2014 and a Commissioner Advocate

appointed in the said suit had visited the property and had

submitted a report. Referring to Ext.P7 report, it is

submitted that the coconut tree has been secured

properly. It is also submitted that the civil court is seized

of the matter.

6.I have heard the learned Public Prosecutor as well.

7.Having gone through the impugned order and the

circumstances under which it was passed, I am of the

view that a breathing time is to be granted to the

petitioner, who is a senior citizen. No prejudice is likely to

be caused, if the proceedings are kept in abeyance for a

short period until the revision petition pending before the

Sessions Court is disposed of.

8.Having regard to the facts, the order dated 28.12.2016 of

the Sub Divisional Magistrate, Thrissur calling upon the

petitioner to cut and remove the coconut tree shall be

kept in abeyance for a period of two months. The

petitioner shall make all necessary efforts to bring up

Crl.R.P.No.43 of 2016 pending on the files of the Sessions

Court, Thrissur in the mean time. The learned Sessions

Judge is directed to consider and pass appropriate orders

on its merits expeditiously.

This petition is disposed of.