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1992 DIGILAW 1106 (ALL)

ANIRUDH NATH MISHRA v. DISTRICT JUDGE GORAKHPUR

1992-08-24

SURYA PRASAD

body1992
SURYA PRASAD, J. The facts emerging from the evidence on record briefly stated are that one Gaya Prasad had three sons including Tribhuwan Lal and Vindhyachal Srivastava. Tribhuwan Lal Srivastava had his son named Shriman Lal Srivastava, who was issueless. Smt. Savitri Devi was his wife. It is alleged that Tribhuwan Lal Srivastava executed a Will dated 29. 8. 89 in favour of his nephew Ram Asrey Srivastava son of Vindhyathal Srivastava in respect of the House No. 141/261 situated in Mohalla Andhyaribagh, police station Tewanpur, District Gorakhpur. Smt. Savitri Devi is, on the other hand, alleged to have executed a Mukhtarnama in favour of Atul Kumar Srivastava in respect of the said house. The station House Officer of police station Tewaripur submitted a report dated 12. 1. 91 to the City Magistrate, Gorakhpur mentioning therein, inter alia, that there was apprehen sion of breach of peace between the first party Ram Asrey Lal and the second party Atul Kumar Srivastava over the possession of the aforesaid House No. 141/261. Consequently the City Magistrate passed an order under Section 145 (1), Cr. P. C. Subsequently, Atul Kumar Srivastava moved an application to the effect that there was apprehension of breach of peace between the aforesaid parties. The police also submitted its report dated 13. 5. 91 to the effect that there could be breach of peace at any time. Therefore, the City Magistrate after perusing the police report dated 12. 1. 91, the application moved by Atul Kumar Srivastava and the police report dated 13. 5. 91 arrived at the conclusion that the house in dispute should be given in the Supurdgi of some impartial Supurdar. Conse quently he directed vide his order dated 13. 6. 91 to the S. O. , P. S. Tewaripur to appoint some one as Supurdar of the house. In compliance with that order the S. O. appointed Digya Vijhai Nath as Supurdar and submitted his report dated 24. 8. 91 to that effect. Digya Vijhai Nath being Supurdar started misusing his position by changing the nature of the house in dispute and putting his brother Anirudh Nath Misra in possession over it. Not only this but a nursing home was also to be opened therein. Consequently the police of the police station Tewaripur reported the matter to the City Magistrate on 5. 12. 91, whereupon the City Magistrate vide his order dated 5. 12. Not only this but a nursing home was also to be opened therein. Consequently the police of the police station Tewaripur reported the matter to the City Magistrate on 5. 12. 91, whereupon the City Magistrate vide his order dated 5. 12. 91 changed Digya Vijai Nath and directed that the house in dispute should remain in the Supurdgi of the S. O. , P. S. Tewaripur himself until the question of possession was decided by a competent Court. That order was complied with by the police, as it is clear from its report dated 9. 12. 91 Anirudh Nath Misra filed a Cr. Revision No. 4 of 1991 Anirudh Nath Misra v. State of U. P. and others in the Court of Sessions Judge, Gorakhpur for setting aside the order dated 5. 12. 1991. 2. The incharge Sessions Judge, Gorakhpur vide his order dated 3. 1. 92 ordered for the opening of the lock put on the nursing home. 3. Ram Asrey Srivastava filed in the Honble Court at Crl. Misc. Application No. 530 of 1992 Ram Asrey Srivastava v. State of U. P. and others - respondents for quashing all the proceedings of Cr. Revision No. 4 of 1991 Anirudh Nath Misra v. State of U. P. and others including the order dated 3. 1. 92 passed therein. This Court vide its order dated 9. 1. 92 stayed the operation of the order dated 3. 1. 92. 4. The Sessions Judge, Gorakhpur vide his order dated 10. 1. 92 recalled the order dated 3. 1. 92 passed by the Incharge Sessions Judge in the aforesaid Cr. Revision No. 4 of 1991. 5. Anirudh Nath Misra filed a Criminal Miscellaneous Petition No. 743 of 1992 under Section 482, Cr. P. C. Anirudh Nath Misra v. State of U. P. and others in this Court for the setting aside of the order dated 10. 1. 92 and the order dated 3. 1. 92. This Court vide its order dated 17. 1. 92 stayed further proceedings in Criminal Revision No. 4 of 1991 Anirudh Nath Misra v. State of U. P. and others. 6. Atul Kumar Srivastava filed a Criminal Revision No. 238 of 1991 (Atul Kumar Srivastava v. State of U. P. and others) in the Court of Sessions Judge against the order dated 5. 12. 91 passed by the City Magistrate. 6. Atul Kumar Srivastava filed a Criminal Revision No. 238 of 1991 (Atul Kumar Srivastava v. State of U. P. and others) in the Court of Sessions Judge against the order dated 5. 12. 91 passed by the City Magistrate. This Criminal Revision and the Criminal Revision No. 4 of 1991 Anirudh Nath Misra v. State of U. P. and others were connected with each other and were disposed of by the Sessions Judge vide his order dated 5. 5. 92. He allowed both the Criminal Revisions while setting aside the order dated 5. 12. 92 and directing Digya Nath Misra to continue to act as receiver. 7. Anirudh Nath Misra filed a Civil Misc. Writ Petition No. 19722 of 1992 Anirudh Nath Misra v. District Judge, Gorakhpur and others for the issue of writ, order or direction in the nature of mandamus commanding the respondent No. 2 to open the lock and that in the nature of certiorari quashing the order of the Magistrate dated 5. 12. 91 and 5. 5. 