TEKCHAND Vs. SABIR HUSAIN

JUDGEMENT

(1.) THIS case is peculiar in its nature and affords an example as to how one party can overreach the other by creating as many complications as possible by resorting to Courts of law. In respect of the property in dispute there have been proceedings in the Civil Court, in the Criminal Court and contempt proceedings in the High Court. Bereft of all the complications in the case, what we are conerned with, is a Revision Petition arising in proceedings initiated Under Section 145, Criminal P. C. One Jogendersingh filed an application before the Magistrate at Hyderabad, stating that he had purchased the Hotel situated in Mozzam-jahi Road, from one Ahmed Shariff on 15-10-195a and that the said Hotel was being run under a partnership between himself of the one part and. Tekchand and Shamdani Sharif of the other part. He also alleged that 4 persons viz. , Sheik Farld, Syed Moinuddin Sharife, Syed Ahmed Sharifl and Jayantilal were trying to oust him from possession and that there was in consequence an apprehension of breach of peace. On this application, proceedings were started by the Magistrate Under Section 145, Criminal P. C. The property was attached and taken under his supervision by the Magistrate. Four days later Tekchand who is the Revision Petitioner before us filed a petition before the Magistrate stating that the facts stated by Jogender Singh in his application were all untrue and that the attachment might be raised. He filed a supplementary application the next day stating that the petition was liable to be dismissed even on the footing that Jogender Singh was in joint possession with others. The Magistrate called upon the parties to file their statements. When proceedings were pending in the Criminal Court contemporaneously there were pro ceedings in the City Civil Court started by one Sabir Hussain the owner of this property. This Sabir Hussain it would appear obtained an order of, eviction from the Rent Controller against his tenant Ahmed Sharif. This order of eviction became final after the High Court passed its Order of dismissal on a writ petition filed by the tenant against the order of eviction. In the order passed by the High Court, the High Court granted time to the tenant to vacate the premises up to 1-12-1952. The landlord Sabir Husain applied for execution of the eviction order when the time granted by the High Court had expired. This execution application was filed as against Ahmed Sharifl his tenant. When this application was filed an objection petition was filed by Tekchand stating that he was in possession and that he could not be ejected because he was in lawful possession by virtue of a document executed by Sabir Husain as well as Ahmed Shariff, Despite this application the Court directed delivery of possession to Sabir Husain.

(2.) IT was at this stage that the petitioner Tekchand filed an application that Sabir Husain had obtained possession from the Civil Court fraudulently and that the Civil Court could not have executed the decree without reference to the Criminal Court when the property was under the attachment of the latter. He, therefore, moved the Criminal Court to write to the Civil Court that it might withdraw its warrant. Simultaneously Tekchand filed an application for contempt of Court as against Ahmed Shariff and Sabir Husain alleging that possession had been taken in defiance of the order of the Court. These contempt proceedings came to a close by the High Court's order that it did not think it desirable to enter into a protracted enquiry with regard to delivery of possession of this property in a summary enquiry in the contempt of court proceedings, and that such question could be more satisfactorily investigated in an appropriate proceedings.

(3.) NOW coming to the proceedings in the Criminal Court Under Section 145, the Magistrate held that on the evidence produced by the parties it was established that Tekchand was actually in possession on the date of the order but he did not direct delivery of possession to him, for he thought that he was constrained by the order of the Civil Court handing over possession and he felt that inasmuch as possession had been handed over by an order of the Civil Court his hands were tied. It is this that has been made the ground of attack in this revision before us.