SHANTI KUMAR PANDA Vs. SHANKUNTALA DEVI

JUDGEMENT

(1.) Shanti Kumar Panda, the appellant before us lodged a complaint with Station Officer, Line Bazar, Jaunpur, whereupon the police filed a report before the Sub-Divisional Magistrate (S.D.M.) Sadar, Jaunpur, who made a preliminary order under S. 145(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short) recording his satisfaction that a dispute, likely to cause a breach of the peace, exists concerning the shop, which is the subject-matter of dispute (hereinafter referred to as the shop, for short) between the appellant and one Kamta Prasad (not a party in this appeal) and requiring both of them to attend his Court and put in the written statements of their respective claims as respects the fact of actual possession of the shop. The learned S.D.M. also found that the case was one of S.D.M. also found that the case was one of emergency and, therefore, he directed the shop to be attached under S. 146(1) of the Code. The preliminary order under S. 145(1) and the order of attachment under S. 146(1) were both made on 16-5-1992. Kamta Prasad appeared and stated that he had nothing to do with the shop and the owner of the property, who was also in possession thereof, was one Shakuntala Devi (respondent No.1 herein, hereinafter referred to as the respondent, for short). Kamta Prasad also submitted that the appellant had deliberately not impleaded the respondent as a party to the proceedings as he was in collusion with the police and wanted to deprive Shakuntala Devi of her lawful possession over the shop. Shakuntala Devi, on becoming aware of the proceedings (obviously on the information provided by Kamta Prasad), moved an application before the learned S.D.M. stating that she was a party interested in the subject-matter of dispute and as she was in peaceful possession of the shop, she ought to have been joined as party to the proceedings and as that not done, she prayed for her impleadment and an opportunity of being heard.

(2.) The learned S.D.M. kept the application filed by the respondent pending till 6-7-1992 when the proceedings were directed to be disposed of by a final order. No opportunity was allowed to the respondent to join in the proceedings and to file her own claims as to the possession of the shop. The learned S.D.M. held that the appellant was in possession over the disputed shop on the date of the passing of the preliminary order as also in the two months prior thereto. Having made that declaration the learned S.D.M. directed that until the rights were determined by the competent Court, the shop shall be released in favour of Shanti Kumar Panda, the appellant.

(3.) Shakuntala Devi, the respondent and Kamta Prasad both preferred revision petitions against the order of the learned S.D.M. By order dated 27-2-1993 the learned Additional Sessions Judge directed the revision to be dismissed by holding that the order of the learned S.D.M. did not suffer from any infirmity. Both these orders were put in issue by the respondent and Kamta Prasad by filing a petition under Art. 226 of the Constitution in the High Court which too was dismissed on 6-12-1993. One of the reasons which has prevailed with the High Court for dismissing the petition is that the respondent had already approached the Civil Court and the jurisdiction of the Civil Court having been invoked, which was an efficacious alternative remedy available to the respondent, it was not appropriate for the High Court to entertain the writ petition and exercise its jurisdiction under Art. 226 of the Constitution.