Jai Prakash and Others vs Devi Prasad and Others

Yogendra Kumar Sangal, J.—This petition u/s 482 Code of Criminal Procedure was filed with the prayer that the order passed by learned S.D.M. in proceedings u/s 145 Code of Criminal Procedure in favour of the opposite party No. 1 to 4 regarding the property in dispute (copy of the order passed by the learned S.D.M. is annexued as Annexure No. 1) and the order dated 19.10.2004 passed by learned Additional District Judge, Sultanpur, Court No. 4, Sultanpur affirming the above order (copy annexure No. 2) be set aside and record be sent to the court below for further proceedings in the matter.

This matter was listed in the list of cases where no interim stay order has been passed or the further proceedings has not been stayed or by efflux of time, case appears to have become infructuous. Objections were filed in the matter on behalf of the Petitioners saying that petition did not became infructuous. These objections were filed along with affidavit, by Sri Sakha Ram Tiwari, Advocate holding brief on behalf of Sri S.K. Mehrotra, learned Counsel for the Petitioners.

Heard counsel and perused the record.

Record shows that proceedings u/s 145 Code of Criminal Procedure were initiated regarding the land in dispute in the Court of learned S.D.M. concerned in which the Petitioners were joined as second party while Respondents No. 1 to 4 were as first party. A preliminary order was passed by the learned S.D.M. on 11.11.1980 u/s 145(1) CrPC. Written statements were filed by both the parties in the matter. Earlier some order was passed by the learned S.D.M. in the proceedings u/s 145 Code of Criminal Procedure and that order was challenged in revision before the learned Session Judge in Revision No. 42/1982 and that revision was allowed and order passed by learned S.D.M. dated 04.08.1983 was set aside and case was sent back to the court of learned Magistrate for disposal of the matter u/s 145 Code of Criminal Procedure afresh in the light of observations made in the body of the judgment.

Again after giving opportunity of evidence and hearing to both the parties, learned Magistrate held the possession of the property in dispute of the first party since before 2 months of the start of the proceedings u/s 145 Code of Criminal Procedure and it was directed by the learned S.D.M. to deliver the possession of the property in dispute to the first party. Against this order a Revision No. 145/1998 was filed before the learned Session Judge, which was also dismissed. Challenging these two orders, this petition has been filed.

Undisputed facts are that there is no stay order in the matter. The revisional court has passed the impugned order on 19.10.2004, but this petition was filed on 18.03.2005 with inordinate delay. It is correct that there is no limitation is provided for filing the petition u/s 482 CrPC, nevertheless, petition is expected to be filed within a reasonable time i.e. 90 days also prescribed for filing revision or appeal generally. Petition filed in the present case suffers from vice of delay and latches.

Moreover, the learned S.D.M. has passed the order of transferring the possession on 28.08.1998 to the first party of the proceedings u/s 145 CrPC. Revision filed was dismissed on 19.10.2004 and this petition was filed after great delay of more than 5 months. During this period, in compliance of the order of the court, possession was not delivered to the first party, it is nowhere stated on behalf of the Petitioners on oath. Moreover from the record and order passed by learned S.D.M., it is clear that a remedy was provided to the Petitioners by the learned S.D.M. that first party of the case is entitled to remain in possession of the property in dispute till then. Second party did not get any order in his favour. It was open for the second party i.e. the Petitioners to go before appropriate forum i.e. civil or revenue court to get declare their rights regarding the property in dispute and obtained a decree of the court to get possession on the property in dispute. Record also shows that civil suit regarding the property in dispute between the parties are going on. Parties were free to apply in that court for interim relief why second party/Petitioners has not sought that remedy, it is also not clear from the record.

It is established law that in the proceedings u/s 482 Code of Criminal Procedure disputed questions of facts are not decided. Second party-Petitioners may have their defence regarding title and possession of the property in dispute in the matter, but they have efficacious remedy to go before the Civil Court or Revenue Court as the case may be for obtaining such order in their favour.

Seeing the facts and circumstances of the case, I do not find any sufficient ground for interference in proceedings u/s 482 Code of Criminal Procedure by this Court in the impugned orders passed by two courts below i.e. concurrent findings of two courts. Accordingly, petition is hereby dismissed.