1999 ALL MR (Cri) 41


Jamilabi Mohd. Salim Shaikh Vs. The State Of Maharashtra & Ors.

Cri Writ Petition No.431 of 1997

20th August, 1998

Petitioner Counsel: Shri N.H. GURSAHANI with Shri S.G. SURANA and Shri S.H. GURSAHANI
Respondent Counsel: Shri M.P. GALERIA, Shri P.K. DHAKEPHALKAR with Shri. DINESH ADSULE

Criminal P.C. (1973), S.397 - Finding about possession - Magistrate discarding evidence of suit pending for 14 years, notice by Housing Board to respondent to vacate rooms for repairs and fact that property was in possession of Housing Board just prior to filing of complaint and relying solely on a single rent receipt produced by petitioner - Held revisional court rightly interfered to set aside the finding of the trial court. (Para 6)


JUDGMENT :- This is yet another instance of the police interfering unnecessarily in a genuine civil dispute where both the rival parties had dispute regarding possession of a room and resorted to Section 145 of Cr.P.C. under the guise that there is likelihood of a breach of peace.

2. The matter arises out of a complaint made before the P.I., Pydhonie Police Station by one Smt.Zubeda Kasam, third respondent herein. She claims to be residing on the 4th Floor (Northern Side) of Haji Ahmed Devji Building situated at 99, Mohammed Ali Road, Bombay - 3. She went to the police station on 28.3.1991 and lodged complaint that she has been using disputed room for the last several years and an attempt was being made to dispossess her by one Majid who is the son of Jamilabi, the petitioner herein. It was alleged that Majid and 2/3 unknown persons came to her room and broke open the lock put on the room and took away Rs.95,000/- kept in the cupboard which was kept in the said room. Ultimately, this complaint led to the initiation of the proceedings by the Addl. Chief Metropolitan Magistrate, 30th Court, Ballard Estate under the provisions of Section 145 of Cr.P.C.

3. On issuance of process by the Magistrate, both the petitioner and respondents filed their pleadings and adduced their evidence to prove the possession of the room in dispute as on 28.03.1991. The learned Magistrate by its order dated 28.07.1995 has found that the petitioner is in possession of the suit room on the relevant date. Against this finding, the third respondent filed Revision before the Court of Sessions, Greater Bombay under Sec.397 of Cr.P.C. as Criminal Revision Application No.271 of 1995. The Revisional Court set aside the order of the learned Magistrate and found that the third respondent was in possession of the disputed room on the relevant date. It is against this order, that the petitioner approached this court by way of this writ petition purported to be filed under Article 227 of Constitution of India.

4. The main contention of the learned counsel for the Petitioner Shri. N.H. Gursahani in this case is that the learned Sessions Court should not have upset the findings entered by the Magistrate with regard to the possessions of the suit room and substitute his own finding. This is not permissible as he is not exercising the appellate jurisdiction. The revisional court tresspasses its jurisdiction in doing so. Nextly he contended that the order of the learned Magistrate is not vitiated by any error apparent on the face of the record and therefore, no interference is warranted at the hands of the revisional court. The learned counsel for the petitioner lastly submitted that the learned Sessions Court had reappreciated the evidence which is also not allowable under Section 397 of Cr.P.C. Therefore, he submits that this court in exercise of the power under Article 227 of the Constitution should interfere the finding of the Revisional Court and upheld the findings of the Magistrate.

5. The learned counsel for the third respondent Shri.Dhakephalkar, however, contested these contentions raised by the learned counsel for the petitioner. He submits that none of the illegalities pointed out by the learned counsel for the petitioner has been committed by the Revisional Court. The Revisional Court only found that some material document produced by the parties before the Magistrate has been misread by the learned Magistrate and came to a different finding.

6. The crucial question in this case is as indicated above as to who was in possession of the disputed room as on 28.3.1991. The Third respondent has traced out her possession of the disputed room through her father. Her case is that her father was in possession of the disputed room along with other two rooms on the 4th floor of the aforesaid building from the Trust as tenant and after her father's death, she and her brother with family were occupying those three rooms and for some time for the convenience two rooms were permitted to be occupied by brother and family and she was in occupation of the disputed room which was used as kitchen. In 1983, Housing Board found that the building was in dilapidated condition and it was dangerous to human life and required repairs. So they issued notice to vacate the same in 1983. Accordingly, occupants of the building including third respondent vacated the building so as to facilitate to undertake the repairs of the building. It is her contention that after completion of the repairs in 1991, an attempt was made at the instance of the landlord to create false tenancy in favour of the petitioner herein and the Rent Collector in collusion with petitioner issued receipt in her favour to create false tenancy to deprive her of her legitimate right of tenancy. She further contended that on an undisputed point of time, as far back as 1977, she had filed a suit for injunction restraining the landlord from interfering her possession. The suit is pending. She has produced certified copy of the plaint in the proceedings. It is true that she was not able to produce any other documentary evidence except producing some witnesses.

On the part of the petitioner, it was contended that tenancy was created in January 1991 in her favour and receipt was obtained for having paid rent to the landlord for Jan,1991 and produced the rent receipt. On considering rival contentions, the learned Magistrate has heavily relied upon the rent receipt produced by the petitioner and discarded the other evidence.

6. The learned Sessions Judge has found fault with the Magistrate for not taking into consideration the import and importance of the suit pending since 1977 at the instance of the third respondent in the Civil Court. The learned magistrate has neglected those documents on the ground that the petitioner was not party to that suit. The learned Sessions Court has found the document which was in existence at an undisputed point of time would have outweighed the effect of solitary rent receipt produced by the Petitioner. The learned Sessions Court also found that the notice issued by the Housing Board to third respondent which is a clinching evidence that at the time of issuance of notice of vacating the room for repair third respondent was occupying the building. The Learned Sessions Judge also noted the evidence of Mr.Raajendra Koteja, Dy. Engineer, MHADA, who had stated that the third respondent took objection to vacate the room on the basis of the Civil Suits pending in City Civil Court. It is admitted case that from 1983 to 1991 the entire building was in possession of the Housing Board. In view of this, the learned Sessions Court has found that the learned Magistrate has committed error in not considering and appreciating the evidence before it. It is not, as submitted by the learned counsel for the petitioner, that the learned Judge was substituting its own finding. It is clearly an error committed by the Magistrate in not taking into account the impact of the pendency of the civil suit filed by the third respondent against her landlord. An overwhelming evidentiary value of that suit has been discarded by the Magistrate while entering into a finding in regard to the possession of the disputed room. Thereby the learned Magistrate has committed serious miscarriage of justice. The learned sessions Judge was fully within his power in interfering with the order of the Magistrate.

7. In view of this, I do not find any reason to interfere with the Revisional Court's order. This court is not expected to interfere unless it is shown that an error apparent on the face of the record is pointed out in the impugned order.

8. In this result, writ petition is dismissed. No orders as to costs. Receiver appointed by this court is directed to hand over possession of the disputed room to third respondent within eight weeks from the date of this order.

Rule discharged in the above terms.

After pronouncement of the judgment, the learned counsel for the petitioner prays for stay of the operation of the judgment for six weeks. Prayer is granted. Operation of the judgment is stayed for a period of six weeks.