BY AD v. M.B.SHYNI

( S )/RESPONDENTS/DECREE HOLDER/PLAINTIFF : MUHAMMED BAVA AGED 66 YEARS S/O.MOIDEENKUTTY, SAKEENA MANZIL, KRIPA HOSPITAL ROAD, KALPETTA P.O., KALPETTA VILLAGE, VYTHIRI TALUK, WAYNAD DISTRICT, PIN - 673121 BY ADVS. M.B.SHYNI RAJESH KUMAR R.(K/112/2013) SARAFUDHEEN T.(K/801/2022) V.R.ANILKUMAR(K/001161/2020) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C.) No.2850 of 2023 2 C.JAYACHANDRAN, J. ------------------------------------ O.P.(C.) No.2850 of 2023 ------------------------------------ Dated this the 19th day of January, 2024 JUDGMENT This original petition challenges Ext.P7 order, which dismissed Ext.P5 application preferred by the petitioners under Section 47 of the Code of Civil Procedure in E.P. No.76/2019 in O.S. No.60/2015 of the Munsiff Court, Kalpetta. The suit O.S. No.60/2015 was preferred by the plaintiff therein seeking recovery of possession of the plaint schedule property and also, injunction. The first petitioner herein was the third defendant in that suit, who is wife of the first defendant/husband. The second defendant was the mother of the first defendant and the fourth defendant, the father of the third defendant/ petitioner. In the suit, the petitioner/D3 preferred a O.P.(C.) No.2850 of 2023 3 separate written statement espousing her rights under the Protection of Women from Domestic Violence Act (‘the Act’, for short), claiming that the petitioner is residing in the building situated in the plaint schedule property, which was sought to be recovered by the plaintiff. The contention was repelled and the suit decreed. An appeal, as well as a second appeal, were carried therefrom, but of no use. It is thereafter that the petitioner preferred Ext.P5 application under Section 47, raising the same contentions under the Act. The same was dismissed vide the impugned Ext.P7 order.

Heard the learned counsel for the petitioners and the respondent.

Learned counsel for the petitioner invited the attention of this Court to Ext.P2 judgment rendered by this Court in R.S.A. No.733/2021, wherein the right of the petitioner/D3 to invoke the provisions O.P.(C.) No.2850 of 2023 4 of the Act has been reserved. It is on the strength of that reservation that an application was preferred under Section 23(2) of the Act before the Chief Judicial Magistrate’s Court, Kalpetta. That application was allowed vide Ext.P3 order. It is thereafter that Ext.P5 application was preferred under Section 47 of the Code, which was dismissed vide the impugned Ext.P7 order.

The above submissions were seriously refuted by the learned counsel for the respondent.

Primarily, this Court is of the opinion that the so called reservation in Ext.P2 judgment of this Court is of little impact, insofar as the contention of the petitioner/D3 under the provisions of the Act is concerned. It is relevant to note that the very specific claim espoused by the petitioner/D3 in the suit was under the provisions of the Act, especially of her right to reside in the shared house-hold and opposing O.P.(C.) No.2850 of 2023 5 recovery on that premise. The said contention was repelled by the trial court, confirmed by the First Appellate Court and reiterated by this Court in the second appeal. The appeal was found to be devoid of any merit and the same was dismissed vide Ext.P2 judgment. In such circumstances, this Court is of the opinion that such reservation that ‘the appellants are at liberty to invoke provisions under the Domestic Violence Act’ is of no legal consequence.