SATIABAI ABDUL HUSAIN Vs. ALAUDDIN QURESHI

JUDGEMENT

(1.) This is a petition filed under section 482 of the Code of Criminal Procedure, 1973 under Article 227 of the Constitution challenging the interlocutory order dated March 23, 1977 passed by the Leave Reserve Deputy Collector, Bombay Suburban District and Executive Magistrate, Greater Bombay, under section 145(1) of the Code of Criminal Procedure, 1973.

(2.) It is unnecessary to give the history of the whole litigation of the suit premises and rival contentions of the parties with regard to their interest in the same. For the purposes of disposing of this petition, it is sufficient to state that the petitioner claims to be the land-lady of the suit premises which are a ground of storeyed tin structure. According to her, she had obtained a decree of eviction in respect of the said premises against the heirs of the original tenant Jal Dinshaw Master. The said decree was executed by her on August 21, 1976 and the obstruction notice was made absolute against the present respondent Nos. 2 and 3 and one Noormohamad on October 12, 1976 in respect of a portion of the premises. The disputed portion was obtained under the execution of decree on November 24, 1976. Thereafter, the respondents 2 and 3 made an application to the Small Causes Court for setting aside the order in the obstruction proceedings against them since the order was ex parte. That proceeding is still pending. Subsequently, the respondent No. 1 filed a suit on December 6, 1976 for a declaration that he was in possession of the disputed portion of the suit premises and for an injunction restraining the petitioner from executing the decree in respect of the same. In that suit an ex parte injunction was given by the Small Causes Court; and it is the case of the petitioner that on the strength of the ex parte injunction, respondent No. 1 broke open the suit premises on December 8, 1976, as a result of which she preferred the present proceedings under section 145 of the Code of Criminal Procedure on February 4, 1977. On the very day the learned Executive Magistrate passed an ex parte order sealing the premises. Thereafter, the first respondent moved by his application on February 9, 1977 for setting aside the said ex parte order and for restoring the possession of the portion of the suit premises admeasuring 10 x 7. After hearing the parties, the learned Magistrate passed the impugned order under section 146(1) of the Code of Criminal Procedure. Whereby he directed that the possession of the rear portion of the disputed premises should be restored to the respondent No. 1 and the possession of the front portion measuring 6 X 7 should be handed over to the petitioner.

(3.) Since the bone of contention between the parties is whether the possession of the entire premises or part of the premises was given to the petitioner in execution of the decree dated March 2, 1975 obtain by her it is not possible to decide the dispute in this petition without taking the evidence. The learned Magistrate will, therefore, have to resolve this dispute by taking the necessary evidence in the matter. However since the contention of the petitioner before the learned Magistrate was that pursuant to the said decree, the possession of the entire premises was given to her, the learned Magistrate ought to have decided the entire dispute expeditiously, keeping the premises under a seal as per his original order dated February 4, 1977. The object of section 145 of the Code of Criminal Procedure is to prevent a breach of peace and yet the order passed by the learned Magistrate is likely to disturb the same. It is for this reason that we feel inclined to interfere with the impugned order, although ordinarily this Court does not entertain applications against such orders.