ANAND HARI RAHATE Vs. ANANT MAHADEO KOTWAL

JUDGEMENT

(1.) THIS is a petition filed challenging the order passed by the learned 2nd Additional Principal Judge and Additional Sessions Judge, Greater Bombay, on 16th July, 1986 and by which order, the learned Additional Sessions Judge allowed the Revision Application No. 315 of 1985 and set aside the order passed on 18 th November, 1985 by the Metropolitan Magistrate, 21st Court, Bandra, Bombay, in Case No. 45/n/84 on his file.

(2.) THE petitioner had filed an application before the learned Magistrate under section 145 of the Code of Criminal Procedure on the following allegations: the premises, more particularly described in para 2 of the order, were in possession of the petitioner. The structure was divided into two parts. One part was used by the petitioner for the purposes of running a shop in the name and style of Star Electrical Works" which shop premises was used by the brother of the petitioner. The remaining portion was used by the petitioner for the purposes of residence. The respondent forcibly dispossessed the petitioner on 12th March, 1983 while the petitioner was in actual possession of the premises. The petitioner, therefore, filed a proceeding under section 145 of the Code of Criminal Procedure. The learned Metropolitan Magistrate passed preliminary order and issued notice to the respondent. After the receipt of the notice, the respondent appeared in the Court but did not file written statement. The matter was adjourned from time to time on which dates the petitioner continued to attend until 25th October, 1983 when the petitioner application was dismissed by the learned Metropolitan Magistrate, 21st Court on the ground that the applicant and his Advocate were absent. The following order was passed:

(3.) AFTER the issue of the notice, the respondent appeared in the Court and thereafter he remained absent continuously. The learned Magistrate, therefore, proceeded to record the evidence adduced on behalf of the applicant -petitioner on 29-10-1985 in the absence of the respondent. The matter came to be adjourned and on that day also the respondent remained absent and the result was an order dated 18-11-1985. By this order, the learned Magistrate held that the applicant was in possession of the said premises two months prior to 24-3-1983 and entitled to retain such possession until ousted by due process of law and do strictly forbid any disturbance of his possession in the meantime. It is further ordered, "as the applicant was forcibly dispossessed of the premises by the respondent on 12-2-83, the applicant be put in actual possession of the disputed premises by the police. Inform Santacruz Police accordingly. "