MULKH RAJ Vs. RAM KUMAR

JUDGEMENT

(1.) ORDER :- This reference has been made by the learned Sessions Judge, Jammu wherein prayer is made to set aside order dated 2-8-1997 passed by the learned City Judge, Judicial Magistrate, 1st class Jammu whereby the latter dismissed the application made before him by the petitioner under Section 145, Cr.P.C. and directed the police concerned to deliver the possession of the premises to the respondent after handing over the material/articles lying in the store room to the petitioner. On refusal to accept the material/articles there was a direction for handing over them on 'superdnama' to a respectable person of the locality.

(2.) The facts of the case briefly stated are that the petitioner vide duly executed rent note had taken on rent two rooms and a store on the ground floor of the building located near Mahalaxmi Temple, Pucca Danga, Jammu from Mulkh Raj Bhasin on a monthly rent of Rs. 200/-. Suit for ejectment was filed by the said owner Mulkh Raj Bhasin which is still pending for disposal in the Court of City Judge, Jammu. During the currency of the suit Mulkh Raj Bhasin died and was substituted by the respondent as his legal representative (being adopted son). In the demised premises the petitioner had installed a Paper Cutting Machine, Paper Ruling Machine, Copy Stitching Machine and Perforating Machine and was manufacturing the Exercise Note Books. The case of the petitioner is that on 17-5-1997 after day's work at 8 p.m. he closed the premises and went to his house. Next day (i.e. on 18-5-1997) was a holiday. When on 19-5-1997 at 9 A.M. he came to open the premises he found the respondent in occupation thereof. He had made his entry by breaking open the locks with the help of musclemen. The petitioner made an attempt to regain possession but the attempt was foiled with the help of henchmen. Some articles were found stolen. Dispute of serious nature with regard to possession of the premises arose which was likely to cause breach of peace on spot. On 21-5-97, the petitioner filed application under Section 145 Cr.P.C. before the learned Chief Judicial Magistrate, Jammu who transfered the same for disposal to the Court of learned City Judge, Judicial Magistrate 1st Class, Jammu. The Magistrate on 24-5-1997, was satisfied that the dispute was likely to cause breach of peace and drew a composite order under sub-section (1) and (4) of Section 145, Cr. P.C. requiring the parties to attend his Court in person or by pleader within the specified time and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. He also considered the case of one of emergency and attached the subject of dispute by writing to the S.H.O. Police Station, Pucca Danga, Jammu to look and seal the premises after preparing the inventory of the articles lying therein. The parties let in the evidence on affidavits in support of their respective claims as to the fact of actual possession. After hearing the arguments of the counsel for the parties the learned Magistrate on 2-8-1997 held that there was no forcible occupation of the premises in question as the petitioner voluntarily had surrendered the possession and there existed no apprehension of breach of peace on spot. In the result, the application was dismissed and through the agency of police possession was given to the respondent after handing over all the articles including the machinery lying inside to a ('superdar') appointed by the police.

(3.) The above said order was challenged by the petitioner by filing revision petition (No. 13-A/97) before the learned Sessions Judge, Jammu who after hearing the learned counsel for the parties and perusing the record has recommended, "the impuged order suffers from factual fraility and legal infirmity" and "requires to be set aside". Reference has been made with a request to accept the same and set aside the order.