RANJIT SINGH Vs. MOTI LAL KATIYAR

JUDGEMENT

(1.) Through these two connected criminal miscellaneous applications under Section 482 Cr. P.C. the prayer to quash the proceedings under Section 145 Cr. P.C. in case no. 2 of 1987 pending before the Sub. Divisional Magistrate, Bilhaur, Kanpur, Dehat, is made. I propose to decide both these petitions by this order.

(2.) The facts giving rise to the aforesaid petitions are that the petitioners are the Partners of M/s Jamuna Ice and Cold Storage Mills, situate at Chaubey Pur Tahsil Bilhaur District Kanrur Dehat. That the aforesaid Cold Storage is said to have been constructed in the year 1979 and the licence was also granted in the same year. That the opp. parties no. 1 and 2 filed a civil suit, the same being number 5 of 1987 on 15/1/1987. in the Court of Civil Judge, Kanpur, Dehat for permanent injunction restraining the defendants therein i.e. the present petitioners, from dispossessing the plaintiffs i.e. the opp. parties no. land 2 in the present petitions with the allegations that the opp. parties nos. 1 and 2 were the lessee of the said lee and Cold Storage Mills since 1985 and the defendants in the said suit wanted to evict and dispossess them from the said premises. Alongwith the plaint an application under order rule 1 and 2 C.P.C, was also moved claiming interim injunction during the pendency of the suit. The learned Judge vide his order dated 19/1/1987 held that the prima-facie case as set-up by the opp. parties nos. 1 and 2 was not proved by any evidence on record and, therefore, he rejected the application for interim injunction. Thereafter, an application for review of the order dated 19/11/1987 was moved by the opp. parties nos. 1 and 2. This application was also rejected by the Judge on 22/1/1987, who recorded the findings that it was not proved by the evidence or material on record that any lease has been created in favour of the opp parties nos. 1 and 2 or that they had been actually put in possession of the said lee and Cold Storage Mills. These orders have been filed as annexure 1 and 2 to the petition. The aforesaid suit was still pending in the Court of the Civil Judge when on 23rd of February, 1987 the opp. parties nos. 1 and 2 moved an application with the similar allegations in the Court of wife Sub- Divisional Magistrate, Bilhaur, District Kanpur, Dehat under Section 145 Cr. P.C. The Sub-Divisional Magistrate vide his order dated 27-2-1987 passed the preliminary order under Section 145(1) of the Cr. P.C. and simultaneously passed an order under Section 146 (1) Cr. P.C. attaching the said Ice and Cold Storage Mills. The opp. parties after the order of attachment passed by the SubDivisional Magistrate, Bilhaur, under Section 146(1) Cr. P.C. on 27-2-1987. Withdrew the civil suit on 5.3.1987. The applicants, who claim to be in peaceful possession of the said Cold Storage being aggrieved by the orders of the Sub-Divisional Magistrate Bilhaur, have preferred these petitions.

(3.) The learned counsel for the applicants has contended, firstly that the order passed by the Sub- Divisional Magistrate on 27-2-1987 is illegal, arbitrary and without jurisdiction and it appears that the same has been passed without any application of mind by the Sub-Divisional Magistrate. He has also contended that the Sub-Divisional Magistrate had no jurisdiction to pass the order under Section 146(1) Cr. P.C. simultaneously alongwith the order under Section 145(1) Cr. P.C. The learned counsel for the applicants also contends that the proceedings under Section 145 Cr. P.C. could not be allowed to continue as the civil suit for possession was pending in the competent civil court and an order with respect to the temporary injunction was passed by the civil court.