SAYYAD MUNIRA BEGUM KADRI Vs. MATHEW ABRAHIM

JUDGEMENT

(1.) IN this petition filed under Article 227 of the Constitution of INdia, the petitioners challenge the order dated October 2, 1974 and October 3, 1974 passed by the leave Revenue Deputy Collector, Bombay, respondent No. 3 herein under section 145 of the Criminal Procedure, sealing the premises in dispute on the ground that he considers the case to be one of emergency. The dispute relates to Book No. 4, which is on the ground floor and consists of a hall, kitchen, a dining room a store room and a verandah, in the building known as "Gul Villa" on Cadell Road, Mahim Cause Way, Bombay 16. The petitioner No. 2 is the husband of Petitioner No. 1, and, according to them, the petitioner No. 2 has 2/11th share in the entire property and that the petitioner No. 2 is in exclusive possession and enjoyment of the premises in dispute. According to them, petitioner No. 2 has let out the premises in dispute to his wife, petitioner No. 1 and she is in actual possession and enjoyment thereof. The respondent No. 2, on the other hand, claims to be the exclusive owner of the entire property, and according to him, the petitioner have no right, title or interest in the property. The respondent No. 1s case is that he is a paying guest along with some others and is using the dining room as a paying guest of respondent. No. 2. On July 15, 1974, the petitioner No. 1 filed a suit in the Court of the Small Causes against respondent No. 2 and some others for a declaration that she is a tenant of the premiss, viz. Block No. 4, and for the consequential relief of injunction restraining the respondent No. 2 and some others from disturbing her possession of the said premises. On July, 16, 1974, the Court of Small Causes granted ad interim injunction against respondent No. 2 restraining him either by himself or by his servants or agents from disturbing the petitioner No. 1s possession of the said premises. This order of ad interim injunction was served on respondent No. 1 on July 24, 1974. Immediately thereafter, on July 24, 1974, respondent No 2 made an application for vacating the ad interim injunction. IN his application, he described respondent No. 1 as his paying guest. The respondent No. 1 as well filed his affidavit supporting the case of respondent No. 2 that respondent No. 1 is his paying guest, using the dining room. Again, on Sept. 10, 1974, respondent No. 2 made an application in the Court of Small Causes in the said Suit for ad interim injunction restraining the petitioners from disturbing possession of the paying guest of the respondent. 1. However, no order on this application has so far been passed. Therefore on October 2, 1974, respondent No. 1 filed an application before the respondent No. 3. under section 145 of the Criminal Procedure Code. IN this application, the respondent No. 1 described himself as a licensee and raised a contention that he along with 5-6 other persons were occupying the dining room as licensees of respondent No. 2. On that very day, the respondent No. 3 passed an order of attachment under section 146(1) of the Criminal Procedure Code on the ground that he considered the case to be one of emergency. By this order, he attached the said premises, viz. Block No. 4 and directed the Police INspector to seal the premises till the decision of the proceedings before him. On the next day, that is, on October 3, 1974, the petitioners applied to the respondent No. 3 to vacate the sealing order. However, by his order dated October 28, 1974, respondent No. 3 rejected this application. This order of the Executive Magistrate was challenged by the petitioners in a revision application filed by them in this Court. This revision application, however, came to be rejected on August 7, 1975, on the ground that no interlocutory order was competent for revision under section 397(2), of the Criminal Procedure Code. The petitioners sought permission of the learned Single Judge who disposed of the matter to convert the revision application into a petition under Article 227 of the Constitution. However, the learned Judge directed the petitioners to file a separate petition. IN view of the rejection of the revision application, the petitioners have preferred the Criminal Application under Article 227 of the Constitution. When this Criminal Application came up for hearing before us on September 10, 1976, we were told on behalf of respondent No. 2 that the order of ad interim injunction passed in favour of the petitioners was confirmed by the Court of Small Causes on March 30, 1976, and that he had preferred an appeal challenging the said order before the Appellate Bench of the Court of Small Causes. A request was made before us that this matter be adjourned for two weeks to enable the respondent No. 2 to get proper interim orders from the Appellate Bench of the Court of the Small Causes in the appeal filed by him. We granted the request and passed the following order : "Respondent No. 2 granted two weeks time to get proper order in the appeal which he had filed challenging the injunction order issued in favour of petitioner No. 1 by the Small Causes Court after giving notice to the petitioner No. 1" On September 17, 1976, the petitioner No. 1 filed an application before us pointing out that the respondent No. 2 has made certain statement in his application filed by him before the