92 directing the respondent No. 2 to ensure the functioning of the nursing home till 17. 7. 92 under the supervision of the Supurdar already appointed. 8. Ram Asrey Srivastava filed a Criminal Revision No. 698 of 1992, (Ram Asrey Srivastava v. State of U. P. and others) in this Court for the setting aside of the order dated 5. 5. 92 passed by the Sessions Judge in Criminal Revision No. 238 of 1991 and Criminal Revision No. 4 of 1991. This Court passed an order dated 12. 5. 92 staying the operation of the order dated 5. 5. 92 till 2nd September, 1992. 9. Anirudh Nath Misra filed a Criminal Misc. Application No. 7178 of 1992 under Section 482, Cr. P. C. (Anirudh Nath Misra v. City Magistrate and others) in this Court for quashing of the proceedings under Section 145, Cr. P. C. State v. Ram Asrey and State v. Atul Kumar Srivastava pending in the Court of the City Magistrate, Gorakhpur and for the opening of the lock put on the nursing home. This Court passed the order dated 26. 6. 92 directing the respondent No. 1 to open the lock of the Nursing Home. 10. Ram Asrey Srivastava filed a Criminal Revision No. 883 of 1992 Ram Asrey Srivastava v. State of U. P. and others, against the order dated 20. 6. This Court passed the order dated 26. 6. 92 directing the respondent No. 1 to open the lock of the Nursing Home. 10. Ram Asrey Srivastava filed a Criminal Revision No. 883 of 1992 Ram Asrey Srivastava v. State of U. P. and others, against the order dated 20. 6. 92 passed by the City Magistrate in case No. 57 of 1992 under Sertion 145 Cr. P. C. (State v. Ram Asrey and others) whereby seeking direction from this Court for opening the lock of the accommoda tion in dispute. 11. It is not out of place to mention that Anirudh Nath Misra filed a Civil Suit No. 1418 of 1991 (Anirudh Nalh Misra v. Atul Kumar Srivastava) in respect of the disputed accommodation. That suit appears to have been compromised as is clear from the copy of the compromise decree filed. It is further alleged that another Civil Suit No. 2028 of 1991 is pending. 12. A perusal of the record would show that Anirudh Nath Misra has not disclosed anywhere on what date he came in possession over the disputed accommodation, on what basis and at whose instance. He has also not disclosed anywhere on what date he actually opened the nursing home. He is real brother of Digya Vijai Nath Misra, who was initially appointed as Supurdar of the disputed accommodation. It was alleged that he misused his position as Supurdar. 13. The question of title is determined by the competent civil Court only. The civil Court has jurisdiction to pass an ad-interim injunction, to appoint receiver etc. and to finally decide the question of title and possession. This cannot be disputed. The police report on the point of possession cannot be perused. The police has to maintain only law and order. 14. Abuse of the process of the Court has already occurred in the instant case. Co-tradictory and inconsistent orders have also been passed. The learned Session Judge recalled the order passed by the Incharge Sessions Judge dated 3. 1. 92. The orders already passed in all the above cases/proceedings create confusion in one way or the other. No final order has been passed by the City Magistrate in the matter of possession over the disputed accommodation. Anirudh Nath Misra does not appear to have been a party to the proceedings initiated under Section 145, Cr. 1. 92. The orders already passed in all the above cases/proceedings create confusion in one way or the other. No final order has been passed by the City Magistrate in the matter of possession over the disputed accommodation. Anirudh Nath Misra does not appear to have been a party to the proceedings initiated under Section 145, Cr. P. C, although in fact he appears to be kneenly interested in the accommodation in suit. The compromise decree in the Civil Suit appears to have been obtained behind the back of Ram Asrey Srivastava. There is multiplicity of suits/proceedings in the instant case. There is possibility of multiplicity of proceedings in future as well. The parties have already been put to unnecessary harass ment for a pretty long time and yet no final order about the possession has been passed in favour of one party or the other. 15. Taking into consideration all the facts and circumstances of the case and the pendency of the Civil Suit No. 2028 of 1991 and the possibility of the parties being put to harassment in future, I arrive at the conclusion particularly in the interest of justice that the proceedings under Section 145, Cr. P. C. should be quashed. The proceedings under Section 145, Cr. P. C. giving rise to all the aforesaid cases, are consequently quashed and all the earlier orders passed therein stand vacated. The parties are, however, directed to work out their right in the civil Court. From the point of view of the safety and protec-ion to the accommodation in question and the articles lying therein, they (parties) are further directed to maintain status quo over the disputed accommodation until the order regarding the possession etc. is passed by the Civil Court. It is made explicitly clear that this order will not put any bar in any manner what so ever to the Civil Court proceeding further to decide the aforesaid civil suits on merits in accordance with law. All the Criminal Revisions, miscellaneous applications, miscellaneous case and writ petition stand merged in this order. All the cases referred to above stand disposed of accordingly. Petition disposed off. .