Mulkh Raj vs Ram Kumar

G.D. Sharma, J.—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 u/s 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

'superdnarna' to a respectable person of the locality.

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 musciemen. 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 u/s 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.

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.

Heard the arguments.

Mr. V. R. Wazir, the learned counsel for the petitioner has defended the order of reference by stating that the learned Judge has made a critical

appraisal of the evidence of the parties and found the order biased, illegal and perverse. In the absence of any evidence of cogent nature that

possession was voluntarily delivered, the trial Magistrate believed the tainted version of respondent and his witnesses and allowed him to succeed

in his nefarious designs to get the premises vacated, when his civil suit for ejectment was pending. The impugned order has deprived the petitioner

to seek out any livelihood and his family is at the threshold of starvation. Lastly, the learned counsel has reiterated the allegation of the memo of

revision petition made at page 3 that on 23-6-1997 the arguments of the counsel for the parties were heard and case reserved for judgment

without specifying any date. That on 2-8-1997, the learned Magistrate called him (Mr. V. R. Wazir) at 2.30 p.m. in his chambers when the Court

time was over and the peon was closing the Courtroom. In the chambers only the Presiding Officer was present. He told the counsel that the

application has been dismissed. At that time, already the 'docket' for handing over the possession had been delivered to the respondent. Even no

clerk of the Court was present in the Court premises. The learned counsel has also shown the 'docket' which is not addressed to the S.H.O. Police

Station, Pucca Danga but is on the name of Mr. M. L. Bhagat ASU police station, Pucca Danga, Jammu. There is no dispatch number of the

Court on this 'docket' but on the back-side there is a report made by an officer of police station, Pucca Danga, Jammu (dated 2-8-1997) to the

effect that the possession of the premises in question was delivered to the respondent in the . presence of the witnesses. The machines and articles

which were lying inside could not be entrusted to the petitioner as he had refused to accept them so they were entrusted on the ""superdnama"" of

one Vikul Kapoor S/o Madan Lal Kapoor R/o H. No. 856-E Mohalla Jullaga, Jammu. There is a stamp of the Police Station, Pucca Danga,

Jammu on this docket, bearing No. 2231/51 dated4-8-1997 Concluding his submissions the counsel has laid stress that the impugned order was

passed in a partisan manner which has ruined the petitioner.

The learned counsel appearing for the respondent has contended that the learned Sessions Judge has not properly appreciated the evidence

when it has held that there were cuttings and erasers in the depositions of the witnesses of the respondent. That the learned Judge has not taken

any note of similar cuttings which are found in the affidavits of Harjinder Singh, Kuldeep Raj and Chaman Lal who are the witnesses of the

petitioner. That petitioner Mulkh Raj has also sworn three affidavits on different occasions and there are contradictions and improvements in the

depositions made by him, but no note has been taken of this fact.

After considering the respective submissions made on behalf of the parties and perusing the record, it becomes manifestly clear that the story put

up by the respondent that on 10-5-1997 or on 3-5-1997 the petitioner had accepted Rupees Fifteen Thousand from him and handed over the

vacant possession of the premises is false, cooked up and invented to achieve the object of getting into possession of the demised premises.

Though the issue of ejectment was still sub-judice. Had there been an iota of truth in this plea then the suit was required to be compromised or

dismissed and not fixed for hearing on 14-7-1997. There is no unanimity between the depositions of the respondent and his witnesses regarding

the date of payment and acceptance of this sum of Rs. 15,000/- because two dates are being mentioned i.e. 3-5-1997 and 10-5-1997 (fifteen

days earlier to 24-5-1997 as shown in the affidavits). The learned Sessions Judge in his order (of reference) has elaborately and effectively

discussed the factual matrix of the case and drawn right conclusions. The pendency of the ejectment proceedings is a tell tale circumstance to

demolish the whole edifice of respondent's case as it knocks at the bottom. The docket in question is not a plain document as there is no

explanation why it is drawn in the name of a particular police officer and does not bear any dispatch number or receipt number after execution. The

allegations made by the learned counsel regarding the partisan attitude of the learned trial Judge in these circumstances acquires relevance. Great

injustice has been done to the petitioner who has been deprived to carry on his normal business since 19-5-1997. His machinery and other articles

have been taken out from the premises and entrusted to a stranger. Who is going to compensate the petitioner for the loss of earnings, damages to

the property and mental torture. This is a case where the respondent has succeeded to abuse the process of the Court. The impugned order is not

only illegal and perverse but has carried out miscarriage of justice. In this I view of the matter, the reference in question is ' accepted and the

impugned order set aside.

Before parting with this case it will be appropriate in the interest of justice to find out the responsibility of the person/persons who had managed

to secure the execution of the impugned order in suspicious circumstances. The first allegation advanced on behalf of the petitioner is that the

arguments were heard on 23-6-1997 and thereafter the case was fixed for judgment but no date was specified and that on 2-8-1997 the counsel

for the petitioner was called in the chambers at 2.30p.m. (after Court hours) and the order was announced but the 'docket' in question stood

already issued for getting the premises vacated. The 'docket' in question should have been addressed to S.H.O. Police Station, Pucca Danga,

Jammu but it is issued on the name of a particular police officer, namely, Sh. M.L Bhagat, ASI. There is no dispatch number as well as the receipt

number of the Court on this 'docket'. There is no receipt number dated 2 8-1997 from the Police Station, Pucca Danga, Jammu. So how this

docket directly came in the hands of Sh M- L. Bhagat, ASI who on the same day (2-8-1997) executed the Court order after taking out the

Biachinery and other articles from the demised premises and entrusted the same to a stranger, namely, Vipul Kapoor s/o Madan Lal Kapoor R/o

H. No. EP-856, Mohala Jullaga, Jammu who runs a shop in the same vicinity. It is to be seen whether the petitioner was given any notice or not

for vacating the premises. The Registrar (Vigilance) shall hold an inquiry about a|! the above stated surrounding suspicious circumstances and make

a report to the Registrar General within three months. In case any misconduct of an official officials is established the Registrar General shall place

the report before Lord Chief Justice for appropriate orders. The Registrar (Judicial) shall make the whole record available to the Registrar

(Vigilance) for conducting the inquiry. Furthermore the Registrar (Judicial) shall get the premises in question vacated through the agency of

concerned police forthwith and handover the vacant possession to the petitioner along with the seized machinery and articles which are in the

custody of the 'superdar'. The expenses, if any incurred any shall be borne out by the respondent. Incharge, Police Station, Pucca Danga, Jammu

shall render all possible help to get this order implemented. A copy of the order be sent to the Registrar, General for information and record.

Any observations made hereinabove will not influence the proceedings of the ejectment suit which are pending in the same Court. The petitioner

can also seek any other legal remedy nor the loss and inconvenience caused to him in case he chooses to do so.