CHERIYAN Vs. STATE

JUDGEMENT

(1.) RESPONDENTS 3 and 4 lay no claim to the properties. They say that they were managing the business during the life time of the late philipose and that they continue the said management under the 1st respondent. Their management would enure to the benefit of whichever party is found to be entitled to the properties.

(2.) AFTER the receipt of the report at 7 P. M. on 16. 3. 1951 the learned Magistrate posted the case for hearing to the next day, that is 17. 3. 1951. On 17. 3. 1951 the learned magistrate recorded the report as follows: "both parties and their Advocates are not present. Issue proceedings under S. 43 Criminal Procedure Code. At this stage Sri. N. Govinda Menon appeared for the counter-petitioners, George K. Nair appeared for the petitioners. Both of them have been heard. Necessary orders could be passed after perusing the records and considering the arguments advanced tomorrow. " On the next day that is on 18. 3. 1951 the Magistrate passed the order that has led to this Revision Petition. In this order the learned magistrate considers the merits of the claims put forward by either party as regards the title to and possession of the disputed shop and business, considers the documents produced by the parties, the report and other papers filed by the Police in the light of the arguments advanced and comes to the conclusion in paragraph 10 as follows: "on a consideration of all the above facts and circumstances it is clear that the shop and the business is in the actual possession of the counter-petitioners and that the claim of possession of the petitioners is not based on any fact. There is in reality therefore no dispute as to possession of the shop and properties therein or the right to conduct the business therein and that the claim of the actual possession set up by the petitioners under the authority of an unregistered will the genuineness of which is itself questioned by the side of an existing valid registered will is a mere pretence. If in such a case the property is attached and taken possession of under S. 43 Criminal Procedure Code the petitioners do not loss anything while irreparable injury and loss will be caused to the counter-petitioners and to their business. I therefore hold that action under s. 43 Crl. P. C. is neither called for nor justified in the circumstances of this case. " He winds up the order by the last paragraph No. 11 as follows: "the next question is as to what is the appropriate action to be taken against the petitioners to prevent a breach of the peace. This court is not competent to pass an order under S. 142 Crl. P. C. Further it is an emergency measure which I think is unnecessary in the circumstances of this case. C1. 10 of S. 43 enables action under S. 103 Crl. P. C. in a case of this kind. If the petitioners are aggrieved and are desirous of speedy remedy it is open to them to move the civil court immediately and obtain appropriate orders to safeguard their interests. If without so doing the petitioners still persist in taking law into their own hands and disturb the possession of the counter-petitioners and thereby cause or attempt to cause disturbance of peace i direct the Police shall report for action under S. 103 Crl. P. C. "

(3.) THE first contention urged by Mr. Simon against the validity of the order must therefore be repelled. THE next contention urged by mr. Simon is that the order is bad being in essence one under S. 43 without compliance with the formalities necessary for proceedings thereunder. Mr. T. K. Narayana Pillai the learned counsel for the 2nd respondent contended that there is no scope for any order under S. 43 because the operation of that section would be attracted only in a case where a dispute likely to cause breach of the peace exists concerning any land or water or boundaries thereof. It is contended that in this case the dispute relates only to a business in tea which is movable property and that therefore the non-compliance with the formalities prescribed by S. 143 will not vitiate the order of the learned Magistrate. This contention does not appear to have been raised in the court below. Paragraph 10 of the order of the learned Magistrate extracted above clearly shows that the subject matter in dispute consisted of a shop and the business conducted therein and that it is not confined to the business independently of the shop in which the said business was transacted. THE bunch of keys alleged to have been removed by the petitioners in the statement of Kunjannamma Philipose contained keys of the shop. THE mahazar prepared by the police in the course of their enquiry is the mahazar not merely of the business that is of the movable property dealt with in the business but relates equally to the premises that is the shop wherein the business was being transacted. It is clear that the subject matter in dispute in this case is the shop as well as the business conducted in that shop. Mr. Narayanan Pillai did not contend that if the shop wherein the business was being conducted is the subject matter in dispute the operation of S. 43 of the Criminal Procedure Code will not be attracted. It is clear that the shop is the subject matter in dispute as well as the business conducted in that shop.