ZAREEFA Vs. HABIB LONE

JUDGEMENT

(1.) I have heard the learned Counsel for the petitioner and have also gone through the record. When the case came up for hearing, the respondent No.1 did not appear Despite a long wait, his counsel also did not appear to argue the case. The case was fixed for hearing on 4th of July 1989, and the learned Counsel for the petitioner was heard on that day. Since then, till today i.e. the date of pronouncement of this order, neither the respondent No.1 and nor his counsel appeared or made any application for being heard in this case.

(2.) From the perusal of record it transpires that the disputed property belonged to one Mst. Saja. On her death she left behind two sons Assad Wani and Habib Wani besides a daughter Rehmat. Assad Wani has also died leaving behind a daughter named Mst. Zarifa who is allegedly, a KhananishinT daughter of her father. Habib Wani filed a civil suit in the court of the learned Sub Judge, Bijbehara, for declaring him to be the sole owner of the land in question, and for injunction against the other alleged owners. The learned Trial Court issued a temporary injunction in favour of Habib Wani against the other owners, the defendants in the suit. The said suit was filed on 20-1- 87. The ad-interim injunction also was passed on the same date. The same plaintiff i.e Habib Wani on 3-6-1988 filed an application under Section 145 of the Criminal Procedure Code, before the learned Assistant Commissioner (R) Executive Magistrate 1st Class, Anantnag and got the land attached in the said application, he has not made any mention of the civil suit filed by him or the ad-interim passed in his favour. For these reasons, the petitioners herein have challenged the proceedings in question, in this petition.

(3.) The short point for determination in this petition is whether the initiation of proceedings in question under Section 145 of Criminal Procedure Code, is an abuse of the process of the court.