R C PATUCK Vs. FATIMA A KINDASA

JUDGEMENT

(1.) This Special Leave Petition has been filed by the petitioner against the Judgment of the High Court of Bombay dated 9-7-1996 dismissing the Writ Petition (Criminal) No. 540/1996. The High Court refused to quash the order of the learned Chief Metropolitan Magistrate, 4th Court, Girgaum dated 26-4-1996. The learned Chief Metropolitan Magistrate dismissed the application of the petitioner filed under Section 145 of the Code of Criminal Procedure on the ground that even as per the case of the petitioner, she was out of possession for a period (of) more than two months before the date of the preliminary order of the Magistrate dated 16-3-1993 passed under Section 145 (1). The Court pointed out that as per the case of the petitioner, she had been out of possession from November, 1992 and, therefore, she could not take advantage of the proviso to sub-clause (4) of Section 145. This order is challenged in this Special Leave Petition.

(2.) The brief facts of the case are as follows:- The petitioner is aged 75 years and is staying in one half of a house comprising 2500 sq. ft. in Malabar Hills, Bombay. She says that the first respondent approached her in November, 1991 for temporary accommodation to stay for two or three months. Subsequently the second respondent, who is said to be the husband of the 1st respondent joined her and both of them were not willing to vacate premises i.e. the 2500 sq.ft. on the ground floor of the house. Petitioner is in possession of the remaining 2500 sq. ft. It is the specific case of the petitioner that in the second week of November, 1992 when the petitioner was out of station for sometime, the respondent Nos. 1 and 2 with the help of some other persons constructed a cement wall in the suit premises and divided the ground floor consisting of 5000 sq.fit. into half and half and that this amounted to illegal occupation of 2500 sq.ft., i.e. one half of the property, by the respondents Nos. 1 and 2. It is stated that on 21/22-2-1993 the respondents threatened the petitioner with dire consequences and, therefore, petitioner gave a complaint to the Inspector of Police, Gamdevi, Bombay on 26-2-1993. Thereafter the petitioner filed an application under Section 145 of the Cr. P.C. on 9-5-1993 before the learned Metropolitan Magistrate, 14th Court, Girgaum seeking restoration of possession of the 2500 sq.ft. on the ground floor.

(3.) The petitioner also refers to the filing of a civil suit for declaration and injunction, namely, RAD No.346/1992 by the respondents claiming tenancy rights on the basis of an illeged tenancy agreement and cheques on which the signatures of the petitioner were allegedly forged. It is stated that the Court granted an interim order initially in favour of the respondents but ultimately the same was vacated and the said order was confirmed in appeal holding that there was no prima facie proof of tenancy. It is also stated that in that case the documents relied upon by the second respondent were held to be prima facie forged documents. The petitioner also states that a complaint was made by the petitioner against the respondents for cheating and a case was registered and Writ Petition bearing No.973/1993, dated 27-7-1993 was filed by the respondents for quashing the same.