SHAKUNTALA DEVI Vs. D J JAUNPUR

JUDGEMENT

(1.) D. K. Seth, J. The opposite party had initiated a proceeding in 1992 under Section 145, Cr. P. c. The property was taken into custodia legia by the court in terms of the Section 146, Cr. P. C. In the said proceeding, the plaintiff was not a party though her brother was a party thereto. Against the said order, a writ petition being Civil Misc. Writ Petition No. 9369 of 1993 was filed in which it was held as follows : "in this writ petition no final order regarding the subject- matter of dispute can be passed. At best the judgments and order passed by the respondents Nos. 1 and 2 could be quashed and Respondent No. 2 could be directed to proceed in the matter after making petitioner No. 1 party to the proceedings, this would however not serve any purpose because the matter is pending in the civil court and during the penden cy of the matter in the civil court, the Magistrate would not be entitled to pass any final order in so far as proceeding under Section 146, Cr. P. C. are concerned. The legal position is that the Order passed by the Magistrate in proceedings under Section 145, Cr. P. C. would be subject to the decision of the civil suit filed by petitioner No. 1 in the Court of Munsif City, Jaunpur and in this view of the no useful purpose would be served by quashing the impugned orders of respondent Nos. 1 and 2. "

(2.) ON the above observation, the said writ petition was dismissed.

(3.) DRAWING any attention to the order passed by the learned Munsif being Annexure '3' the petition, while translating the same at the bar, Mr. Shashi Nandan pointed out that the learned Civil Judge had come to a definite finding that the suit property is in possession of the plaintiff and that has been proved by various docu ments produced by her. DRAWING my attention to the order passed by the lower appellate court while translating the same simultaneously at the Bar, Mr. Shashi Nandan points out that nowhere the said appeal court has come to a definite finding as to the possession of the parties. The learned lower appellate court has also not dealt with the finding of the learned trial court with regard to the possession of the plaintiff. On the other hand, he points out that the learned lower appellate court has proceeded on the basis that by person of an order passed in proceedings under Section 145, Cr. P. C. , the plaintiff was not in possession and that the said facts having not been disclosed, the plaintiff was not entitled to any relief and, therefore, she could not have any injunction.