PRABHATCHANDRA Vs. STATE OF M.P.

JUDGEMENT

(1.) BEING aggrieved by the preliminary order, the petitioner Party No. 1 filed this petition against Party No. 2. The case of the petitioner is that late Mithailal, father of the Respondent No. 1 and husband of respondent No. 4 sold the disputed house on 8.4.1985 by registered sale -deed (Annexure P -5) to one Maltibala, who in turn on 19.9.1996 sold the same to the petitioner vide registered sale -deeds (Annexures P -12 and P -13) and in this way, after 8.4.1985 Maltibai and after 19.9.1996 the present petitioner is owner and in possession of the house. As Respondent/Party No. 2 is not in possession of the house and has filed civil suit against Maltibai and the petitioner No. 1 asking for declaration, injunction and possession of the house. Therefore, now there is no apprehension of breach of peace. As civil suit is pending, there is no justification with proceedings u/s. 145 CrPC before the SDM. It is abuse of the process of the Court, therefore, the preliminary order be quashed. The case of the Respondent No. 2 is that house in dispute was not sold by Mithailal to Maltibala, the sale -deed are false and fabricated. The petitioner have got legal remedy against the preliminary order passed by the SDM, therefore, this Court should not exercise the extra -ordinary powers u/s. 482 of the CrPC.

(2.) ON 13.3.1997 before the preliminary order was passed on 25.3.1997, non -petitioner, Party No.2, filed Civil Suit (No. 30 -N97) in Civil Court for declaration, injunction, mesne profits and possession of the disputed house against the petitioners and Maltibai. It is true that in case of Ram Sumer Puri Mahant v. State of U.P. and others (AIR 1985 SC 472), relied by Shri Mathur, learned counsel for the petitioner, it has been held - -

(3.) IN this case issuance of the process u/s. 420 of the IPC and 138 of the Negotiable Instruments Act was challenged u/s. 482 of the CrPC. This Court following K.M. Methew v. State of Kerala [1992 MPWN (1) 30] declined to exercise powers u/s. 482 of the Cr PC and held - -