Indian Sulphacid Industries Ltd. vs Gurjit Singh and Ors.

M.M.Punchhi, J.—This judgment shall dispose of Criminal Revisions Nos.500 of 1982 and 470 of 1983 since the order under attack is common.

Skeletally put, the facts are these. Land comprised in Khasra Nos.263, 265, 266, 254, 259, 252, 243, 245, 278, 607, 608 and 609 etc. situated at G.T.Road, Khalsa College, Amritsar, become the bone of contention between the manangement of Indian Suphacid Industries Limited, petitioner in Cr. Revision No.500 of 1982 and S/Shri Dev Raj Kapoor, Som Raj Kapoor, Hans Raj Kapoor and Dewand Chand Kapoor respondents. It appears that initially Kapoors had proprietal interest in the said land because they were partners in a firm known as Messrs Sambhu Nath and sons. Later, as it appears the firm Sambu Nath & Sons, together with its assets and liabilities, was taken over by the Indian Sulphacid Industries Limited. Then arose some litigation between the parties. The company obtained a Civil Court decree pertaining to the aforesaid land, as also otherhand to the effect that it was owner in possession of the land in suit, permanently restraining the Kapoors from interfering in its possession. The decree, however, was ex parte. The Kapoors, on the assumption that they were owners in possession of the laand entered into some deals with some people, foremost amongst them being Jang Bahadur Singh, Khazan Singh and a few others. The dispute having brewed up, the police filed a calender in the Court of the Executive Magistrate, Amritsar, complaining apprehension of breach of peace over the disputed land. The learned Magistrate took cognizance thereof. The dispute at that time arose only between the company and the Kapoors. Later, during the pendency thereof, Jag Banadur Singh and others applied for being made parties thereto and their prayer was allowed.

The learned Magistrate was confronted with two facts. The first was that the Kapoors had in the meantime applied to the Civil Court for setting aside the ex parte decree and the matter was pending before the Civil Court. The second fact was that Jang Bahadur Singh and others had in the meantime approached the Civil Court for injunction claiming themselves to be in possession of some of the property in disput, but the civil Court declined their prayer taking the view that the company had already been declared to be the owner in possesion of the property in dispute. Beside these facts, the learned Magistrate had before him copies of revenue papers also the affidavits of the parties.

The learned Magistrate adopted the easy course and declared the Kapoors to be in possession of the property in dispute. He totally undermined the value of the Civil Court decree in favour of the company on the supposition that since it has been sought to be set aside by the Kapoors its efficacy had gone. Secondly, he found entries in the revenue papers yet continuing in the names of Kapoors and thereupon jumped to conclude that they were in possession of the property at least 60 days prior to the passing of the preliminary order under section 145(1) of the Code of Criminal Procedure. He repelled the claim of the intending purchasers, Jang Bahadur Singh and others, on the ground that since as yet no registered sale deed had been executed in their favour, the question of their being in possession did not arise. In that way, he went in accord with the latter Civil Court decree, as pertaining to the intending purchasers, for, the Court, too, had not come to their rescue to declare them in possession. It is in these circumstances that Criminal Revision no.500 of 1982 has been filed by Indian Sulphacid Industries Limited, the company, and the other by the intending purchasers, being Criminal Revision No.470 of 1983, both directed against the order of the Executed Magistrate dated April 1, 1982.

Out of the Kapoors, Som Raj Kumar died during the pendency of these proceedings and his legal representatives had been brought on the record. Two of them, namely respondents Nos. 7 and 9 have been served through publication, but no one has put in appearance on their behalf. Registered A.D.notice sent to Madan Mohan Kapoor, one of them who claims himself to be an attorney of Satish Kapoor, Smt. Kaushalya Seth, Smt. pushpa Mehra and Smt. Rama Mehra, has been received back unserved. All the same, their presence is not essential to dispose of these petitions since their interest is common with the other Kapoors who are represented through counsel.

Parties counsel are at variance as to whether the Civil Court decree in favour of the company was ever set aside or not. Be that as it may, the efficacy of the Civil Court decree could not have been undermined in the manner in which the learned Magistrate did. It is a different matter that he could have applied the caution of waiting for the result of that litigation. But it could not be assumed that an exparte decree was no decree at all in the eye of law. Additionally, the view taken by him that the proceedings before him were of a summary nature and it was not necessary for him to receive any more evidence, was altogether faulty. Section 145(4) clearly postulates that the Magistrate, without reference to the merits or claims of any of the parties to a right to possess the subject of dispute, has to hear the parties and receive all such evidence as may be produced by them and has yet to take further evidence, if any, as he thinks necessary in order to decide as to which party was at the date of the order under Section 145(1), Code of Criminal Proceudre, in possession of the subject of dispute. The matter was not that summary as he opined it to be. Entries in the revenue papers, though having evidentiary value, were not sacrosanc face of the Civil litigation between the parties. The affidavits put in before the learned Magistratre were no evidence in the eye of law in view of the provisions of section 145, Code of Criminal Procedure, as they stand today after the amendment in 1974. Thus, neither, the procedure adopted by the learned Magistrate, nor his approach to the subject, was within the spirit and domain of law. Accordingly that order needs to be and is hereby quashed, remitting the matter back for redecision in accordance with law, after giving the parties a full opportunity of being heard and adducing their evidence. Since there is every chance that the learned Magistrate who passed the order, may no longer be in office and the matter is not only complicated but otherwise is of immense value, I would order this case to be taken up by the SubDivisional Magistrate, Amritsar.

With the aforesaid directions and orders, these petitions are allowed. Parties through their leanred counsel are directed to put in appearance before the SubDivisional Magistrate, Amritsar, on December 20, 1985.