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2008 DIGILAW 147 (GAU)

Sukurun Nessa v. Tajamulali Barbhuiya

2008-02-20

H.N.SARMA

body2008
JUDGMENT H.N. Sarma, J. 1. Heard Mr. R. Dev, learned Counsel for the Petitioners. None appears for the Respondents inspite of service of notice. 2. The grievance raised by the Petitioner in this petition is against an order dated 7.4.05 passed by the learned Executive Magistrate in Misc. Case No. 258m/04. The aforesaid order is quoted in its entirety. 07.04.05. Parties present. Perused the entire Case Record carefully in detail. I find that parties are filing one after another case. It appears from the documents available in the C/D that both parties are claiming the D/L as their inherited land. I, therefore, feel that this case is of entirely civil nature and the matter can be solved in the Civil Court for permanent solution. The aggrieved party may seek redressal in the appropriate forum. The attachment order remain in force till finalisation of the dispute by competent Court since there exists apprehension of breach of peace and tranquility in the locality. Auction money will be released after finalisation of Civil Case. With above observation, this case is disposed off. Police is directed to keep vigil over the D/O. Inform all concerned. Sd/- M. Haque, E.M. 3. Against the aforesaid order, a Criminal Revision No. 23(2)/05 was filed by the first party/Respondent but the same was dismissed on 5.6.06 by the learned Sessions Judge, Cachar. At para 6 and 7 of the judgment, the learned Sessions Judge held as follows: 6. Now, the same party through another brother has filed the present case. When all the facts of the earlier case was brought to the notice of the learned Executive Magistrate, the learned Executive Magistrate found that it was misuse of the process of the Court and hence he dropped the proceeding directing the parties to move the Civil Court for permanent solution. 7. There is clear facts from the petition and the written statement of the parties that there is a clear dispute of Civil nature relating to the disputed land. Moreover, the earlier suit was withdrawn by the same party on the plea that they were going to move the Civil Court. Accordingly, upon above finding and opinion, the learned Executive Magistrate dropped the proceeding under Section 145 Code of Criminal Procedure. 4. Moreover, the earlier suit was withdrawn by the same party on the plea that they were going to move the Civil Court. Accordingly, upon above finding and opinion, the learned Executive Magistrate dropped the proceeding under Section 145 Code of Criminal Procedure. 4. The grievance of the Petitioner/second party is that after dropping of the case by the learned Magistrate, the first has not yet approached the Civil Court though he made such submission before the learned trial Court to that effect and the effect of the order of attachment is continuing in view of the order dated 7.4.05 passed by the learned Magistrate. The learned Counsel further submits that earlier case on the same disputed land filed by the another brother was withdrawn upon receipt of the necessary report to the effect that the present Petitioner is in possession of the disputed land and also that he will file a fresh case or approach the Civil Court but the same has not been done causing inconvenience and hardship to the Petitioner. Learned Counsel submits that the learned Sessions Judge while disposing the criminal revision also missed this vital aspect of the matter and the attachment order is continuing indefinitely. 5. The materials available on record disclose that the proceedings drawn up under Section 144 Code of Criminal Procedure is relating to the disputed land measuring 2 Bigha 3 Katha 12 Chatak in Case No. 258m/04 and for attachment under Section 146 Code of Criminal Procedure. The Respondent/first party on certain point time approached the Civil Court for getting appropriate relief. The learned Executive Magistrate also held that the matter in dispute is entirely of civil nature and it can be solved in the Civil Court for permanent solution. The learned Sessions Judge also found that the continuation of the proceeding would be a misuse of the process of the Court and accordingly the learned Magistrate rightly dropped the proceeding. But the order of attachment is still continuing as the first party/Respondent is not approaching the trial Court, if he is aggrieved by the action of the present Petitioner. The learned Sessions Judge also found that the continuation of the proceeding would be a misuse of the process of the Court and accordingly the learned Magistrate rightly dropped the proceeding. But the order of attachment is still continuing as the first party/Respondent is not approaching the trial Court, if he is aggrieved by the action of the present Petitioner. The order passed by the learned Magistrate as well as by the learned Sessions Judge clearly disclose that the dispute involved pertains to civil dispute and in that view continuation of the proceeding would be abuse of the process of law and in that event it would have been just and proper for the learned Magistrate to pass an order restricting himself and directing the first party/Respondent to approach the Civil Court within a certain period without allowing to continue the attachment order inasmuch as if the first party/Respondent requires any such urgent interim protection from the Court he would very well be entitled to obtain such an order from the Civil Court by way of injunction. That was not done in the instant case leading to such a situation by which the Petitioner is being deprived of enjoyment of his right, due to continuation of the attachment order. From the impugned orders it appear that likelihood of the breach of peace is not continuing till now. 6. In view of the above discussion, this petition is allowed to the extent that the order of attachment which was directed to be continue by the learned Executive Magistrate vide order dated 7.4.05 would come to an end after expiry of the period of two weeks from today and within this period of two weeks, the Respondent/first party would be entitled to approach the Civil Court and may obtain the necessary order of injunction if he can make out such a case. After expiry of the aforesaid period, the attachment order will have no effect. 7. Revision petition stands allowed to the extent as indicated above.