Riju Vijayan vs Nikhila P. Soman and State of Kerala

Thomas P. Joseph, J.—Petitioner challenges Annexure-G, interim order dated April 18, 2011 passed by learned Judicial First Class Magistrate-I, Kanjirappaly on C.M.P. No. 1631 of 2011 in M.C. No. 19 of 2011 filed by the first Respondent u/s 12 of the Protection of Women From Domestic Violence Act (for short, "the Act"). First Respondent sought various reliefs in C.M.P. No. 1631 of 2011 including residence order in respect of building No. 254 in Ward No. II of Parathodu Panchayat and also a further relief that she may not be dispossessed from the said building. Petitioner claims to be the absolute owner in possession of the said building as per the assignment deed executed in his favour even prior to the filing of the petition before the learned Magistrate. Learned Counsel submitted that Petitioner is not a party in M.C. No. 19 of 2011 or C.M.P. No. 1631 of 2011. It is also submitted that on the strength of the interim order passed by the learned Magistrate, the first Respondent has dispossessed Petitioner from the building in his possession and ownership and has started residence. I have heard learned Public Prosecutor also.

Learned Counsel submitted that since Petitioner is not an ''aggrieved person'' as defined in Section 2(a) or a ''Respondent'' as defined in Section 2(q) of the Act Petitioner is not in a position to prefer appeal against the impugned order as provided u/s 29 of the Act.

The courts have taken consistent view that though proceedings under the Act are before the Magistrate as defined in Section 2(i) of the Act proceedings (except relating to offences under the Act) are of a civil nature. The Bombay High court in Rasheed P. Kamble v. Shaila Raosaheb Kamble 2010 [4] KLT 331 has held that since proceedings are of a quasi civil nature the Magistrate has power to allow amendment of application and written statement. This Court in Vijayalekshmi Amma v. Bindu 2010 [1] KHC 57 has also held that reliefs claimed under the Act are of a civil nature. Section 28(2) of the Act permits the court of Magistrate to lay down its procedure in certain matters.

If Petitioner is not a party to the proceeding and is aggrieved by the impugned order he can approach the learned Magistrate and seek his impleadment as a party to the proceeding. If any application for impleadment is filed learned Magistrate shall pass appropriate orders on the said application as provided under law after hearing the other interested parties in the proceeding as well, as early as possible.

Criminal Miscellaneous Case is disposed of with the above direction.