ABHIMANYU KUMAR ROY Vs. NANAK RAM AGARWALLA

JUDGEMENT

(1.) THIS Rule is directed against a final order passed under Section 145 (6) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by the learned Executive Magistrate, Calcutta.

(2.) ON 18 -10 -78 the petitioner Abhimanyu Kumar Ray filed an application before the learned Executive Magistrate, Calcutta praying for an order under Section 144 (2) of the Criminal Procedure Code restraining Nanakram Agarwala, the opposite party No. 1 herein, from disturbing the peaceful possession of the petitioner in respect of a room on the top floor of premises No. 12, Nirmal Lohia Lane, P. S. Burrabazar, which, according to the petitioner was in his peaceful possession and from which Nanakram was trying to oust him by force. On the same day, Nanakram filed a similar application praying for an order under Section 144 (2) of the Code restraining the petitioner and others from disturbing his possession in respect of the self same room. The learned Magistrate sent both the petitions to the Officer -in -Charge, Burrabazar Police Station for an enquiry. On 11 -11 -78, the Officer -in -Charge submitted a report stating that there was an apprehension of the breach of the peace over the possession of the room in question as both Abhimanyu Kumar Ray and Nanakram Agarwala were claiming possession of the same. According to the police report, the petitioner was claiming possession by virtue of a tenancy created in his favour by D. P. Jhunjhuniwala, the opposite party No. 2 herein, while Nanakram was claiming possession as a tenant under Kashi Prosad Jhunjhuniwala, the opposite party No. 3.

(3.) BEING satisfied from the said police report that a dispute likely to cause a breach of the peace existed concerning the possession of the said room on the top (4th) floor of the premises No. 12, Nirmal Lohia Lane, Calcutta, the learned Magistrate by his order dated 11.11.1978 drew up a proceeding under Section 145 (1) of the Code and directed all the above four parties to the dispute to appear in his Court on 18 -11 -78 and to put in written statements of their respective claims as respects the fact of actual possession. Pursuant to the said order the parties appeared before the learned Magistrate and filed their respective written statements. The learned Magistrate thereafter heard the parties and decided that the opposite party No. 1 was in possession of the disputed room at the relevant point of time and accordingly by the impugned order dated Jan. 13, 1979 he declared that the opposite party No. 1 was entitled to the possession thereof and forbade all disturbances of such possession until eviction in due course of law. In arriving at his decision the learned Magistrate relied upon the affidavits of the neighbouring shop owners and co -tenants of the premises in question, filed by the opposite party No. 1 as part of his written statement, and took note of the fact that no such person came to swear affidavit on behalf of the petitioner.