SANJAI KUMAR Vs. VITH ADDITIONAL DISTRICT JUDGE BAREILLY

JUDGEMENT

(1.) The dispute relates to a house and shop situated in Mohalla Gandhi Tola, Tehsil, Nawabganj, District Bareilly. Sanjai Kumar and Anjai Kumar, who were real brothers, claimed to have purchased the same from opposite party No. 4, Smt. Babita Gupta alias Pratibha Gupta, wife of Ram Prakash Gupta by means of a sale deed dated 27-7-1994. The property was a house only on the date of the said purchase and the petitioners thereafter, got constructed a shop in it and started business of jewellery therein. Opposite Party No. 4 Smt. Babita Gupta on 16-11-1994 instituted Civil Suit No. 473 of 1994 on frivolous allegations for declaration that she was the absolute owner in possession of the house in dispute and prayed for declaration that the sale deed dated 27-7-1994 executed by her was illegal, void and without consideration. It is not necessary to enter into the details of the suit but it is significant to mention that no interim order of any kind was passed by the civil Court in this suit. The petitioners contested the aforesaid suit by filing their written statement in January, 1995 and the proceedings were still going on. Smt. Babita Gupta on 12-11-1994 initiated proceedings under Section 145, Cr. P.C., admitting therein clearly that the petitioners were in possession over the disputed property since 27-7-1994 and prayed for getting the same vacated by their ejectment, Annexure 3 to the writ petition is the copy of her said application dated 12-11-1994. The learned Magistrate took cognizance of the matter and the, petitioners filed their written statement on 25-2-1995 mentioning clearly that there was no dispute at all about possession over the disputed property. The fact of the pendency of the civil. suit also was brought to the notice of the Magistrate concerned. who, however, on the request of Smt. Babita Gupta, respondent No. 4 made through her application dated 23-3-1995 under S. 145, Cr. P.C. ordered for the attachment of the disputed property. The petitioners on 13-9-1995 and 21-9-1995 moved application before the Magistrate concerned for dropping the proceedings under Section 145, Cr. P.C., as the civil suit in respect of the disputed property was pending decision between the same parties and there was no apprehension of breach of peace due to which proceedings were not maintainable. The Magistrate allegedly passed an illegal order on 22-9-1995, a copy of which is Annexure No. 10 to the writ petition.

(2.) The petitioners on 23-9-1995 filed a revision application against the order dated 22-9-1995 which was admitted by the learned District and Sessions Judge, the order of attachment was stayed and it was transferred to the Court of VIth Addl. Sessions Judge, Bareilly, who by his order dated 5-1-1996 wrongly and illegally dismissed the same holding that it was not maintainable. Annexure No. 11 is the copy of the said judgement and order. The orders dated 22-9-1995 and 5-1-1996 deserved to be quashed as the civil suit was pending decision between the same parties. There being no other remedy open to the petitioners, they instituted this writ petition for getting quashed the order dated 5-1-1996 passed by the learned Vth Addl. District and Sessions Judge, Bareilly and order dated 22-9-1995 passed by Sub-Divisional Magistrate. Bareilly and for a writ in the nature of mandamus against theSub-Divisional Magistrate not to proceed with the case any further under Section 145, Cr. P.C.

(3.) Opposite Party No. 4, Smt. Babita Gupta filed caveat apprehending institution of writ petition by the petitioners. Sri Ravi Kiran Jain, learned counsel, argued the case on behalf of the Caveator. This Court enquired from him as to whether he wanted time for filing counter-affidavit upon which he stated that he did not want opportunity for filing counter-affidavit and was prepared to argue the case on the question of admission. Naturally, therefore, there was no need of any rejoinder affidavit.