Kerala High Court
Against The Order/Judgment In Cra ... vs Rajagopalan Nair on 22 March, 2021
Crl.MC.No.444 OF 2021(E) 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
Crl.MC.No.444 OF 2021(E)
AGAINST THE ORDER/JUDGMENT IN CRA 9/2017 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - III, ALAPPUZHA
PETITIONERS/PETITIONERS/APPELLANTS
1 RAJAGOPALAN NAIR
AGED 71 YEARS
S/O.MADHAVAN NAIR, KAIRALI APARTMENT B003, PLOT
NO.10, SECTOR -3, DWARALA, NEW DELHI-110078,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
B.RAJENDRAN, S/O.G.BALAKRISHNA PILLAI, FLAT NO.II-
B, SREEDHANYA HEAVEN APARTMENT, SERVICE SCHOOL
ROAD, AMBALAMUKKU, PEROORKADA (P.O),
THIRUVANANTHAPURAM-695005.
2 M.MADANAGOPALAN NAIR,
AGED 68 YEARS
S/O.G.BALAKRISHNA PILLAI, 5A, GANDHI NAGAR, SAI
DARSANAM, AYATHIL P.O., PULIYATHUMUKKU, KOLLAM-
691017.
3 KAMALAMMA,
AGED 80 YEARS
D/O.MADHAVAN NAIR, NO.4, RAILWAY COLONY, 4TH
STREET, AMINJIKARAI, CHENNAI-600029, REPRESENTED BY
HER POWER OF ATTORNEY HOLDER B.RAJENDRAN,
S/O.BALAKRISHNA PILLAI, FLAT NO.II-B, SREEDHANYA
HEAVEN APARTMENT, SERVICE SCHOOL ROAD, AMBALAMUKKU,
PEROORKADA (P.O), THIRUVANANTHAPURAM-695005.
4 SARADAMMA,
AGED 67 YEARS
D/O.MADHAVAN NAIR, VELAYUDHA NIVAS, NEAR POWER
Crl.MC.No.444 OF 2021(E) 2
HOUSE, MAVELIKARA VILLAGE, PIN-690106.
5 VIJAYAKUMARI,
AGED 64 YEARS
D/O.MADHAVAN NAIR, ARUNIMA, HOUSE NO.118,
DESINGANADU NAGAR, ASHRAMAM, KOLLAM, FROM MADHAVA
MANDIRAM, KAYAMKULAM P.O., PIN-690502.
BY ADV. SRI.D.KISHORE
RESPONDENTS/RESPONDENTS/RESPONDENTS AND STATE:
1 O.P.KAMALAKSHI
W/O.VENUGOPALAN NAIR, MADHAVAMANDIRAM,
KUNNATHALUMMOODU, KRISHNAPURAM VILLAGE,
KARTHIKAPPALLY, ALAPPUZHA DISTRICT, PIN-690516.
2 STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
R1 BY ADV. SRI.SANIL JOSE
OTHER PRESENT:
AJITH MURALI- P.P
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
22.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.444 OF 2021(E) 3
ORDER
Heard the learned counsel for the petitioners, the learned
counsel for the respondents as well the learned Public Prosecutor.
2. The petitioners are the appellants in Crl.Appeal No.9/2017
preferred by them against the order in M.C.No.11/2013. M.C
No.11/2013 was filed by the first respondent herein against the
petitioners under Section 12 of the Protection of Women from
Domestic Violence Act.
3. The learned Judicial First Class Magistrate, Kayamkulam
allowed the petition since the respondents therein failed to appear
before the court concerned and challenge the petition filed against
them. Thereafter they appeared before the court below and filed C.M.P
No.5882/2016 to set aside the exparte order dated 12.8.2016. But the
court below by a considered order dismissed the application on
09.01.2017. Thereafter the said order was challenged in Crl.Appeal
No.9/2017. The learned Additional Sessions Judge-III, Mavelikkara
after hearing both sides on 23.03.2020 passed a conditional order
directing the petitioners herein to pay a sum of Rs.2500/- as costs and
a period of 90 days was also granted to deposit the amount before the
Magistrate Court so as to enable them to contest the matter. But they
failed to remit the amount and after 90 days these petitioners filed
Crl.M.P No.714/2020 seeking extension of time for deposit of the
amount. The prayer was rejected and the application was dismissed by
the court by an order dated 05.01.2021.
4. Aggrieved by the said order this Crl.M.C has been filed by the
petitioners.
5. The learned counsel for the petitioners would submit that the
first petitioner is aged 71 years and all the other petitioners who are
the siblings of the husband of the first respondent are aged above 60
years. They are not residing within the jurisdiction of the Court of the
Sessions Judge who passed the order dismissing the application filed
by them for extension of time for deposit of the amount.
6. The petitioners are represented through power of attorney.
But he is residing at Chennai and because of pandemic situation and
the restriction imposed by the Government he could not travel upto
Mavelikkara to deposit the amount ordered by the court as per
Annexure III. Now it is submitted by the learned counsel that they are
ready to deposit the amount if time is granted, as they intend to
challenge the order of the court below and contest the matter. It is
also pointed out by the learned counsel for the petitioners that they
are only the siblings of the husband of the first respondent who is
residing with her. It is to be noted that due to the onset of Covid-19
pandemic the Apex Court, extended even the period of limitation
prescribed under the general law and special laws with effect from
15.3.2020 considering the difficulties faced by the litigants and time
was extended from time to time. Now only the said order is modified
as the country is found returning to normalcy.
7. Therefore, considering the entire facts and circumstances
involved in this case, I think that it is just and proper to afford an
opportunity to the petitioners to challenge the matter on merits before
the learned Judicial First Class Magistrate. But that can only be on
payment of cost. So the petitioners can be directed to pay a sum of
Rs.10,000/- before the Judicial First Class Magistrate-I, Kayamkulam.
The amount of Rs.2500/- imposed by the learned Additional Sessions
Judge-III, Mavelikkara is enhanced to Rs.10,000/- . Time is granted
for deposit of the said amount upto 12.4.2021. If the amount is
deposited before the court below the first respondent is entitled to
withdraw the same. The learned Magistrate shall take up the
application filed by the petitioners to set aside the exparte order and
allow the petition and then dispose of M.C.No.11/2013 on merits,
after affording an opportunity to contest the case.
It is made clear that the parties shall appear before the Judicial
First Class Magistrate-I, Kayamkulam on 12.4.2021.
Crl. M.C is disposed of.
SHIRCY V.
smm JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE I TRUE COPY OF THE MEMORANDUM OF
M.C.NO.11/2013 ON THE FILE OF JFMC-I,
KAYAMKULAM.
ANNEXURE II TRUE COPY OF THE ORDER DATED 09.01.2017 IN
CMP 5882/2016 IN M.C.11/2013 OF JFMC,
KAYAMKULAM.
ANNEXURE III TRUE COPY OF THE JUDGMENT DATED 23.03.2020
IN CRL.APPEAL 9/2017 OF ADDL.SESSIONS
COURT-III, MAVELIKKARA.
ANNEXURE IV TRUE COPY OF THE AFFIDAVIT AND PETITION IN
CRL.M.P.714/2020 IN CRL.APPEAL 9/2017 FILED
BEFORE THE ADDL.DISTRICT COURT, MAVELIKARA.
ANNEXURE V TRUE COPY OF THE ORDER DATED 05.01.2021 IN
CRL.M.P 714/2020 IN CRL.APPEAL 9/2013 OF
THE ADDL.SESSIONS COURT-III, MAVELIKARA.
