MENABEN W/o. SOHANSING v. SHANTABEN BABARBHAI — 1983 DIGILAW 138 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE petitioner Menaben widow of Sohansingh had filed on application under Section 145 of the new Code of Criminal Procedure (hereinafter referred to as the Code) before the Executive Magistrate Ahmedabad (bearing the Chapter case No. II 32/81) praying for an order for the recovery of the premises consisting of a room bearing No. 39/b situated near Charbhuja Restaurant Opposite Central Bank Kohkhara Mahemdabad Amraiwadi (hereinafter referred to as the disputed premises) from the respondent No. 1 Shantaben Babarbhai who had allegedly forcibly and wrongfully deprived her of their possession. The Executive Magistrate by his order dated 4 allowed the application declaring that the disputed premises were in the possession of the petitioner. ( 2 ) HAVING been aggrieved by the aforesaid order of the Executive Magistrate the respondent No. 1 preferred Criminal Revision Application No. 272 of 1982 in the Court of the City Session Judge at Ahmedabad which was allowed by the learned Additional City Session Judge (Court No. 2) by his judgment and order dated 6-1-1983 whereby he set aside the order passed by the Executive Magistrate. ( 3 ) HAVING been aggrieved by the revision order of the Additional City Sessions Judge the petitioner (original complainant) has preferred this Special Criminal Application under Article 227 of the Constitution of India. ( 4 ) THE following is the factual background of the above referred legal proceedings between the parties. The late husband of the present petitioner had taken on rent the disputed premises from the husband of the respondent No. 1 on a monthly rent of Rs. 100/ -. They were taken on rent for running a garage for repairing scooters etc. The husband of the petitioner expired in April 1980 and thereafter the petitioner was getting the repairing work done through two servants. The husband of the respondent No. 1 started giving threats to the petitioners servants that if the premises in question were not vacated very serious consequences would follow. In view of such threats the petitioner was required to lodge a police complaint and chapter cases against the husband of the respondent No. 1. ( 5 ) SOMETIME in May 1981 the quarrel between the husband of the respondent No. 1 and the petitioners servants took a violent turn wherein the Petitioners servants as well as the husband of the respondent No. 1 were seriously injured. ( 5 ) SOMETIME in May 1981 the quarrel between the husband of the respondent No. 1 and the petitioners servants took a violent turn wherein the Petitioners servants as well as the husband of the respondent No. 1 were seriously injured. The husband of the respondent No. 1 succumbed to the injuries after about 12 days of the incident. The prosecution was launched against the petitioners servants in the Criminal Court. In view of the fact that both the servants of the petitioner were arrested by the Police the petitioner could not run the garage and the garage was locked. It remained locked from 13-5-1981 to 19 the date on which another incident occurred which led to the filing of the petition under Section 145 of the Code. ( 6 ) IN the meantime the petitioner continued to send rent for the premises in question. On 12th August 1981 the respondent No. 1 accepted the rent of Rs. 200/- which the petitioner had sent by a Money Order. Thereafter the Petitioner sent two Money Orders which were however refused by the respondent No. 1. It is pertinent to note that the petitioner continued to remain in possession of the disputed premises till 19th November 1981. ( 7 ) ON November 11 1981 the petitioner passed by the disputed premises at about 7-00 oclock in the morning when she found her locks on the disputed premises intact. The Petitioner had occasion to go near the disputed premises once more during the course of the day precisely speaking at about 12 noon on the very day in the company of one Kamlaben and her husband when she found that the disputed premises were broken open and the articles lying therein were thrown outside the disputed premises. The Petitioner therefore immediately lodged a criminal complaint before the Police Inspector Amraiwadi Police Station. A Panchnama was made by the Police on 19-11-1981 itself at about 2-45 p. m. wherein it was recorded that the tools for scooter-repairing and other scrap materials were lying outside the disputed premises. ( 8 ) THE Petitioner thereafter tried to recover possession of the disputed premises from the respondent No. 1 but she was threatened by the respondent No. 1 and her hirelings that she should be done to death if she persisted in her efforts to detain the possession. ( 8 ) THE Petitioner thereafter tried to recover possession of the disputed premises from the respondent No. 1 but she was threatened by the respondent No. 1 and her hirelings that she should be done to death if she persisted in her efforts to detain the possession. The petitioner thereafter was constrained to file the application under Section 145 of the Code in the Court of the Executive Magistrate Metropolitan Area Ahmedabad for restoration of the possession of which she was forcibly and illegally deprived by the respondent No. 1. ( 9 ) ON the application being filed before the Executive Magistrate the Executive Magistrate considered it along with the affidavits of Kamlaben pratapsinh Mohmakalim Mohmadymus Mohmad Mustakin Mahumad Yema Yunus and