GHEVERCHAND DEVICHAND SHAH Vs. PUKHRAJ VACCHRAJ SHAH

JUDGEMENT

(1.) THIS petition filed under section 482 of the code of Criminal Procedure 1974 ( the Code for short) and under Article 227 of the Constitution of India relates to proceedings initiated under section 145 of the Code in respect of room No. 10, 3rd floor, Madhavji Building, S. V. P. Road, Opp. Alankar Cinema, Bombay (hereinafter referred to as the disputed premises ). The petition seeks setting aside of the orders dated 17-7-1992 being Exhibits F , G and H to the petition, passed by the learned Additional Chief metropolitan Magistrate, IV Court, Girgaon, Bombay in Case nos. 932/n/1992 and 933/n/1992. By the order at Exh. F preliminary notice under section 145 (1) of the Code is issued to the respondents. By order at Exh. G petitioners have been called upon to give their written statement in respect of their respective claim about possession of the disputed premises. By order at Exh. H the petitioners have been called upon to give their say as to why the application of respondent No. 1 praying for sealing of the disputed premises should not be granted.

(2.) SHORTLY stated, the facts are as under :- The petitioners are cousins. Petitioner No. 2 is the adopted son of respondent No. 1. petitioner No. 2 is residing at the disputed premises. It is the case of the petitioners that the relevant documents in support of the factum of possession such as, ration card, cooking gas etc. are in possession of petitioner No. 2. According to the petitioners, respondent No. 1 had never stayed in the disputed premises. Respondent No. 1 resides at room No. 8, vishram Building, 3rd Kumbharwada, Bombay. Respondent No. 1 moved the Additional Chief Metropolitan Magistrate, IV court, Girgaon, Bombay, by application dated 22nd June, 1992 under section 145 of the Code for taking action against the petitioners. He also filed an application under section 146 of the Code praying for ceiling of the disputed premises. On 2-7-1992, petitioner No. 2 filed a declaratory suit being suit No. 4241 of 1992 contending that, he is entitled to enjoy, use and occupy the disputed premises and for injunction restraining respondent No. 1 from disturbing and interfering with his possession of the same. On 7th July, 1992, on a Notice of Motion taken out by petitioner No. 2, ad-interim injunction was granted by the City Civil Court restraining respondent No. 1 from interfering with petitioners possession. It is the case of the petitioners that by suppressing the fact that, an order of injunction was granted in favour of petitioner No. 2, respondent No. 1 obtained the order dated 17-7-1992 from the learned additional Chief Metropolitan Magistrate IV Court, Girgaum, wherein it is observed that, there is likelihood of breach of peace. The learned Magistrate issued preliminary notice under section 145 (1) of the Code. He also passed other consequential orders which are also under challenge in this petition.

(3.) I have heard Mr. A. G. Sabnis, learned counsel appearing for the petitioners and Mr. Rajendra Shirodkar, learned counsel appearing for the respondents. Mr. Sabnis assailed the initiation of proceedings under section 145 of the Code on three grounds. Drawing my attention to paragraph 9 of the application under section 145 of the Code filed by respondent No. 1, Mr. Sabnis urged that, in the application the fact that the petitioners are in joint possession of the disputed premises with respondent No. 1 is admitted by respondent No. 1. The relevant portion of paragraph 9 reads thus :