Petitioners approached this Court aggrieved by Ext.P8 conditional order passed under Section 133 of the Code of Criminal Procedure by the Sub Divisional Magistrate, Thalassery. Referring to Ext.P9 final order, the petitioners submit that their counsel had appeared to show cause and requested time to file a counter. That was declined and a final order has been passed by making the conditional order absolute. It is challenging this order, petitioners filed this writ petition. 2. The learned counsel appearing for the party respondents disputes the maintainability of the writ petition, challenging the order under the Code of Criminal Procedure.
3. No doubt, no writ petition is maintainable when there is an alternate remedy against the final order. The challenge is not against the decision. It is only the procedure that resulted in the decision is under challenge. Therefore, the writ petition is maintainable if the procedure which lead to the decision is prima facie erroneous.
4. Petitioners submit that they sought for a week's time to file a counter and that was denied. However, it appears that this is on account of the nature of intervention required, the Sub Divisional Magistrate was constrained to pass such an order. However, I am of the view, in interest of justice, one more opportunity should be given to the petitioner. Therefore, petitioners shall file a counter, within a period of one week from today. The Sub Divisional Magistrate shall pass a fresh order after affording the petitioner and the party respondents an opportunity of being heard, within a period of two weeks thereafter. It is also open for the Sub Divisional Magistrate to implement conditional order if so warranted, in the facts and circumstances.
Parties shall appear before the Sub Divisional Magistrate on 02.12.2014.
A. MUHAMED MUSTAQUE JUDGE das