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Madhya Pradesh High Court · body

2018 DIGILAW 1032 (MP)

Ritu Singhal v. Mukul Verma

2018-12-18

ANAND PATHAK

body2018
ORDER 1. The petitioners have preferred this petition under section 482 of the CrPC against the orders dated 9.10.2018 passed by IX Additional Sessions Judge Gwalior in Cr. Revision No. 299 of 2018 preferred by the petitioners whereby, the revision preferred by the petitioners has been dismissed and the order of cognizance taken by S.D.M Court dated 1.8.2018 is affirmed. 2. Precisely stated, facts of the case are that the petitioners and respondents are owners and in possession of a common building in which ground floor shop at More Bazar Lashker Gwalior is of the ownership of the respondents and first floor over it, is of ownership of the petitioners. It is submitted by the petitioners that since building was old, both the parties decided to get it dismantled and thereafter to reconstruct the building. 3. After demolition of the building it was the duty of the respondents to construct the ground floor and thereafter the petitioners had to construct their building over the ground floor. In pursuance thereto, (as per oral agreement), the petitioners demolished their part of the building but the respondents did not follow the oral agreement and continued with the in-habitation of the shop (by running Chemist shop) but because of the demolition of the house in question by the petitioners, the respondents preferred an application under section 133 of the CrPC before S.D.M with the submission that the petitioners have demolished their building and demolition caused seepage of water in the shop and sought a direction against the petitioners for repairing of roof. 4. The S.D.M passed an order on 1.8.2018 whereby, cognizance has been taken in this regard. A revision was preferred against the order of cognizance taken by the S.D.M but said revision has been dismissed. Therefore, the petitioners preferred this petition. 5. Learned counsel for the petitioners submits that a perusal of the application under section 133 of the CrPC reveals that no case for public nuisance is made out still the Court below has taken cognizance and revisional Court affirmed it. The S.D.M has no authority and jurisdiction to proceed with the application under section 133 of the CrPC because, it is not the domain of the S.D.M. Admittedly, the property in question is not in public place, therefore, the Court below committed error. The S.D.M has no authority and jurisdiction to proceed with the application under section 133 of the CrPC because, it is not the domain of the S.D.M. Admittedly, the property in question is not in public place, therefore, the Court below committed error. Learned counsel for the petitioners also relied upon the judgments of this Court in Babulal v. Vishnu Das 1976 MPWN 69 and Sunnoolal v. Smt. Jankibai 1995(1) MPWN 184 to submit that when the place in question is not a public place, therefore, cognizance was wrongly taken by S.D.M. 6. On the other hand, learned counsel for the respondents opposed the prayer and submits that the contents of the application indicate that the petitioners have dismantled the first floor resulted into causing deep prejudice to the respondents as in the said shop (chemist shop), the members of public visit and therefore, it is a public place. It is further submitted that looking to the contents of the application and scope of section 133 (1) (b) and (d) of the CrPC, case is made out. 7. Hence, prayed for dismissal of this petition. Heard learned counsel for the parties and perused the documents appended thereto. 8. Chapter X of the CrPC deals with the maintenance of public order and tranquility in which section 133 comes in Chapter B regarding nuisance. The scope of section 133 of the CrPC appears to be in respect of those places which are to be regulated in public sphere. The expression "public place" connotes an access to the place by right, permission or use of the public. The controversy between the parties appeared to be in respect of a place which is owned and possessed by the parties in personal capacity which cannot be termed as `public place', else disputes of all the shops and of rented premises/eviction of tenant etc would come in the domain of `public nuisance'. 9. Therefore, revisional Court erred in coming to the conclusion in treating the place to be a `public place'. It is a private dispute inter se between the parties and is to be settled before appropriate forum in accordance with law. 10. In the considered opinion of this Court, section 133 of the CrPC cannot be employed to settle such type of disputes. It is a private dispute inter se between the parties and is to be settled before appropriate forum in accordance with law. 10. In the considered opinion of this Court, section 133 of the CrPC cannot be employed to settle such type of disputes. The S.D.M exceeded it's jurisdiction to take cognizance in respect of the dispute which is private in nature and this is primarily between the petitioners and the respondents inter se. The revisional Court further erred in affirming the said cognizance while giving stamp of approval. 11. Resultantly, the revisional order dated 9.10.2018 and the order of cognizance dated 1.8.2018 passed by S.D.M Gwalior are hereby set-aside. The petition stands allowed and disposed of. P.C. Chandil for petitioners; R.K. Sharma with Mahendra Chudhary for respondent.