CHANDRA ARJAN HIRANANDANI Vs. SANTOSH KUMAR JHUNJHUNWALA

JUDGEMENT

(1.) This is an application filed under section 482 of the Criminal Procedure Code, 1973, challenging the order of the learned Executive Magistrate in case No. AB/HAS-SR-7 of 1974 refusing to cancel and to set aside his earlier order dated 28th June, 1974 whereby he had directed the sealing and attachment of a room.

(2.) The facts giving rise to this application in so far as they are material for deciding the point raised before us are briefly these : Admittedly flat No. 11-D on the 11th floor of Ananta building, Wardon Road, Bombay, consisting of 6 rooms and 4 bath-rooms is of the ownership of the petitioner Smt. Chandra Arjan Hiranandani. On 11th August, 1971, the said premises excluding one bed-room with an attached bath-room was purported to be given by way of leave and licence to M/s. Himdoot Weaving and Finishing Mills Pvt. Ltd., for housing its managing Director one Mr. Ramgopal Saraf. It may be mentioned that although admittedly the document of leave and licence specifically provides that the flat excluding one bed room with an attached bath room is the subject matter of the demise, it is the contention of the respondent that notwithstanding such recital in the agreement of leave and licence, the entire flat was the subject matter of leave and licence and it was in fact put in the possession of Ramgopal Saraf. The leave and licence agreement of August 1971 being continued from year to year, it was alleged by the respondent that on 30th May, 1974 at about 4 p.m., the applicant and her husband accompanied by some persons forcibly trespassed in bed room which was on the southern western side of the flat and forcibly occupied the same for the first time. On 31st May, 1974, between 8 and 9 p.m., an N.C. complaint regarding that alleged incident was made in the Gamdevi Police Station. On 5th of June, 1974, the licensee M/s. Himdoot Weaving and Finishing Mills Pvt. Ltd., filed suit No. 4727 of 1974 in the Court of Small Causes at Bombay for a declaration that the entire flat including the disputed room was the subject matter of the leave and licence and that subsequently by reason of the Maharashtra Act No. 27 of 1973 which came into force on the 1st February, 1974, the licence had become the tenant of the entire flat. A relief of mandatory injunction directing the petitioner before us to remove herself from the disputed room and a perpetual injunction restraining her from interfering with the right of peaceful enjoyment of the plaintiff in that suit in respect of the entire flat was claimed for. Ex parte interim orders being sought for, the Court was pleased to pass on order only prohibiting the petitioner from interfering with the plaintiffs right of peaceful enjoyment of the flat other than the disputed room. The relief of mandatory injunction which was prayed for was not granted. On 29th June, 1974, the petitioner moved the Court of Small Causes for orders directing the plaintiff in the pending suit not to part with the possession of the undisputed portion of the flat in his possession or to induct anybody therein. Affidavits in reply were filed in respect of both the applications which were field by the parties in the suit. When that was the position, on 24th June, 1974, the respondent started proceedings under section 145 of the Criminal Procedure Code. He contended that the entire flat including the disputed room was in the possession of Ramgopal Saraf and he further alleged that along with Ramgopal and other he, the petitioner, also was residing in the premises along with his wife and children. He also referred to the alleged dispossession of the disputed room by the petitioner on the 30th May, 1974 and the infructuous N.C. complaint which was filed by Ramgopal. He made other allegations consistent with the requirements of section 145 of the Criminal Procedure Code in a bid to secure the preliminary order in his favour. That order was in fact passed by the learned Magistrate on 27th June, 1974. On that very day, the respondent filed an applications for attachment of the disputed room under the provisions of section 146 of the Criminal Procedure Code. By the application, the respondent having referred to the allegations in the main application, went on to state that the situation in the flat was provocative and was likely to create a breach of peace unless immediate order for sealing the disputed south-west room was passed by the Court. The learned Magistrate passed the said order on 28th June, 1974 and he further directed that the attachment which was ordered by him would continue till the question of actual possession was decided by him. Both the preliminary order and the order of attachment were served on the petitioner on 29th June, 1974. It may be mentioned that when the police went to make a panchnama as per the directions of the Court at about 10.45 a.m. it was noticed that the petitioner was present in the room with her belonging and there was none else. On that very day, the order of attachment being executed, the petitioner filed an application Ex. E for raising the attachment. She pointed out that in fact the disputed room was never the subject matter of the demise and that she was all along in possession of the same and in particular she also referred to the fact that a suit in respect of the entire flat filed at the instance of the licence was pending and that in fact in that suit, the Court had declined to give interim relief of mandatory injunction which was sought against her. She also pointed out that in that very suit, inspite of the fact that an order of interim injunction restraining her from interfering with the right of the licensee to enjoy the flat excluding the disputed room being passed, no grievance was made by the licensee in that pending suit about any breach of the said order by her and, therefore, she pointed out that there was no case made out of any possible breach of peace and much less she contended, was there any reason for attaching the disputed room. She, therefore, prayed that the attachment should be raised. That application was not heard and ultimately on the 30th July, 1974, the petitioner actually filed a written statement to the main application and also filed documents and affidavit in support of her contentions along with that written statement. While her application Ex. E dated 29th June, 1974 was still pending the main application was admittedly taken up for hearing on the 21st September, 1974 after several adjournments. It appears that on that day, Mr. Mirchandani, learned Advocate for the petitioner before us orally requested the learned Magistrate to vacate the preliminary order under the provisions of sub-section (5) of section 145 of the Code of Criminal Procedure. But actually Mr. Chagla, learned Counsel for the respondent argued the entire main application in full and concluded his arguments. The proceedings were thereafter deferred to 5th October, 1974 for the arguments of Mr. Mirchandani. But then on that day instead of arguing the main application by way of reply to the earlier addresses by Mr. Chagla, an application Ex. F was filed on behalf of the petitioner requesting the Court to dispose of her earlier application dated 29th June, 1974, and to set aside the order of attachment which was passed under section 146(1) of the Criminal Procedure Code. In addition to that application another application was also filed on that very day under section 145(5), requesting the learned Magistrate to cancel the preliminary order for the reasons stated in that application which are not necessary to state. The learned Magistrate thereafter rejected the application dated 29th June, 1974 and the application dated October 1974 by both of which the petitioner had requested him to set aside the earlier order of attachment of the disputed room. It is only these two applications consisting of the identical prayer, which were taken up for disposal by the learned Magistrate and the learned Magistrate rejected both the applications by observing that there was no ground to raise the attachment.

(3.) It is the propriety of the said order which is challenged by the petitioner under section 482 of the Criminal Procedure Code.