VASANT BHAU PAWAR Vs. ANANT BHAU PAWAR

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India to quash the order dated 25th February 1976 made by the Executive Magistrate Bombay, under section 146(1) of the Code of Criminal Procedure, 1973 in particular and generally the entire proceedings under section 145 of the Code in which the said order was made.

(2.) On Bhau Hari Pawar, who died on 2nd March 1975, has five sons: Bapu, Prabhakar, Raghunath, Anant & Vasant. Vasant is the present petitioner. Anant is respondent No. I and Raghunath, is respondent No. 2. The dispute relates to shop No. 4 in which a hair-cutting saloon by name Swadesh Seva Hair Cutting Saloon, Abbas Mansion, Chhabildas Road, Dadar, Bombay, is being run. Prior to 30th September 1971, the father, Bhau Hari Pawar was conducting the said business. Thereafter, during the lifetime of the father, Vasant was conducting the business in the shop. According to respondents 1 and 2, the father had given a licence to Vasant to conduct the shop. It was, however, a joint family business of all the brothers. Since Vasant wanted to have the shop exclusively to himself, it was dedided on or about 25th March 1975 amongst the parties that Vasant should be given three months time to arrange for the funds for purchasing the shop and the business, but he failed to collect the necessary amount On the other hand, he filed Civil Suit No. 5100 of 1975 in the City Civil Cout, Bombay, on 18th July 1975 against all the four brouthers and obtained an ad interim injunction, restraining the defendents therein from entiring the shop and disturbing or interfering with his possession of the shop. The injunction order was served on the four brothers on 20th July 1975.

(3.) Respondents 1 and 2 thereafter filed an application on 16th September 1975 before the learned Executive Magistrate for initiating proceedings against the petitioner under section 145 of the Code. Their main contention in that application was that they were in possession of the shop on the date on which the petitioner filed the suit in the City-Civil Court. It was only on obtaining an ad interim injunction that, under the guise of that order, he took possession of the shop. There was a dispute concerning possession of the shop and it was likely to cause a breach of the peace. A preliminary order was passed under section 145(1) by the learned Executive Magistrate on 18th September 1975 Holding further that it was a case of emergency, he also made an order of attachment and sealing under section 146(1) of the Code. The petitioner moved the learned Executive Magistrate to raise the order of attachment and sealing of the shop but he failed Hence this petition.