MOHAMMAD ISHAQUE Vs. SUNIL RUPCHAND BHATIA

JUDGEMENT

(1.) :- This petition arises out of the proceedings adopted under section 145 of Criminal Procedure Code by the respondent No. 1 before the Court of Additional Chief metropolitan Magistrate, 11th Court, Kurla, Bombay under the circumstances which are narrated hereinafter.

(2.) THE premises which were the subject matter of the 145 proceedings are the shop premises being Shop No. 3, Shivnam, mahataney Park, Aziz Baug, Chembur, Bombay. Originally the said shop premises belonged to respondent No. 1 who had sold and given possession of the said shop premises to the petitioner on 24-6-1991 for a consideration of Rs. 4,00,000/-which was paid to respondent No. 1 on the said date. A copy of the agreement of sale is annexed at Exhibit A and the copy of the receipt for payment of Rs. 4,00,000/- to respondent No. 1 is annexed at Exhibit B to the petition. The respondent No. 1 also executed an affidavit on the same date recording therein that he had no objection for the transfer of the said shop premises in the name of the petitioner. The said affidavit was obviously made for the purpose of transfer to be effected in the name of the petitioner. There is also an irrevocable power of attorney in favour of petitioner executed by respondent No. 1, a copy whereof is annexed at Exhibit D to the petition. The respondent No. 1 also wrote a letter of the same date to mahtaney Builders informing them about the sale of the said shop premises to the petitioner. By letter of 4th July 1991 the said builders informed the petitioner that the said shop was transferred in his name. Thereafter, the respondent No. 1 adopted 145 proceedings in the trial Court by making an application dated 10-7-1991 against respondent No. 2, who had, according to the petitioner, absolutely no concern with the said shop premises. After the notice was issued to respondent No. 2 in the said 145 proceedings, the respondent no. 2 seems to have stated before the learned Magistrate that he was not at all concerned with the shop premises and thereafter the present petitioner was impleaded in those proceedings on 22nd July, 1991.

(3.) ON 12-7-1991 the petitioner filed suit, being S. C. Suit No. 5466 of 1991, in the Bombay City Civil Court for a declaration of his rights in respect of the said shop premises and for injunction against respondent No. 1, who, according to the petitioner i. e. the plaintiff in the said suit, had visited the shop premises on 1-7-1991 along with some antisocial elements. The petitioner had also taken out notice of Motion No. 4201 of 1991 in the said suit for interim injunction pending the suit. The ad-interim injunction was granted and ultimately the said ad-interim injunction came to be confirmed on 5th June, 1996, a copy whereof is produced by Mr. Baadkar for my perusal today at the time of hearing. 3. In the aforesaid facts, naturally and rightly the learned Additional Chief Metropolitan Magistrate rejected the application of the respondent No. 1 by his order dated 21-8-1991, copy whereof is annexed at Exhibit J to the petition. The respondent No. 1 took the matter to the sessions Court by filing Criminal Revision Application No. 257 of 1991 challenging the order of the learned Magistrate. The said Revision Application was allowed by the order of the Sessions Court dated 16th July, 1992 and the matter was remanded back to the Magistrate for disposal in accordance with law, it is this order which is challenged in this writ petition.