K K ARORA Vs. STATE

JUDGEMENT

(1.) This is yet another case in which a purely civil dispute between the parties was taken to a criminal court under Section 145 of the Code of Criminal Procedure because of an alleged precipitate action by one of the parties to oust another, otherwise than in due course of law, to by pass the cumbersome and prolix civil process.

(2.) The premises in dispute has admittedly been in the occupation of onee Ram Sarup during the last many years as a tenant and/or a licensee under the Custodian of Evacuee property. Ram Sarup was apparently residing and possibly also carrying on business in the premises. Baij Nath, father of respondent No. 2, claims to have purchased the property, of which the premises in dispute forms a part, from the Rehabilitation Department and contends that the Department had directed Ram Sarup to attorn to him. It is, however, claimed that Ram Sarup nevertheless never paid the arrears of rent to Baij Nath. Baij Nath, however, admittedly took no step to evict Ram Sarup on that ground. Ram Sarup died on October 24, 1982 and was. survived by a married daughter, named Gomti Devi. Gomti Devi has been living with her husband in a separate house, it appears that on the death of Ram Sarup, Gomti Devi occupied the premises in dispute apparently claiming to be the sole surviving legal representative of Ram Sarup, a circumstances which was obviously not very palatable to Baij Nath. his son, Netar Prakash, respondent No 2, and the other members of the family, who would naturally be keen to get rid of Gomti Devi on the ground that Ram Sarup left no heritable estate in the premises in dispute, apart from the movables in the property, to which Gomti Devi could possibly lay her claim. It is significant that on April 26, 1983. a suit was filed against Gornti Devi and her husband by Baij Nath through his son, respondent No. 2 to recover possession of the disputed premises from them on the ground that their possession was "unauthorised" and "illegal". The suit is still pending.

(3.) It is claimed by K.K. Arora, an Advocate of Delhi, petitioner in the present petition under Section 482 of the Code, that the possession of the 'property in dispute was handed over to him by Gomti Devi under an arrangement, which was described as the "sale" of the property in his favour, of a consideration of Rs. 10,000.00 . The necessary documentation, on the basis of which he makes the claim, purports to be of April 13, 1983. i.e. the date on which he claims to have been put in physical possession of it. The document is based on the claim as if 'Ram Sarup had any proprietory interest in the premises. He further claims that a power of attorney was also executed on the said date in his favour, by Gomti Devi, to' enable him to perfect his title to the premises. It is, however, not disputed that no registered instrument of sale was executed. There is also considerable controversy between the parties if Gomti Devi or for that matter even Ram Sarup had any interest of a proprietory nature in the property in dispute apart from the fact that he was admittedly in possession of the same when he died and its possession thereafter passed on to Gomi Devi. Be that as. it may, it is the case' of the petitioner, K.K. Arora, that he bad not only occupied the property but had also spent considerable amount in the rennovation of it to set up an office and had shifted his library and other belongings to it. It is claimed by him, and this is the subject-matter of a First Information Report, recorded by him on April 29, 1983, that on the night between 28 & 29 of April, 1983 Netra Prakash and certain other members of the family, who are in occupation of the other part of the property, purchased by Baij Nath, between which and the premises in dispute there is a common wall, trespassed into the premises in dispute by breaking the wall, on which a case under Section 380/448/452/34 Indian Penal Code was registered by the police against Netra Prakash and certain other members of the family. This case is apparently still under investigation. On the same date, the Police sent up a kalandra under Section 145 Criminal Procedure Code ., to the Sub-divisional Magistrate concerned with reference to the aforesaid First Information Report. The learned Subdivisional Magistrate apparently did not make a preliminary order on receipt of the kalandra but summoned both the parties and after hearing both the parses made a composite order on June 23, 1983 in the presence of both the parties. The petitioner was the "first party" before the learned Sub-divisional Magistrate and Netar Prakash, "the second party". This is how the order runs: