OM PRAKASH Vs. MOOLCHAND SHARMA

JUDGEMENT

(1.) This revision is directed against an order dated] 6.8.1985, passed by Sessions Judge, Durg in Criminal Revision No. 57 of 1985. This revision was accompanied by an application for stay also. On receiving the notice of the revision and the application for stay, Shri R.C. Khare, Advocate had put in appearance on behalf of N. As. 1 and 2. Both the counsels in view of the short question involved agreed to argue the case on merits on the basis of the material on record. Copies of the relevant orders had also been filed. Accordingly, the counsels were heard.

(2.) Owing to a dispute with regard to the possession of a shop, proceedings under section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) were initiated, by the police imp leading both the parties as N. As, before the S.D.M. Durg. As the order dated 1.7.1985 indicates, the shop in dispute had been ordered to be put under lock and key of the police on 10.11.1984. However, that order was set aside in Criminal Revision No. 1/85, vide order dated 17.1.1985 passed by Additional Sessions Judge, Durg, which had been filed by the present applicants. As the aforesaid order dated 17.1.1985 indicates, the order of the S D M. was set aside by the learned Additional Sessions Judge, for the reason that the preliminary order had not been passed till then. He also held that without passing the preliminary order, the sub-divisional Magistrate could not have issued summonses to the parties. He accordingly allowed the revision and set aside the orders dated 10.11.1984 and 13.11.1984 as had been passed by the Sub- Divisional Magistrate. He had, however made certain observations so as to enable the Sub- Divisional Magistrate to proceed with the case in accordance with law.

(3.) It may here be mentioned that Moolchand Sharma and Ishwardas who are the non-applicants in the present revision had filed a civil suit for perpetual injunction against Om Prakash and Tannulal Assrani alias Shrichand, who are the petitioners in the present revision. In that Civil Suit an application for grant of temporary injection had also been filed by the plaintiffs. From the order dated 13.12.1984 passed by the trial Court it is apparent that plain application for grant of temporary injunction against the defendants was rejected and the defendants application for grant of injunction against the plaintiffs was allowed. Against that order the plaintiffs appear to have preferred an appeal. The Additional Judge to the Court of District Judge, Durg in Civil Misc. Appeal No. 49 of 1984 by his order dated 28 1.1985 allowed that appeal. The injunction granted in favour of the defendants was set aside and the plaintiff application for injunction was allowed. Aggrieved by it the defendants filed Civil Revision No. 76 of 1985. Learned Single Judge of this Court by his order dated 25.6.1985 allowed the revision and set aside the lower appellate CourtTs order dated 28.1.1985 and thus the plaintiffs application for grant of temporary injunction was dismissed. Subsequently plaintiffs Moolchand Sharma and Ishwardas bad also filed a review petition (M.C.C. No. 348/85) which also was dismissed vide order dated 3.8.1985.