VIRENDRA KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) The present case depicts a very sad story. It shows how the local police joined hands with respondent No. 3, a man with money-power and Sub-Divisional Magistrate, Nagina, district Bijnor, respondent No; 2 fell in their trap. The learned Magistrate accepted the case of respondent No. 3 and the police report as true and in exercise of power conferred by law, initiated proceeding under Section 145, Cr. P.C., attached and appointed receiver in respect of a shop in question and consequently, dispossessed the petitioner from his rightful possession.

(2.) The facts of the case emerging from the materials on record may be stated thus : "Raja Ram, the predecessor of the petitioner was a tenant in respect of a shop situated at Mahala Muglan, Kasba and P. S. Nagina, district Bijnor. Respondent No, 3 is the owner of the said shop and in order to evict the tenant therefrom, he moved the Small Cause Court by filing S.C.C. Suit No. 90 of 1985. During the pendency of the suit, Raja Ram died and the present petitioner, being his son was substituted in his place. The suit was ultimately decreed and order of eviction was passed. Feeling aggrieved by the Judgment and order ; the petitioner preferred revision bearing S.C.C. Revision No. 42 of 1994. The learned Additional District Judge, Bijnor upon hearing the parties allowed the revision by judgment and order dated 23rd July, 1999 and remanded the case to the court below for fresh decision in the light of the observation made therein. After the case was remanded, respondent No. 3 expressed that he did not wish to proceed with the case and consequently, the case was dismissed by order dated 1 st December, 1999, with costs. He had, however, the evil design to evict the petitioner by hook or by crook. As the suit for eviction was a long drawn process, he adopted a novel method and moved an application to the S.D.M., Nagina for initiating a proceeding under Section 145, Cr. P.C. Local police concealing truth submitted report recommending to initiate proceeding and to attach the shop. On the basis of the said recommendation, the Magistrate Initiated proceeding under Section 145, Cr. P.C. by order dated 29th June, 2001. On the next day, respondent No. 3 filed another application for attachment, on receipt whereof the Magistrate passed order on the same day to attach the shop in question and directed the police to appoint a third party receiver on consent of both the parties. All these happened when the civil court remained closed on account of summer vacation. After reopening of the Court, the petitioner filed Civil Suit No. 493 of 2001 for permanent injunction restraining respondent No. 3 from interfering with his possession of the above disputed shop. The Court by order dated 2nd July, 2001, directed both the parties to maintain status-quo and not to change the nature and character of the suit property. However, on the very day, S.H.O., Nagina being armed with order of attachment passed by the Sub-Divisional Magistrate broke open the lock of the shop in question and made inventory of the movables, dispossessed the petitioner from his lawful possession and kept the shop in the custody of two persons, namely, Vinay Veer Prakash Jain and Yogesh Kumar Kalra.

(3.) The case of respondent No, 3 in his counter-affidavit is that, since there was talk of compromise between him and the petitioner, the tenant, he withdrew the suit and agreed to accept the rent deposited by the petitioner. Finally compromise was effected and the shop in question being very old and dilapidated and not fit for carrying out any business, the petitioner vacated the premises on accepting a sum of Rs. 50,000 and executed a memorandum of transfer of possession in presence of two witnesses. But later on, he developed ill motive to grab the property and threatened to take forcible possession for which he had no other alternative but to approach the Magistrate for initiating a proceeding under Section 145, Cr. P.C.