Bhaverlal Mohanlal Sharma as well as the documentary evidence and passed a preliminary order on 7-12-1981 requiring the respondent No. 1 to appear before him. ( 10 ) THE respondent No. 1 filed a written statement and opposed the petitioners application. The Executive Magistrate then recorded the evidence of the Petitioner as well as her witnesses Kamlaben Pratapsinh Bhaverlal Mohanlal and Mustakin Mohmad Yunus Documentary evidence was also submitted before him by the petitioner io support of her claim. ( 11 ) ON the side of the respondent No. 1 she examined herself and her witness Varsibhai Maijibhai. ( 12 ) AFTER considering the entire evidence which was produced before him the Executive Magistrte as stated above allowed the petitioners application. ( 13 ) THE respondent No. 1 took the matter before the Additional City Session Judge Ahmedabad in Cri. Revision Application No. 272 of 1982. The Additional Session Judge allowed the Revision Application for the reasons stated in his judgment. The main reason for allowing the revision application was that there was no apprehension of breach of peace when the Executive Magistrate passed the final order. Mr. U. A. Khatri the learned Advocate for the respondent No. 1. who had appeared also in the revision application before the Additional City Sessions Judge had taken a stand before him that Section 145 of the Code would not be attracted if there was no likelihood of a breach of peace when the application was being decided. Mr. U. A. Khatri the learned Advocate for the respondent No. 1. who had appeared also in the revision application before the Additional City Sessions Judge had taken a stand before him that Section 145 of the Code would not be attracted if there was no likelihood of a breach of peace when the application was being decided. He submitted that if there was no likelihood of breach of peace at the time when the matter was being decided the circumstances justifying invoking of Section 145 of the Code did not exist and the Executive Magistrate would have no jurisdiction to pass the order in question. This agreement appealed to the Additional City Session Judge and he allowed the Criminal Revision Application. ( 14 ) THE present Special Criminal Application is filed under Article 227 of the Constitution of India by the petitioner on the ground that the judgment and order of the Additional City Sessions Judge in the aforesaid Criminal Revision Application suffers from misconception of law and consequently there is a patent il-legality found in his judgment. ( 15 ) IN support of his argument Mr. Mohit Shah the learned Advocate for the petitioner relied upon the ruling in the case of Rajpati v. Bachan and another AIR 1981 Supreme Court 18. This judgment squarely meets with Mr. Khatris submissions. According to the judgment a finding of existence of breach of peace is not necessary at the time when a final order is passed nor is there any provision in Criminal Procedure code requiring such a finding in the final order. Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of S. 145. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub-S. (6) of S. 145. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub-S. (6) of S. 145. It is also observed therein that even assuming that there was an omission on the part of the Magistrate to mention in the final order that there was breach of the peace that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate particularly when there is nothing to show that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. Mr. Khatri had no reply to submit in view of the above legal position as settled by the Supreme Court. ( 16 ) IN this view of the matter the judgment and order of the Additional City Sessions Judge suffers from a patent illegality and the present Special Criminal Application must succeed. I may also point out that the misconception of law on the part of the Additional City Session Judge has resulted into an obvious miscarriage of justice to cure which I believe the power vested in me under Art. 227 of the Constitution must be exercised. ( 17 ) MR. Khatri then submitted a new argument which he had not advanced before that it was not proved that the petitioner was deprived of her possession of the disputed premises forcibly and wrongfully. Mr. Khatri further submitted that there was no evidence that the petitioner was deprived of the possession of the disputed premise within two months of the presentation of an application to the Executive Magistrate so as to attract the proviso to sub-section (4) of Section 145 of the Code. Mr. Khatri submitted that when the application was presented by the petitioner to the Executive Magistrate obviously it was the respondent No. 1 who was in possession of the disputed premises If that was so the provisions of Section 145 of the Code would be attracted only if the petitioner could bring her case within the four corners of the proviso to sub-sec. (4) of Section 145 of the Code and there was no evidence to suggest that the petitioners case was so covered. ( 18 ) MR. Mohit Shah met with both the arguments raised by Mr. Khatri. (4) of Section 145 of the Code and there was no evidence to suggest that the petitioners case was so covered. ( 18 ) MR. Mohit Shah met with both the arguments raised by Mr. Khatri. He submitted that there was evidence on record to show that the petitioner was in possession of the premises in the morning of the day on which the deprivation of the possession of the disputed