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1995 DIGILAW 171 (ALL)

SURAIYA BEGUM v. MUSHEER AHMAD

1995-02-07

O.P.PRADHAN

body1995
O. P. PRADHAN, J. ( 1 ) THIS revision is directed against the order dated 3-9-1990 passed by the Additional City Magistrate II, Lucknow in Case No. 33 of 1990 under Section 145, Cr. P. C. Police Station Wazirganj, Lucknow. ( 2 ) BRIEFLY speaking, the facts giving rise to this revision are that the revisionist had moved an application dated 10-4-1989 in the court of Additional City Magistrate, II whereupon the report of the police station was called for. The Station House Officer, P. S. Wazirganj submitted his report dated 20-4-1989 saying that late Mohammad Hashim who was the husband of the revisionist, had taken shop No. 55, Jhaulal Pul, Gwynne Road, Lucknow on rent in 1955 and was carrying on tailoring work in the shop, that he died about twelve years ago and after his death, the revisionist was getting the tailoring work done through the opposite party No. 1. He further reported that the work of Musheer Ahmad not having been found satisfactory by, the revisionist, he (Musheer Ahmad) was removed from the shop. The S. H. O. also reported that presently Musheer Ahmad has been carrying on the work of tailoring since October, 1982 and he has paid the rent at the rate of Rs. 300 p. m. up to Sept. 1986 to the revisionist. Since the rent was sought to be enhanced by the revisionist, a dispute arose between the revisionist and the opposite party No. 1 whereupon the opposite party No. 1 began to deposit rent in the court of Munsif Havali, Lucknow. According to the S. H. O. , there is dispute between the two on this score and an apprehension of breach of peace exists between them. A preliminary order under Section 145 (1), Cr. P. C. was passed on 22-4-1989 by the Additional City Magistrate. He also directed attachment of the shop under Section 146 (1), Cr. P. C. but this order of attachment was later on quashed by this court. The revisionist as also the opposite party No. 1 put in their written statements and also adduced their evidence, oral and documentary before the learned Magistrate. On a consideration of the same the learned Magistrate concluded that the opposite party No. 1 has been in possession of the shop since Sept. The revisionist as also the opposite party No. 1 put in their written statements and also adduced their evidence, oral and documentary before the learned Magistrate. On a consideration of the same the learned Magistrate concluded that the opposite party No. 1 has been in possession of the shop since Sept. 1988 and, therefore, he must be held to be in possession two months next before the date of preliminary order and as such the learned Magistrate restrained the revisionist from interfering with the possession of the opposite party No. 1 till the competent court passes a suitable order in respect of this shop. Dissatisfied with this order of the learned Magistrate, Suraiya Begum has preferred this revision. ( 3 ) I have heard learned counsel for the revisionist as also the opposite party No. 1 and the learned Government Advocate. The lower court record has also been perused by me. ( 4 ) IT has been contended by the learned counsel for the revisionist that the learned Magistrate has ignored the material evidence in the case and has misread the evidence adduced before him and, therefore, the impugned order passed by him is manifestly illegal and improper. The learned counsel for the revisionist pointed out that the learned Magistrate has based his order on the alleged statement of the counsel for the revisionist that the opposite party No. 1 had forcibly taken possession over the shop in Sept. 1988. In this connection reference has also been made to the statement allegedly given by Sarafraj P. W. 2 saying that the opposite party No. 1 had taken forcible possession in Sept. 1988. Learned counsel for the revisionist rightly contended that there was other evidence available on record which has not been considered and taken into account by the learned Magistrate while recording his finding about possession. The learned counsel for the opposite party No. 1 supported the impugned judgment and order of the learned Magistrate. ( 5 ) I have waded through the evidence, oral and documentary adduced by the parties and the impugned judgment and order of the learned Magistrate. The learned counsel for the opposite party No. 1 supported the impugned judgment and order of the learned Magistrate. ( 5 ) I have waded through the evidence, oral and documentary adduced by the parties and the impugned judgment and order of the learned Magistrate. It is true that the learned Magistrate was not expected to write a detailed judgment discussing each and every piece of documentary and oral evidence but it was incumbent upon the learned Magistrate to have taken into account the impact of the material documents and the oral evidence adduced by the parties. The learned Magistrate has rested content by saying that learned counsel for the revisionist stated before him that the opposite party No. 1 had taken forcible possession in Sept. 1988 and that the revisionist was in possession prior to Sept. 1988. This assertion of the learned Magistrate was strenuously and vehemently challenged by the learned counsel for the revisionist. Besides this, the learned counsel for the revisionist also pointed out that there is no admission made by Sarafraj P. W. 2 during his evidence to the effect that opposite party No. 1 had taken forcible possession in Sept. 1988. This part of the contention raised by the learned counsel for the revisionist appears to be well founded since there is no such clear admission in the statement on oath of Sarafraj P. W. 2. It is noteworthy that besides the revisionist, there was the statement on oath of Mohammad Idris, Sarafraj Husain as also that of Dr. R. Bose in support of the case of the revisionist. Besides the statement on oath of opposite party No. 1 he had also examined on oath Shambhu Dayal and L. P. Chaurasiya in support of his case. Several documents, mostly rent receipts had been filed from either side and, therefore, this oral and documentary evidence had to be taken into consideration properly by the learned Magistrate before a categorical finding regarding the possession over the shop could be recorded. I am constrained to find that the learned Magistrate has adopted a short cut method of disposing of the case by saying that the learned counsel for the revisionist had stated that the opposite party No. 1 had taken forcible possession in Sept. 1988 and further that Sarafraj Husain who was examined by the revisionist had also stated likewise. I am constrained to find that the learned Magistrate has adopted a short cut method of disposing of the case by saying that the learned counsel for the revisionist had stated that the opposite party No. 1 had taken forcible possession in Sept. 1988 and further that Sarafraj Husain who was examined by the revisionist had also stated likewise. I feel persuaded to hold that the learned Magistrate has ignored material evidence and has also misread the evidence of Sarafraj Husain. In the circumstances, I am not inclined to uphold the impugned order passed by the learned Magistrate. The case has to be remanded to the learned Magistrate for redecision in accordance with law. ( 6 ) IN the result, this revision is accepted and the impugned order dated 3-9-1990 passed by Additional City Magistrate II, Lucknow in Case No. 33 of 1990, under Section 145, Cr. P. C. is hereby set aside. The case is remanded to the learned Magistrate to decide it afresh. He will carefully take into consideration the evidence, oral and documentary already adduced by the parties and thereafter decide the case afresh. Parties are directed to appear in the court of Additional City Magistrate II, Lucknow on 20-3-1995. ( 7 ) LET the record of the court below be sent back within fifteen days positively. Petition allowed. .