WP(C) No. 22632 of 2010 · Kerala High Court

WP(C).No. 22632 of 2010 (O) APPENDIXPETITIONER'S EXHIBITS:P1:THE PHOTOCOPY OF PLAINT OS NO.154/2008 DATED 21.2.2008 FILED BY THE RESPONDENTS BEFORE THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.P2:THE PHOTOCOPY OF THE INTERIM RODER IN IA NO.1070/08 IN OS NO.154/2008 OF THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 23.2.2008.P3:THE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER INOS NO.154/2008 BEFORE THE FIRST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 2.4.2008.P4:PHOTOCOPY OF THE INJUNCTION PETITION AS IA NO. 2359 OF 2009 IN O.S NO.154/2008 DATED 25.5.2009 FILED BY THE PETITIONER. P5:THE PHOTOCOPY OF OBJECTION FILED BY THE RESPONDENT IN IA NO.2359/2009 OS NO.154/2008 DATED 3.6.2009.P6:THE PHOTOCOPY OF THE ORDER DATED 19.8.2009 IN I.A. NO.2359/2009IN O.S. NO.154/2008 PASSED BY THE COURT OF THE ADDITIONAL MUNSIFF-1, NEYYATTINKARA.P7:THE PHOTOCOPY OF IA NO.629/2010 IN OS NO.154/2008 FILED BY THE PETITIONER BEFORE THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.P8:THE PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENTS IN I.ANO.629/2010 IN OS NO.154/2008 BEFORE THE 1ST ADDITIONAL MUNSIFFCOURT, NEYYATTINKARA DATED 28.1.2010.P9:THE PHOTOCOPY OF COMMISSION APPLICATION FILED BY THE PETITIONER AS IA NO.628/2010 IN OS NO.154/2008 BEFORE THE 1ST ADDITIONALMUNSIFF COURT, NEYYATTINKARA DATED 28.1.2010.P10:THE PHOTOCOPY OF OBJECTION FILED BY THE RESPONDENTS IN O.S. NO.154/2008 DATED 5.2.2010 BEFORE THE 1ST ADDITIIONAL MUNSIFF COURT NEYYATTINKARA.P11:THE PHOTOCOPY OF THE JUDGMENT IN W.P(C) NO.4775/2010(O) PASSEDBY THIS HONOURABLE COURT DATED 15.2.2010.P12:THE PHOTOCOPY OF COMMISSION REPORT IN OS NO. 154/2008 SUBMITTEDBY THE ADVOCATE COMMISSIONER DATED 15.3.2010.P13:THE PHOTOCOPY OF AFFIDAVIT AND PETITION IN OS NO.154/2008 FILED BY THE RESPONDENTS 1 & 2 BEFORE THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA DATED 2.6.2009.P14:THE PHOTOCOPY OF THE PETITION FILED BY THE RESPONDENTS 1 AND 2 INIA NO. 2526/2009 IN OS NO.154/2008 BEFORE THE 1ST ADDITIONALMUNSIFF COURT, NEYYATTINKARA DATED 3.6.2009.

WP(C).No. 22632 of 2010 (O) P15:THE PHOTOCOPY OF I.A. NO.159/2009 IN OS NO.154/2008 BEFORE THE 1ST ADDITIONAL MUNSIFF COURT, NEYYATTINKARA FILED BY THE 3RD RESPONDENT DATED 28.11.2009.P16:THE PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER IN I.ANO.159/2009 IN O.S NO.154/2008 BEFORE THE 1ST ADDITIONAL MUNSIFFCOURT, NEYYATTINKARA DATED 6.2.2010.P17:THE PHOTOCOPY OF THE ORDER IN I.A. NO.159/2009 IN MUNSIFF COURTNEYYATTINKARA.RESPONDENTS' EXHIBITS: NIL//TRUE COPY//PA TO JUDGE Scl. A.V. RAMAKRISHNA PILLAI, J.------------------------------------------WP(C) No: 22632 OF 2010------------------------------------------Dated this the 14th day of August, 2012J U D G M E N TUnder challenge in this petition is the order passed by the First Additional Munsiff Court, Neyyattinkara on IA No:159/2009in OS No:154/2008.

The respondents 1 and 2 herein instituted the original suit against the petitioner restraining him from trespassing into the plaint schedule property and restraining him from causing any obstruction to the brick manufacturing business in the plaint schedule property. Subsequent to the filing of the suit, the 3rdrespondent herein was impleaded as additional third plaintiff. The petitioner herein is the husband of the third respondent. IANo:159/2009 was filed by the respondents for returning the plaint. The learned Munsiff raised a preliminarily issue regarding the maintainability of the suit before that court and finding that the Munsiff's Court has no jurisdiction to entertain the suit by virtue of Explanation C of Section 7(1) of the FamilyCourts Act, 1984, ordered to return the plaint for presenting the same before the Family Court, Thiruvananthapuram. The said WP(C) No: 22632 OF 2010..2..order is under challenge in this writ petition.

I have heard both sides and the impugned order is perused.

The learned counsel for the petitioner would submit that there is a chance of settlement between himself and the 3rdrespondent, who is the wife and therefore, the matter has to be referred for mediation. The learned counsel for the respondents submitted that the 3rd respondent is not willing for mediation. Itis also brought to the notice of this Court that the original petition filed by the petitioner before the Family Court for dissolution of marriage is pending as OP No:719/2010.

Going through the impugned order, I see no infirmity calling for an interference under Article 227 of the Constitutionof India. The property involved in the original suit was settled by respondents 1 and 2 in the name of the 3rd respondent and the petitioner. So, it is essentially a matter coming within the purview of Section 7(1) C of the Family Courts Act and the proper forum where the matter has to be adjudicated is the Family Court. It is also just and proper that this suit be tried by the same forum, i.e., the Family Court, Thiruvananthapuram. If WP(C) No: 22632 OF 2010..3..the petitioner is willing for a settlement through mediation as submitted here, he can try for that when the matter reaches before the Family Court, Thiruvananthapuram.

There is absolutely no reason for interfering with the impugned order as the impugned order does not suffer from any illegality, impropriety or irregularity calling for an interference under Article 227 of the Constitution of India. Therefore, Idecline jurisdiction under Article 227 of the Constitution of India.