Shaukat Ali vs District Judge and Others

N.B. Asthana,J.

Shaukat Ali filed an application u/s 133, Code of Criminal Procedure alleging that Mohd. Cahill has made encroachment upon passage to the extent of 10 feet and made constructions over it thereby obstructing the public way. Being satisfied with the report of the police, Addl. S.D.M. Khalilabad, Bastl passed a conditional Order u/s 133(1) Code of Criminal Procedure Mohd. Khalil appeared and filed written statement denying encroachment over the public passage and stating that he has filed a suit for permanent injunction restraining Shaukat All and others from interfering in his possession over the subject matter of dispute and demolishing his constructions existing upon it. He also filed an application stating that the proceedings be stayed as in the civil suit a temporary injunction has been granted in his favour. The Addl. S.D.M. rejected this application. Mohd. Khalil filed revision in the Court of Sessions Judge, Basti who placing reliance upon Brahma Nand Rai v. State of U.P. and Ors. 1991 ALJ 1015, vide his order dated 16.9.94 allowed the revision and stayed the proceedings u/s 133, Code of Criminal Procedure till the disposal of civil suit. Aggrieved by it Shaukat All has come to this Court in revision.

I have heard the counsel for the parties and have perused the record. It is not disputed in the counter affidavit filed by Mohd. Cahill that the application for temporary injunction moved in the civil suit before the trial court was rejected and the appeal filed against that order was also dismissed. He has however stated that against that order he filed a writ petition in this Court which is pending. It has however not been stated that any interim order has been passed in that writ petition in his favour.

From the material placed on record it is clear that neither the trial court nor the appellate Court found any prima facie case in favour of Mohd. Cahill regarding the subject matter of dispute. In Brahma Nand''s case it was no doubt held that the pendency of a suit should be deemed to be reliable evidence in support of denial of public right. In such a circumstance the proceedings u/s 133 of Code should remain stayed till final disposal of the civil suit. "But it does not appear that in that case the application for temporary injunction was rejected and the appeal filed was also dismissed as is admitted in this case. The fact of the dismissal of the application for temporary injunction and the appeal would go to show that there was no reliable evidence in support of Mohd. Khalil''s case. In these circumstances there was no Justification for staying the proceedings u/s 133. Code of Criminal Procedure till the disposal of suit.

The revision is accordingly allowed. The impugned judgment and order dated 16.9.94 are set aside. Addl. S.D.M. Khalila bad, Basti would proceed in the matter in accordance with law.