MIRZA MOHD AZIZ Vs. SAFDAR HUSAIN

JUDGEMENT

(1.) This is a criminal revision in a case under Section 145 of the Code of Criminal Procedure.

(2.) One Mirza Mohammad Aziz filed an application against Safdar Husain and Asghar Husain before the Deputy Superintendent of Police that they were threatening to take possession over a room in his house which was in his possession and this application was filed on the 19th July, 1959. The Deputy Superintendent of Police Lucknow sent it to a subordinate police officer who reported that there was an apprehension of a breach of the peace. This complaint was then forwarded to the Additional City Magistrate who took cognizance of it and passed a preliminary order on the 14th of November, 1959. The parties were then asked to file their affidavits and produce their documentary evidence and the Magistrate by his final order dated the 12tli January, 1961, handed over the disputed property to Safdar Husain and Asghar Husain and as the keys of the room were with one Nawab Ghaznafar Ali Khan, he in order to facilitate the taking over of possession by Safdar Husain and Asghar Husain directed that he should hand over the keys to Asghar Husain and Safdar Husain. Immediately after the criminal courts passed this order Mirza Mohd. Aziz went up in revision against the order of the Magistrate but this revision was dismissed. He then came up in revision before this Court and I am hearing it today.

(3.) The counsel for the applicant contended that as his client has filed a suit in the civil courts and the civil courts have issued a temporary injunction stopping Safdar Husain and Asghar from taking possession of the room according to the orders of the Magistrate, I should allow this revision and set aside the order of the Magistrate, The counsel on the other side, however, contends that the Magistrate had passed this order when he was competent to do so and any subsequent action taken by Mirza Mohd. Aziz cannot make the order passed by the Magistrate as illegal or non-compliable. He contends that he has gone in appeal before the District Judge against the temporary injunction issued by the Munsif North Lucknow and that appeal is pending. It may be that the District Judge allows this appeal then the order of the Magistrate would be enforceable. I have heard the counsel for both the parties and in my opinion the order of the Magistrate cannot be treated as a dead letter. There is no legal defect in the order passed by the Magistrate and it cannot be said that he had no jurisdiction to pass this order. In order to illustrate this point it is necessary to give a few facts which form the background of this case.