premises took place. He invited my attention to the complaint filed by the petitioner on 19-11-1981 itself wherein she stated that she had passed by the disputed premises at about 7-00 a. m. when she had found her two locks on the disputed premises intact. It cannot therefore be said that there is no evidence whatever for attracting the proviso to Sub-Section (4) of Section 145 of the Code. Morover I would not enter into any factual dispute at this stage if on behalf of the respondent No. 1 an advantage was sought to be taken of the legal technicalities which would involve consideration of facts such as defence ought to have been raised before the Executive Magistrate. No such plea was taken and therefore the factual position was not gone into from this angle. However I have taken into account a statement of the petitioner in her complaint because it was incorrect on the part of Mr. Khatri to state that there was no evidence of the factual position which would attract proviso to Sub-Section (4) of Section 145 of the Code. ( 19 ) SO far as the question of a forcible and illegal deprivation of the possession is concerned a ruling in the case of R. N. Bhutani v. Miss Mani J. Desai and others AIR 1968 Supreme Court 1444 is a clear reply to it. A short resume of facts of the aforesaid ruling would show that the ratio of the judgment is clearly applicable to the present one. The respondent No. 1 therein had her office premises in Nawab Building Fort Bombay which consisted of two cabins. On July 10 1964 she entered into an agreement with the appellant permitting him to occupy one of the cabins on leave and licence for a period of 11 months. On June 9 1965 the agreement was extended for a period of eleven months. On July 10 1964 she entered into an agreement with the appellant permitting him to occupy one of the cabins on leave and licence for a period of 11 months. On June 9 1965 the agreement was extended for a period of eleven months. The appellants case was that it was further extended for another 11 months as from May 10 1966 and the respondent No. 1 accordingly accepted Rs. 450/- as compensation from May 1966. The respondent No. 1 thereafter demanded higher compensation which he refused to pay and thereupon the respondent No. 1 refused to execute the renewal and threatened to eject him forcibly if he did not vacate. In the morning of June 11 1966 the respondent No. 1 broke open the staple of the cabin removed the door from it hinges removed all his belonging lying in the cabin and dropped them in the passage outside. She then handed over possession of the cabin to respondents Nos. 2 and 3 purporting to do so under an agreement of licence dated June 1 1966 When the appellant went to the cabin he found the cabin occupied by respondents Nos. 2 and 3 On his asking them to place back his belongings and to restore possession to him the respondents threatened him with dire consequences. It is in the light of these Acts that the following observation of the Supreme Court is relevant. :the word `dispossessed in the second proviso means to be out of possession removed from the premises ousted ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law it would be a case of both forcible and wrongful dispossession. :the word `dispossessed in the second proviso means to be out of possession removed from the premises ousted ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law it would be a case of both forcible and wrongful dispossession. The Supreme Court referred to Jiba v. Chhandulal AIR 1926 Bombay 91 wherein the High Court of Bombay held that it would be unfair to allow the other party the advantage of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has fled a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dis-possessed party was in actual or deemed possession under the second proviso. In the case of A. N. Shah v. Nageswara Rao AIR 1947 Madras 133 it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that therefore proceedings under Section 145 should be dropped. It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him. That does not mean that he is not to have the benefit of the remedy under Section 145. The second proviso to sub-section (4) and sub-section (6) contemplates not a fugitive act of trespass or interference With the possession of the applicant the dis-possession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession. It is thus fairly clear that the fact that the disposession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under Section 145 and give directions permissible under sub-section (6 ). It is thus fairly clear that the fact that the disposession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under Section 145 and give directions permissible under sub-section (6 ). ( 20 ) IN view of the above discussion I find that the petitioner has suffered on account of the illegal action on the part of the respondent No. 1 and has further suffered at the hands of the Additional City Sessions Judge on account of the misconception of law. This Special Criminal Application therefore must be allowed. . ( 21 ) IN the result this Special Criminal Application is allowed. The judgment and order of the Additional City Session Judge dated 6-1-1983. in Criminal Application No. 272 of 1982 is hereby quashed and set aside with the result that the judgment and order of the Executive Magistrate dated 4-10-1982 in Chapter Case No. II 32/81 stands restored. ( 22 ) RULE is made absolute accordingly. Rule made absolute. .