ABDUL KHALIQ KHAN Vs. GHULAM MOHMMAD SHEIKH

JUDGEMENT

(1.) This reference has been made by the learned Ist. Addl. Sessions Judge, Srinagar recommending to set aside order dated 31-8-2000 passed by City Magistrate, Srinagar under Section 145, Cr.P.C.

(2.) In brief the facts are that on 6-7-1999 Khaliq Khan son of Razaq Khan along with Mohmmad Ramzan Sofi son of Habibullah Sofi presented a written application to the police concerned that the two shops situated at Qamarwari chowk were in their possession as tenants for the last 20 years under a valid lease from Ahad Sheikh and his sons and an amount of Rs. 65,000.00 as rent in advance upto the year 2000 has been paid against the shops. They complained that Ahad Sheikh has died and his sons on 5-3-1999 without any right or concern broke open the lock of the two shops and took forcible possession of the shops. On this report FIR was lodged against Ghulam Mohmmad Sheikh Mohammad Yosuf, Adbul Hamid u/S. 448 RPC. As per the statement of the witnesses at the spot it was found by the police that two shops were under the tenancy and possession of the complainant for the last 20 years. In December, 1993 a BSF bunker was constructed in front of the two shops due to which the view of the shops was got blocked and on that the complainant approached the High Court for claiming the damages. Since there was an apprehension of breach of peace as both the parties were claiming right on the shops and the shops were lying closed, report was submitted to the learned City Magistrate for initiating proceedings under Section 145, Cr.P.C. On the basis of police report proceedings were initiated. In the meantime on 6-7-1999 respondents filed suit for injunction against the petitioners-defendants in which they claimed to be the owners and in possession of the shops. They further alleged that they are running their respective business in the shops and the defendants are threatening to interfere in their business without any rhyme and reason. Along with the plaint plaintiffs filed an application under O. 39, Rules 1 and 2 of CPC for grant of ad-interim relief. Learned Munsiff (Sub-Registrar) Srinagar by an ex parte order directed the parties to maintain status quo with respect to suit property i.e. shops mentioned in the site plan. Plaintiffs armed with the order dated 8-7-1999 made an application to the Chief Judicial Magistrate, Srinagar for dropping of the proceedings under Section 145, Cr.P.C. Learned Chief Judicial Magistrate, Srinagar transferred the said application to the City Magistrate, Srinagar for disposal under law. Learned City Magistrate, Srinagar relying upon the judgment of the Supreme Court in the case "Amresh Tiwari v. Lalta Prasad Dubey, AIR 2000 SC 1504 held that since Civil Suit in respect of the property under consideration is pending before the Munsiff, (Sub-Registrar) Srinagar as such the proceedings under Section 145, Cr.P.C. cannot continue and resultantly he dropped the proceedings. However Khaliq Khan and Mohmmad Ramzan Sofi being aggrieved of the order passed by learned City Magistrate, Srinagar preferred revision petition before the learned Ist Additional Sessions Judge, Srinagar. Learned Revisional Court also relying upon the same judgment which was relied by the learned City Magistrate held that the trial Court has not correctly applied the law to the facts of the case in the proper manner which has resulted in miscarriage of justice. He accordingly has recommended that the order dated 31-8-2000 passed by the learned City Magistrate, Sringar under Section 145, Cr.P.C. be set aside. This is how the reference has come before this Court.

(3.) I have heard learned counsel for the parties.