Appellate Bench of the Court of Small Causes which statements were not consistent with what took place in this Court on September 10, 1976, and that the position may be clarified. IN her affidavit in support of her application, the petitioner No. 1 quoted the following paragraph in the application filed by respondent No. 2. This averment made by respondent No. 2 in his application before the Appellate Bench of the Court of Small Causes was obviously incorrect and misleading. We never intended to express anything more beyond what is stated expressly by us in our order. As it was likely that the said averment made by respondent No. 2 might prejudice the case of the petitioners, we passed and order staying the hearing of the appeal before the Appellate Bench of the Court of Small Causes which was fixed on September 20,1976. We would, however, like to make it clear that it would be open to the Appellate Bench of the Court of Small Causes to pass appropriate orders on the merits of the case. The short question that arises for consideration is whether the sealing order passed by the respondent No. 3 is proper. As stated above, the respondent No. 1 filed the application under section 145 on October 2, 1974 which was long after the Court of Small Causes had granted the ad interim injunction against respondent No. 2. This ad interim injunction was operative against respondent No. 2 as well as his servants and agents. The respondent No. 2 made two separate applications, one for vacating the ad interim injunction and the other of granting ad interim injunction against the petitioners form disturbing possession of his paying guest, viz. respondent No. 1 Neither the ad interim injunction already granted in favour of the petitioner was vacated not any ad interim injunction was granted in gave our of respondent No. 2 by the Court of Small Causes. The position, therefore, on October 2, 1974 when respondent No. 2 moved respondent No. 3 for action under section 145 was that there was an operative order of injunction against respondent No. 2 passed by a competent Civil Court. IN the Court of Small Causes, the case of respondent No. 2 was that respondent No. 1 was his paying guest. It was only in his application under section 145 Criminal Procedure Code that the respondent No. 1 described himself as a licensee of respondent No. 2. Whether has a paying guest or a licensee is immaterial for our purposes. There was clearly an operative order of injunction against respondent No. 2, through whom respondent No. 1 claimed to be in possession, on the date of the application when the matter was pending before the Civil Court. What is more, the order of interim injunction was later on confirmed by the Court of Small Causes by its order dated March 30, 1976. IN our view, when the Civil Court is seized with the matter, the Magistrate in exercises of his powers under section 145 or section 146 would not be competent to pass such orders as would not be competent to pass such orders as would nullify the effect of the order passed by the Civil Court. IN fact, the scheme of the provisions of sections 145 and 146 shows that the orders passed by the Executive Magistrates are subject to the orders passed by the Civil Court. The facts of the present case show that the impugned order has been passed by the learned Magistrate after the order if ad interim injunction passed on July 16, 1974. This order of ad interim injunction has been confirmed on March 30, 1976. The orders passed under section 145 and section 146 must yield to the orders of the Civil Court. IN any event, therefore, on the confirmation of the interim injunction by the Civil Court, the attachment must come to an end and would be rendered inoperative. It was urged by Mr. Hudlikar appearing for respondent No. 2 that when a revision application has been held to be not maintained by this Court, a petition under Article 227 of the Constitution for the same relief would not lie. We are unable to accept this submission. The revision application has been held to be incompetent in view of the provisions of sub-section (2) of section 397 of the Code which bars Court from entertaining revision applications against interlocutory orders. However, the remedy under Article 227 would not be barred on that count and the Court is entitled to exercise its powers in its extra-ordinary jurisdiction under Article 227. IN the present case, we have found that the Magistrates order was illegal and without jurisdiction and in any event must come to an end in view of the confirmation of the order of injunction passed by the Court of Small Causes. There is, therefore, no substance in the contention raised by the Counsel. IN the result, the petition is allowed; the order dated October 2, 1974 passed by respondent No. 3 ordering the attachment of the subject of the dispute as well as the order dated October 28, 1974 rejecting the application of the petitioners and directing that the suit premises should be kept sealed till the disposal of the proceedings under section 145 are quashed and set aside. INcidentally, we may also observe that the respondent No. 3 should consider whether it is worth while to continue the proceedings under section 145 in the light of the pending litigation in the Civil Court as it would be open for the parties to get proper orders concerning their rights in the pending litigation.Rule made absolute.