Amritlal N. Shah vs V. Nageswara Rao

Kuppuswami Ayyar, J.—This is a petition to revise the order of the Additional First Class Magistrate of Rajahmundry in M.C. No. 12 of

1944 dropping further proceedings, u/s 145(5), Criminal Procedure Code. The petitioner had taken on. lease the Hanuman Palace also called

Amrit Talkies in Lakshmivarapetta at Raja-mundry from the respondent and another, and he was in possession of the same till 9th September,

1944. The petitioner is a person who belonged to Bangalore and he had taken this building on lease for running cinema shows. The petitioner had

taken a licence. Representing to the District Magistrate that under the terms of the lease the licence should be taken by him only in the name of the

lessor, the lessor, the respondent, got the licence issued to himself, and a notice was also issued saying that the respondent was entitled to

possession. The notice ran as if the District Magistrate had consulted the Government Pleader and had accepted his opinion. Accordingly, when

the petitioner was absent his manager and others were sent out and the respondent went to the Talkies got possession of the property and began

to run the show. The petitioner got information from his manager and other servants and came to Rajamundry and filed this petition. A preliminary

order was issued by the Magistrate, saying that there was a dispute about possession and an apprehension of a breach of the peace. The

respondent was directed to file a statement. Inquiries were also made. Documents were filed. The learned District Magistrate found that the

petitioner was in possession till 9th or 10th October, 1944, when he was dispossessed; but he was of opinion that as there was no subsequent

actual breach of the peace and as the parties were peaceful, no action need be taken and dropped the proceedings.

The Magistrate has found on the evidence that the petitioner was in possession and it is also in evidence that the notice was issued on incorrect

information. There is nothing in the lease to indicate that the petitioner was not to obtain the licence in his own name but should obtain it in the

lessor''s name. To that extent, the representation was wrong and the Magistrate''s notice was therefore based on incorrect information. This is not

disputed, before me. But what is urged before me is that the lease contained a clause of forfeiture for non-payment of rent. As a matter of fact, this

lease was originally for one year, and there was a subsequent settlement under which a larger rent was payable, and the petitioner was paying it. It

is also in evidence that there was a suit for the rent prior to these proceedings and that there was no prayer in that suit for enforcing the forfeiture.

From the records, it is clear that the petitioner was in possession till the date on which he was evicted, and it is true that they did not take up

cudgels or use violence to resist the entry by the respondent. But there if no doubt that in the absence of the petitioner the manager and other

servants had no other go, since the notice of the Magistrate was shown to them; and since it was a notice issued on a mistake, such an eviction

should be considered to be an eviction by force. It is not in all cases that actual force should be used before it could be said that the eviction is a

forcible one. Misrepresentation and improper threats besides these are sufficient to constitute forcible dispossession, and there were these in this

case. It was by getting the licence cancelled and by getting it issued in the name of the lessor and by having the notice issued by the Magistrate that

the servants and others were made to leave. Therefore it cannot be said that the preliminary order of the Magistrate saying that there was an

apprehension of breach of the peace and that there was forcible dispossession was incorrect. As a matter of fact, the further proceedings clearly

indicated this. But what happened is that the petitioner did not take the law into his own hands and enter on the property. If the contention of the

respondent is to be accepted, it would mean that law-abiding citizens who are prepared to leave the matter to be decided by the Court instead of

taking the law into their own hands are not to have the benefit of an order u/s 145, if they are peaceful. This is not a case in which matters should

have to be dropped by reason of Section 145(5). It is only if there has been a subsequent settlement or if the petitioner agreed to give up the lease

hold right it and not claim to get back possession of the property, action can be taken u/s 145(5). Merely because there has been no further

violence, it could not be said that there cannot be a breach of the peace and proceedings should be dropped. As it was found that the petitioner

was in possession and had been evicted only by notice obtained on incorrect representation to the Magistrate and only by the issue of a notice on

such incorrect recitals that the petitioner''s servants have been made to vacate the building, it will have to be considered that there was a forcible

eviction of a person entitled to be in possession.

As pointed out in T. Kamal Kutty and Others Vs. Udayavarma Raja Valia Raja of Chirakkal, it is not necessary that the continuance of a

breach of the peace is necessary before a final order could be passed. Vide also Bai Jiba Vs. Chandulal Ambalal, and Gurditta v. Taza

A.I.R.1939 Lah. 108.

I accordingly set aside the order of the lower Court and instead declare that the petitioner is entitled to be in possession, that he was in

possession, that he was forcibly ousted by the respondent, that he is entitled to have his possession restored, and that he will be put in possession

of the property which is the subject-matter of these proceedings.