CHAMPALAL SUMERMAL KHIMAVAT Vs. RUPCHAND S JAIN

JUDGEMENT

(1.) This Revision Application arises out of a proceeding under section 145 of the Code of Criminal Procedure, 1973.

(2.) The property in dispute consists of a factory shed situate at 302 Block A Dhanraj Industrial Estate, Sun Mill Road, Lower Parel, Bombay-13. On 9th February, 1976, the first respondent Jain made an application to the Executive Magistrate, Greater Bombay, alleging that the petitioners had forcibly dispossessed him of the aforementioned property in dispute on 7th February, 1976 and on being satisfied that in respect of this property in dispute there was likelihood of a breach of the peace, the learned Executive Magistrate, passed a preliminary order under section 145(1) of the Code of Criminal Procedure, 1973, on 10th February, 1976 calling upon both the parties to the dispute to appear before him and to put in written statements of their respective claims in regard to the fact of actual possession of the subject matter of the dispute. The Learned Executive Magistrate, further took the view that this was a case of emergency and attached the property in dispute under section 146(1) of the Code of Criminal Procedure, and directed to the police to seal the factory premises. Accordingly, the police sealed the factory premises. On 13th February, 1976 the present petitioners appeared before the learned Executive Magistrate and made an application saying that the first respondent Rupchand Jain had unjustifiable snatched an ex parte order by suppressing several material facts and that as a matter of fact, the petitioners themselves were in actual possession of the factory premises and they were also running the factory. They prayed that the attachment of the factory premises should be vacated and the seal of the police should be ordered to be removed. On 25th February, 1976, the learned Executive Magistrate vacated the attachment of the factory premises and passed an order directing the police to remove the seal and handover possession of the premises to the present petitioners. Against that order, the first respondent preferred Criminal Application No. 436 of 1976 to this Court on 26th February, 1976 and obtained an order directing stay of execution of the order of the learned Executive Magistrate. The said order of this Court was received in the Court of the learned Executive Magistrate on 28th February, 1976. In the meanwhile, the learned Executive Magistrates order dated 26th February, 1976 had already been executed. It is presumably on this account that on 27th February, 1976 the first respondent withdrew Criminal Application filed by him in the High Court, and the writ of the High Court saying that the first respondent had withdrawn his application was received in the Court of the learned Executive Magistrate in due course; but on the strength of the earlier writ directing stay of the learned Executive Magistrates order dated 25th February, 1976, the learned Executive Magistrate again attached the property in dispute under section 146(1) of the Code of Criminal Procedure and directed the police to reseal the premises.

(3.) During the pendency of these proceedings, in the Court of the learned Executive Magistrate and the High Court, the first respondents wife filed a Civil Suit No. 2114 of 1976 in the City Civil Court, Bombay, and obtained an ex parte injunction restraining the petitioners and some others from taking possession of the factory premises in dispute and also from representing themselves as the partners of the firm. "M/s. Kamal Automatic Industries". After the second respondent Smt. Jaywanti Jain obtained this interin ex parte injunction from the City Civil Court, Bombay, the first respondent made an application dated 7th April, 1976 to the learned Executive Magistrate, Greater Bombay, saying that in view of the injunction issued by the City Civil Court Bombay, in Civil Suit No. 2114 of 1976, the likelihood of a breach of the peace in respect of the property had completely disappeared and the proceedings under section 145 of the Code of Criminal Procedure, commenced on the strength of his application dated 9th February, 1976 should be dropped. On receipt of this application, the learned Executive Magistrate, issued notices to the present petitioners and it appears that only the first petitioner came to be served with that notice. In response to that notice the first petitioner appeared before the learned Executive Magistrate and requested him that as per his order dated 25th February, 1976 the factory premises should be unsealed and handed over into his possession. The learned Executive Magistrate, heard the arguments advanced on behalf of both the rival claimants and passed the following order on 15th April, 1976:---