Bombay High Court
Abdul Karim Sheikh And Anr vs Hajari Lalji Singh And Anr on 30 November, 2021
Bench: S. K. Shinde
Digitally
signed by
SHAMBHAVI 33-WP-3081-2021.odt
SHAMBHAVI NILESH
NILESH SHIVGAN
SHIVGAN Date:
2021.12.01
18:53:24
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3081 OF 2021
Abdul Karim Sheikh and Anr. ... Petitioners
Vs
Hajari Lalji Singh and Anr. ... Respondents
...
Mr. Patil Nishigandh Nandkumar for the Petitioner.
Mr. V.R.Tripathi i/by Tripathy & Associates for R.No.1.
Mr. A.R. Patil , APP for the Respondent-State.
CORAM : SANDEEP K. SHINDE J.
DATE : NOVEMBER 30, 2021.
P.C. :
1 That in exercise of the powers under Section
145(1) of the Code of Criminal Procedure, 1973 ("Cr.P.C." for
short), the learned Magistrate passed the following order:
" ORDER
1] It is hereby held that party no.1 is
entitled for possession of upper room of
disputed property and party nos.2 and 3 are
entitled for possession of lower room of
disputed property. Their possession over said
disputed room be restored.
2] Both parties are directed to maintain
peace and they are at liberty not to evict
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each other following due process of law.
3] Copy of order be communicated to
both parties in accordance with law."
2 In revision, the order of the learned Magistrate
was confirmed. These orders are assailed in the instant
petition.
Factual Aspects:
3 On 17th October, 2014, complaint was registered
under Section 145(1) of the Cr.P.C. at the instance of the
respondent no.1 herein ('Complainant' for short) qua the
property, which the respondent claims to have purchased
vide agreement dated 3rd April, 2014 from the petitioners
herein. Property described in the sale agreement was as
under:
"TO 60, 4/10, admeasuring about 15'X10'
situated at Ramgarh, Goshala Road, Mulund (W),
Mumbai 400080."
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4 In October, 2014, complainant instituted a suit in
City Civil Court against the petitioners, seeking, a decree
that, the defendants be directed to quit, vacate and hand
over vacant and peaceful possession of ground floor of the
suit premises viz., TO 60, 4/10, admeasuring about 15'X10'
situated at Ramgarh, Goshala Road, Mulund (W), Mumbai
400080, without disclosing the proceedings initiated under
Section 145 of the Code of Criminal Procedure, 1973. Be
that as it may, the learned Judge, City Civil Court declined
interim relief to the respondent/plaintiff.
5 As such, substantive proceedings qua the
property, which is a subject matter of proceedings under
Section 145 of Cr.P.C. was and is pending before the Civil
Court, which is competent to decide the question of title as
well as possession between the parties. In the case of
Amresh Tiwari v. Lata Prasad Dubey and Another
2000 SCC Criminal 806, the Apex Court has held;
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".....This is because the civil Court is competent
to decide the question of title as well as
possession between the parties and the orders
of the Civil Court would be binding on the
Magistrate."
6 Pending proceedings, complainant amended the
plaint and sought substantive reliefs in the pending suit. It
is so evident from the page 189 of the petition.
7 Although these facts were brought to the notice
of the revisional Court and also the judgment of the Apex
Court in the case of Amresh Tiwari (Supra), the learned
revisional Court did not appreciate the law laid down in the
said judgment, in the context of the facts herein.
8 In consideration of the facts aforesaid, arguable
points are raised. Petition is admitted. Thus, Rule.
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9 Leave to amend. Amendment to be carried out
within two weeks.
(SANDEEP K. SHINDE, J.)
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