RAM WATI Vs. STATE

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure is directed against the order of the Sub-divisional Magistrate, New Delhi, made on April 22, 1983 attaching the property in dispute under Section 146(1) of the Code oxf Criminal Procedure and for the temporary restoration of possession of the property to the petitioner until the decision of the Court with regard to the actual possession of the property at the material time.

(2.) Premises bearing No. 1140/47, D.D.A. Flats, Kalkaji, New Delhi was allotted to Smt. Sharda, respondent No. 2. She has been staying in Karachi alongwith her husband, who works in the Indian Embassy there. Smt. Sharda had apparently left the premises in the care of one Jagbir, who resides in another premises in the vicinity. It is a common case that Jagbir let it out to Smt. Ramwati, the petitioner and Ramwati and the other members of the family, includi her husband, had been in peaceful possession of the premises for the last 3 years and continued to be in such possession until March 27, 1983, when a dispute is said to have arisen as to the possession of the premises. According to the petitioner, Jagbir, Smt. Sharda and a number of other persons made an attempt to forcibly throw her out of the premises alongwith her belongings and the matter was reported to the Police. When the Police came on the scene, they found part of the belongings of the petitioner outside the premises on the road. A claim was made by Smt. Sharda and Jagbir that the petitioner had voluntarily surrendered the possession, which was naturally denied. The Police registered a case under Sections 452/448/31 IPG and arrested Jagbir and one Ramji Lal, his associate. The Police also made a report u/s 1+5 Cr. P.G. to the Sub-divisional Magistrate concerned. It appears that notwithstanding the arreat of Jagbir and Ramji Lal, the petitioner was not allowed to re-enter the premises and the premises were locked by Smt. Sharda, respondent and the Police put on the lock a seal, pending the order of the Court. Meanwhile, the Sub-divisional Magistrate made a preliminary order u/s 145(1) of the Code on April 15, 1933 directing both the parties to appear in the Court and file their respective written statements in support of their claims as to the actual possession of the premises by April 26,1983. It further appears that on or before April 18, 1983, the petitioner who had been dispossessed had been squatting outside the premises and was advised to break the seal and lock and re-enter the premises pursuant to the petitioner's purported right of re-entry. Pursuant to this re-entry, respondent filed an application before the Sub-divisional Magistrate on April 19, 1983 making a grievance of the forcible entry by the petitioner in the premises and claiming that a situation of grave emergency had arisen justifying the attachment of the property. The Sub-divisional Magistrate called for the Police report and on the receipt of the Police report, made an order on April 22, 1983 attaching the property u/s 146(1) of the Code of Criminal Procedure on the ground that a grave emergency had arisen justifying the attachment. When the order was made, neither party was present before the learned Magistrate. Meanwhile, the petitioner moved the Additional District & Sessions Judge, challenging the validity of the preliminary order and by an order made on April 22, 1983, the Additional Sessions Judge stayed the proceedings before the Sub-divisional Magistrate. At the same time, the petitioner moved the Civil Court for a declaration that the petitioner was entitled to an unfettered right, use and occupation of the premises and to restrain the respondents from interfering in the petitioner's possession and enjoyment of the same. The Civil Court, by an order made on April 22, 1983 restrained the respondent from dispossessing the petitioner forcibly.

(3.) It is urged on behalf of the Petitioner that when the order u/s 146(1) of the Code of Criminal Procedure was made on April 22, 1983 the learned Additional Sessions Judge had already stayed the proceedings u/s 145 of the Code of Criminal Procedure before the learned Magistrate earlier the same day, and that subsequent proceedings betore Magistrate were, therefore non-est. It is further urged that when the learned Magistrate attached the property on April 22, 1983, the Civil Court injunction restraining the respondent from interfering with the petitioner's possession made earlier the same day was also subsisting. It was urged on behalf of the petitioner that the stay of proceedings by the Additional Sessions Judge and the restraint order made by the Civil Court were within the knowledge of the respondent and that is why neither the respondent nor her counsel appeared before the learned Magistrate on April 22, 1983, when he made the impugned order. A further contention was raised on behalf of the petitioner that the petitioner had been in peaceful possession of the premises for over 3 years and had been forcibly dipossessed pursuant to a conspiracy to which the respondent and Jagbir, as indeed, their associates were parties and when after the arrest of Jagbir and Ramji Lal the petitioner re-entered the premises pursuant to her right of re-entry and got the proceedings u/s 145 stayed and obtained arestraint order against the respondent, she had been outwitted by the respondents by getting an ex-parte order under Section 146(1) attaching the property not only in violation of the stay order but also to frustrate the object of an order made by a Civil Court protecting the lawful possession of the petitioner. A grievance was also made on behalf of the petitioner that the petitioner had been a victim of a high-handedness on the part of the respondent and the toughs, whose services had been procured by the respondent, with a view to illegally deprive the petitioner of her lawful possession. It was further urged on behalf of the petitioner that in any view of the matter; it was reasonable and proper that in pending determination of the various matters u/s 145 of the Code, as also the petitioner's revision petition before the learned Additional Sessions Judge and the proceeding in the Civil Court, the possession of the premises is temporarily restored to the petitioner on such conditions as may be considered reasonable.