P A CHINNASWAMY Vs. CHANDRA RAO S KATHAVUKAR

JUDGEMENT

(1.) THE first and second revision petitioners have been convicted of an offence under Section 448, Indian Penal Code by the learned Fourth Presidency Magistrate, Madras and sentenced to pay a fine of Rs. 25/-, in default to undergo R. I. for two weeks and the third revision petitioner has been convicted of an offence under Section 426, Indian Penal Code and sentenced to pay a fine of Rs. 25/- in default to undergo R. I. for two weeks.

(2.) THE facts are as follows : The Respondent Chandra Rao S Kathavukar filed H. R. C. No. 327/72 before the Rent Controller and obtained an ex parte order of eviction against the first revision petitioner and one Elumalai and in execution of that order, in E, P. No. 558 of 1972, the bailiff P. W. 2 went to No. 1, Rattan Bazar, Madras along with the Complainant's agent P. W. 4 at about 2 p. m. on 27-61972 to execute the delivery warrant. In that premises P. W. 1 the complainant is keeping a tailoring shop in the upstairs while in the downstairs the first revision petitioner is having a rope shop and one Elumalai is also keeping a rope shop and a betel-leaf shop. According to P. W. 1 the Complainant and P. W. 2 the bailiff and P. W. 4 the agent of P. W. 1, P. W. 2 the bailiff explained to the first revision petitioner who was present in his shop the contents of the delivery warrant, whereupon the first revision petitioner took out the articles which were kept in the shop and vacated the premises and P. W. 2 delivered possession of the premises to P. W. 4 and the bailiff wrote on the door of the shop that possession had been delivered and he closed the door of the shop. Since P. W. 4 did not have a lock to lock up the shop, the shop was not locked. P. W. 2 then went to Elumalai's shop in order to deliver possession of the same, but owing to the objection raised on behalf of Elumalai that portion of the shop could not be delivered possession of P. W. 3 who was a customer of P. W. 1 and who had come to P. W. 1's tailoring shop, when he went to P. W. 1's shop to give some clothes for stitching, saw the first revision petitioner taking out all the articles which he had kept in that shop and P. W. 2 closing the door of the shop and writing on the door of the shop that possession had been delivered. According to P. Ws. 1 to 3 and 4, the first revision petitioner and the second revision petitioner then attempted to open the doors of the shop in order to get in. When P. W. 1 obstructed them they threatened to stab him and entered into the shop and they replaced in the shop the articles which the first revision petitioner had previously taken out of the shop. P. W. 3 while coming down from P. W. 1's tailoring shop saw this. P. W. 1 then went to give a report at the police station. The third revision petitioner then kicked the wooden partition that was between the portion In which the first revision petitioner was having his shop and Elumalai's portion and broke that partition.

(3.) THE revision petitioners examined two witnesses on their behalves of whom D. W. 1 testified that when the bailiff P. W. 2 came to the first revision petitioner's shop only the second revision petitioner was there, D. W. 2 is the first revision petitioner himself and he also testified that on the day the bailiff is said to have come to his shop he was not there, for he had asked the second revision petitioner to look after the shop and actually the bailiff never came to the shop and never removed the samans from there. He further testified that he filed an application to set aside the ex parte order of eviction and had got that order set aside. He denied that there was any partition between his shop and Elumalai's. He filed some documents to show that his shop is not situated at No. 1 Rattan Bazar. The learned Presidency Magistrate, however, believed the evidence of P. Ws. 1 to 5 and convicted the revision petitioners as mentioned above.