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PETITIONER: RAVI RAMAN PRASAD AND ANR.

       Vs.

RESPONDENT: STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT02/02/1993

BENCH: SHARMA, L.M. (CJ) BENCH: SHARMA, L.M. (CJ) RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1994 AIR  109            1993 SCR  (1) 393  1993 SCC  (2)   3        JT 1993 (4)   526  1993 SCALE  (1)442

ACT: Code of Criminal Procedure, 1976: Sections  144,  145, 482-Property restored  to  owner-Tenant restrained  from entering the property-Fresh application  by tenant  rejected-Order  becoming  final-On  application   by tenant  High Court directing Police to take possession  till disposal of Title Suit filed by him-Validity of.

HEADNOTE: Respondent  No. 4 was a tenant in a residential house  owned by  the appellants.  He claimed that there was an  agreement for  sale  of the property to him and  in  part  performance thereof  he  continued  in  possession  of  the  house   and therefore  he could not be evicted.  An eviction suit  riled appellants  against  Respondent  No.  4  was  decreed.    In execution of the decree, the appellants were put in physical possession  of  the  house with the  aid  of  police  force. Thereafter  in  a bid to take over possession  of  the  said house,  Respondent  No.  4 opened fire  and  the  appellants lodged  FIR with the police.  Proceedings under section  144 of  the Code of Criminal Procedure was drawn up by the  Sub- Divisional  Magistrate.  The proceeding ended in  favour  of the  appellants,  and Respondent No. 4 was  restrained  from entering upon the property.  The Criminal Revision  Petition preferred  by  Respondent No. 4 was dismissed  by  the  High Court. Later,  Respondent No. 4 again riled an  application  before the S.D.M. for initiating proceedings under section 145  Cr. P.C.  and the same was dismissed.  Since this order was  not challenged, it became final. Thereafter  Respondent  No. 4 filed a Title Suit.   He  also filed  an application under section 482 Cr.P.C.  before  the High  Court claiming the same relief as was  claimed  before the S.D.M. The High Court in its judgment directed that  the possession  of the house shall be with the police  till  the disposal  of  the  suit.  The  appellant’s  application  for recalling  the  judgment  was rejected by  the  High  Court. Being aggrieved by the said 394 judgment, the appellants preferred the present appeals.

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Allowing the appeals, this Court, HELD  : 1. The High Court failed to appreciate  the  crucial fact  that the appellants were not put in possession of  the property by the Sub Divisional Magistrate on the termination of the proceeding under Section 144 Cr.P.C. but had obtained actual physical possession thereof earlier in the  execution of  the eviction decree with police aid and the  status  quo was   restored  by  the  Sub-Divisional   Magistrate   while disposing  of the proceeding under section 144  Cr.P.C.  and dismissing the application of respondent No. 4 for  starting a fresh proceeding under section 145 Cr.P.C. On the  finding arrived  at by him, the Sub-Divisional Magistrate  took  the right  step in restoring the possession of the  property  to the  appellants,  who  had  been  for  a  temporary   period restrained  from  entering upon the same.   The  application made by respondent No.4 under section 482 Cr.P.C. was thus a gross abuse of the process of the Court. [396D-F] 2.   By  virtue  of  an  interim order  of  this  Court  the appellants have remained in possession of the house and they shall  continue  to do so until respondent  No.4  obtains  a decree  in his favour in the pending suit  and  dispossesses the appellants in accordance with law. [396G]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.  213- 214 of 1993. From  the  Judgment and Order dated 11.10.91 and  3.9.91  of Patna,  High  Court in Crl.  Misc.   Jurisdiction  Case  No. 3064/91 (R) & Crl.  Misc.  No. 1263 of 1991. S.N. Sinha for the Appellants B.B Singh and Ms. P. Khata (for Ms. Rani Jethmalani) for the Respondents. The Judgment of the Court was delivered by SHARMA,  CJ.   Heard the learned counsel  for  the  parties. Special leave is granted. 2.   The dispute in the case relates to a residential  house which 395 admittedly  belongs to the family of the appellants and  was in  possession  of  respondent  No.  4  as  a  tenant.   The appellants  and  their  father filed  a  suit  for  eviction impleading  respondent No. 4 as a party, which was  decreed. In  execution  of  the decree the  appellants  were  put  in physical  possession  of the house with the  aid  of  police force.   The  case of respondent No.4 is that there  was  an agreement  for  sale  of the property to  him  and  in  part performance thereof he continued in possession of the  house and was, therefore, not liable to be evicted.  He has  filed Title Suit No.27 of 1991 in the Court of Munsif, Hazaribagh, on  the  basis  of  the alleged  agreement  which  is  still pending.  He continued to assert his possession of the house and was not reconciled even after his dispossession with the aid  of  the police force, and ultimately an  incident  took place on 15.9.1991 which is the subject matter of a  pending criminal case.  According to the appellants respondent No. 4 opened  fire in a bid to take over possession of  the  house and a first information report was lodged with the police. 3.   At  this  stage a proceeding under Section 144  of  the Code  of  Criminal  Procedure  was  drawn  up  by  the  Sub- Divisional  Magistrate and both the parties were  restrained from  entering  upon  the property.  After  the  matter  was examined,   the   Sub-Divisional  Magistrate   decided   the proceeding  on  11.10.1990  in  favour  of  the  appellants.

