ROSHAN PORUS MISTRY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application challenging the order dated April 3, 1984 of the Metropolitan Magistrate, Borivli passed under section 146 of the Criminal Procedure Code in respect of Flat No. 20 in Siddhi Vinayak Co-operative Housing Society at Malad. Respondent No. 2 claimed that he was in possession of the said flat from January 5, 1984 till March 25, 1984 when he was dispossessed by the petitioner and respondent Nos. 3 and 4. The petitioner is the divorced wife of respondent No. 5. Respondents Nos. 3 and 4 are the parents of respondent No. 5. The flat in dispute is owned by respondent No. 5. According to respondent No. 2, he was put in the possession of the flat on 5-1-1984 by respondent No. 5 in pursuance of an agreement dated 15-10-1983. However, the petitioner, respondent No. 3 and respondent No. 4 dispossessed him on 25-3-1984. He, therefore, preferred applications under sections 145(1) and 146(1) of the Criminal Procedure Code before the Metropolitan Magistrate, Borivli on March 26, 1984 making the petitioner and respondents Nos. 3 and 4 as parties to the proceedings. March 30, 1984 was the date fixed for their appearance. Incidentally March 30, 1984 was also the date fixed by the City Civil Court in the matrimonial petition for divorce between the petitioner and respondent No. 5 and the matter was kept for hearing at 2.45 p.m. on that day. Therefore, on that date, the petitioner and respondent No. 4 went to Metropolitan Magistrates Court at Borivli at 11 a.m. and engaged Advocates Shri Gavali and Shri Singh and instructed them to seek an adjournment for filing their say. Both the applications under sections 145(1) and 146(1) were given the same number and on enquiry, Advocate Gavali informed the petitioner that the matter was adjourned to April 4, 1984. However, it appears that the application under section 146(1) was actually treated as a separate application by the Magistrate and adjourned to April 3, 1984 without their knowing it and on that day the order of sealing the flat was passed by him. On April 4, 1984 this petitioner, respondents Nos. 3 and 4 appeared before the Magistrate and learnt that the ex parte order was passed and, therefore applied for unsealing the premises. Against the order rejecting the said application, the petitioner has approached this Court.

(2.) Mr. Gumaste, learned Counsel for the petitioner submitted that the impugned order is bad in law and is also unjustified. He attacked the agreement dated 25-10-1983 executed by respondent No. 5 in favour of respondent No. 2 under which respondent No. 2 claimed to be in possession of the flat since 5-1-1984. Mr. Gumaste submitted that the agreement shows an unconscionable bargain in favour of respondent No. 2. The agreement shows that it was made on 25-10-1983 and a cheque of Rs. 35,000/- dated 5-1-1984 was given on that day. The Bank Account of respondent No. 2 shows that he did not have sufficient funds to cover the cheque on 5-1-1984. A letter sent by the bank to the learned Magistrate along with Bank Account of respondent No. 2, clearly mentions that Cheques No. 187969 dated 5-1-1984 issued by respondent No. 2, which was sought to be encashed on 19-3-1984, was not cleared on account of difference between the words and the figure of the amount of the cheque. The Bank Account also shows that on 19-3-1984 the respondent No. 2 deposited Rs. 35,000/- and another Cheque Bearing No. 187970, obviously next in series, was encashed. Both the cheques were of Rs. 35,000/- each and dated 5-1-1984. It, therefore, follows that the Cheque No. 187970 must have been issued after the first Cheque rebounded i.e. after 19-3-1984. Even though the cheque No. 187970 was issued after 19-3-1984, very surprisingly we find that the said Cheque No. i.e. 187970 has been mentioned in the endorsement, purported to have been made on 5-1-1984, below agreement at Exh. J. Therefore, according to Mr. Gumaste the endorsement made on the agreement is not only ante-dated but false, and consequently, the story of respondent No. 2 having been put in possession of the flat on 5-1-1984 is false. Attacking the letter produced by respondent No. 2, dated 28-3-1984 purported to have been written by respondent No. 5, to the Secretary of the Co-operative Society requesting him to transfer the flat and share certificates in the name of respondent No. 2 Mr. Gumaste submitted that under the agreement, the flat was to be transferred within a period of 10 years for a total price of Rs. 1,40,000/-. According to respondent No. 2, he had paid Rs. 35,000/- in cash at the time of the agreement and Rs. 35,000/- by a cheque, making together Rs. 70,000/-. Therefore, the question of transferring the flat on 28-3-1984 was out of question and hence the letter written by respondent No. 5 to the Secretary of the Co-operative Society cannot be relied upon. Mr. Gumaste further submitted that the area of the flat is 560 sq. ft. situate at Malad which would not cost less than Rs. 3 lakhs, on the date of the agreement. He also attacked the mode of the deferred payment which is Rs. 70,000/- at the time of taking the possession and Rs. 70,000/- 10 years thereafter. He, therefore, submitted that this agreement has been executed with the ulterior motive to defeat the rights of the petitioner in the matrimonial petition. In pursuance of the agreement, respondent No. 2 was to pay Rs. 250/- per month to respondent No. 5, out of which respondent No. 5 was under an obligation to pay Rs. 140/- to the Society towards the maintenance charges. To sum up, according to Mr. Gumaste, respondent No. 2 was never put in possession of the disputed flat. He also invited my attention to the fact that no affidavit of the neighbours or of the independent persons to prove the alleged possession or dispossession of respondent No. 2 have been filed in the proceedings. Neither the agreement nor any document was produced in the proceedings till the 19th April, 1984 when the petitioner preferred an application in the proceedings calling upon respondent No. 2 to produce the documents. Both the applications were posted for hearing on the 4th April, 1984, according to the affidavits of Advocates Gavali and Singh. Even then the learned Magistrate passed the order on the 3rd April, 1984 directing the sealing of the flat which order was executed late in the evening under a panchanama on the same day. According to him not a single article belonging to respondent No. 2 was found either in the disputed flat or outside the premises.

(3.) Mr. Deodhar, the learned Counsel for respondent No. 2 on the other hand submitted that the petitioner has no locus standi to pursue the present application as admittedly the petitioner is divorcee since 15-9-1984. He further submitted that the petitioner had categorically given her address as Flat No. 9, 2nd floor. Transval Terrace Corner of Grant Road, Bombay - 8 in the caption of the Marriage Petition, in the verification of the pleadings and in the body of the plaint Exh. 7 and 8. He, therefore, submitted that she has made a deliberate false statement on oath. He vehemently supported the agreement dated 25-10-1983 executed by respondent No. 5 in favour of respondent No. 2. He says that as no household article were mentioned in the panchanama, it falsifies the case of the petitioner and respondent Nos. 3 and 4 that they were staying in the disputed flat on 25-3-1984.