MAHESH PRASAD KATIYAR Vs. STATE OF U P

JUDGEMENT

(1.) MAHESH Prasad Katiyar has moved this application for quashing the order dated 16 -3 -1981 of the Magistrate (Annexure 3) and the order dated 4 -5 -1981 of the XIII Additional Sessions Judge ,Kanpur passed in revision No. 78/1981 rejecting the revision of the applicant and upholding the aforesaid order of the Magistrate.

(2.) THE applicant is the landlord of the premises while opposite party No. 2 claims to be the tenant of a room in premises No. 65/86, Moti Mohal, Kanpur. Opposite party number 2 namely Munnoo Singh filed a complaint on 26 -10 -1979 maintaining that the applicant wrongly dispossessed him from the disputed accommodation on 29 -8 -1979. The Magistrate after seeking a report from the police station concerned passed a preliminary order under Section 145(1) of the Code of Criminal Procedure recording his satisfaction regarding apprehension of breach of peace centering round the dispute concerning the premises in question and inviting written statement. An order dated 16 -3 -1981 was ultimately passed by the Magistrate (Annexure 3) holding ' that the present applicant took wrongful possession on 29 -8 -1979 of the premises and the application dated 26 -10 -1976 is within two months from that day and the present opposite party No. 2 will be held to be in possession and his possession should not be disturbed unless a competent court passes any order and direction to the contrary. The present applicant then preferred a revision which was also dismissed vide order dated 4 -5 -1981. It would appear that in paragraph 7 of the application the applicant has wrongly stated that order 4 -5 -1981 is of the Magistrate while it is the order passed in revision as would also be borne out by paragraph 8 of the application.

(3.) THE other submission made is that a Civil Suit No. 1576 of 1979 was filed in the court of Munsif City, Kanpur and an interim injunction was also granted on applicant's own showing the suit itself was dismissed on 30 -10 -1980. Apart from that the matter stands completely resolved by the pronouncement in the case of Kalap Din v. State, 1970 AWR 410. Division Bench, holding that once preliminary order has been passed the Magistrate has to continue the proceedings and to decide it and pendency of any civil suit or any orders passed therein does not bar its jurisdiction to have resort to any proceeding under Section 145 Code of Criminal Procedure. It is further submitted that after the dismissal of the suit on 30 -10 -1979 a civil appeal No. 676 of 1980 was filed and an interim order dated 6 -1 -1981 which has been confirmed on 9 -4 -1981, staying dispossession of the applicant from the premises was obtained. It would, however, be found that such order was obtained during the pendency of the proceedings under Section 145 Code of Criminal Procedure when the Magistrate was already seized of the matter in the midst of the proceedings under Section 145 Code of Criminal Procedure. As already observed once a preliminary order has been passed the Magistrate is bound by law to continue such proceedings and pass a final order and such proceeding cannot be dropped unless in between the Magistrate comes to any conclusion that there is no apprehension of breach of peace.