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Relying  upon  the  fact of delivery of  possession  of  the property to the appellants in pursuance of the Civil Court’s decree  and  the  other materials on the  record,  the  Sub- Divisional  Magistrate restrained the respondent No. 4  from entering  upon the property.  Some further facts  have  been stated by the appellants in their special leave petition  in this  regard,  which  do not appear to be  relevant  at  the present  stage,  and  it is sufficient  to  mention  that  a criminal  revision  petition by respondent  No.  4  directed against the Sub-Divisional Magistrate’s Order was  dismissed by  the High Court.  On 22.1.1991, that is, more than  three months   after   the  Sub-Divisional   Magistrate’s   Order, respondent  No. 4 filed a fresh application before the  same Sub-Divisional Magistrate for initiating a proceeding  under Section 145 Code of Criminal Procedure-, which was dismissed by a reasoned order, pointing out the existence of  eviction decree against the respondent No. 4 and the fact of delivery of possession of the property to the appellants in execution thereof This order was not challenged and became final.   It was only thereafter that the Title Suit by respondent No.  4 was filed in Munsif s Court.  On 23.4.1991, respondent No. 4 made  an  application  under Section 482  Code  of  Criminal Procedure  before the High Court substantially for the  same relief   which   was  claimed  before   the   Sub-Divisional Magistrate.  He did not 396 set out complete facts in his application, High Court mainly relied  upon  the fact of delivery of the  movable  articles found  in  the property by the authority  concerned  to  the parties  in pursuance of the final direction issued  in  the proceeding  under  Section  144  of  the  Code  of  Criminal Procedure  and  prayed for dispossession of  the  appellants from  the  house.  The appellants appeared before  the  High Court  and  placed  full facts, but the High  Court  by  the impugned  judgment  directed  that the  house  shall  be  in possession  of  the Officer-in-charge of  the  Mandu  Police Station till the disposal of the Title Suit.  The appellants moved an application before the High Court for recalling its judgment,  which  was heard by the Division  Bench  and  was dismissed. 4.   According to the impugned order of the High Court, when on the initiation of the proceeding under Section 144 of the Code  of  Criminal  Procedure  both  the  parties  had  been restrained from entering upon the property, it was not right for  the  Sub-Divisional  Magistrate  to  have  allowed  the appellants  later  to take possession of the  property.   An examination of the impugned judgment will show that the High Court  failed  to  appreciate  the  crucial  fact  that  the appellants  were  not put in possession of the  property  by Sub-Divisional Magistrate on the termination of the proceed- ing  under Section 144 Code of Criminal Procedure,  but  had obtained  actual physical possession thereof earlier in  the execution  of  the eviction decree with police aid  and  the status  quo  was restored by the  Sub-Divisional  Magistrate while  disposing of the proceeding under Section 144 of  the Code of Criminal Procedure and dismissing the application of the  respondent No. 4 for starting a fresh proceeding  under Section  145  of  the Code of Criminal  Procedure.   On  the finding  arrived  at by him, the  Sub-Divisional  Magistrate took  the  right  step in restoring the  possession  of  the property  to  the appellants, who had been for  a  temporary period   restrained  from  entering  upon  the  same.    The application  made by respondent No. 4 under Section  482  of the Code of the Criminal Procedure was thus a gross abuse of the  process  of the court, which the High Court  failed  to

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appreciate.  We, accordingly allow the appeal, set aside the impugned judgment and dismiss the application of  respondent No.  4 made before the High Court.  By virtue of an  interim order of this Court the appellants have remained in  posses- sion  of  the house and they shall continue to do  so  until respondent  No.  4  obtains a decree in his  favour  in  the pending  suit and dispossesses the appellants in  accordance with law. G.N.                                   Appeals allowed. 397