SAGAR MALL MEGH RAJ Vs. ABDUL HAFEEZ

JUDGEMENT

(1.) This case is somewhat out of the ordinary and although it does appear that the appellant who figured as the plaintiff in O.S. No. 69 of 1958 on the file of the Second Assistant Judge, Secunderabad, has not been treated fairly by the Criminal Court, yet in filing the present suit in a civil Court, it seems to me that the appellant has chosen the wrong forum.

(2.) The appellant, Messrs. Sagarmall Meghraj, a joint family firm carrying on business as jewellers and bankers, brought the present suit against the two respondents Abdul Raheem and Abdul Hafeez, for the recovery of a sum of H.S. Rs, 116-10-8 or in the alternative for the return of the articles pledged or their value from Abdul Hafeez (the, 2nd defendant-2nd respondent). The undisputed facts are that on 16th January, 1954 Abdul Raheem (the 1st defendant- 1st respondent) pledged with the plaintiff a pair of silver ' kadas ' and a necklace and borrowed a sum of H.S. Rs. 10, and on 20th May, 1954 he pledged another item, namely, a pair of 'painzab' (silver anklets) for a sum of Rs. 91-8-0 making up a total of H.S. Rs. 101-8-0. The first defendant and the and defendant are brothers-in-law, having married sisters. They were living in the same house in different rooms. On 13th August, 1954, the 2nd defendant lodged a complaint with the police alleging that his brother-in-law, the 1st defendant, had committed theft of certain silver ornaments and silk saris. The police filed a charge-sheet, C.C. No. 29/2 of 1955, before the' First Class Magistrate, Secunderabad. In the course of the investigation; the police seized from the plaintiff the articles which had been pledged by the 1st defendant and deposited the same in Court. The accused (first defendant) was absconding and so the Magistrate recorded the evidence of witnesses under section 512, Criminal Procedure Code, in the absence of the accused and apparently because he could not be apprehended, the Magistrate made an order on 9th December, 1954 in the following terms: "Case closed for the present", obviously meaning thereby that after the accused has been arrested, the case would be reopened and proceeded with. It may be remembered that at that time the articles which had been seized by the police from the plaintiff were in deposit in Court.

(3.) On 9th April, 1956, the 2nd defendant filed an application before the criminal Court presumably under section 516-A, Criminal Procedure Code, stating that the accused was absconding, that the criminal case was pending, that the jewels were wanted by the 2nd defendant's wife for wearing them at a wedding, and that the Court may be pleased to return the jewels to him (2nd defendant) on his executing the necessary bond. On 11th April, 1956 the Magistrate passed the following order :