P K ANTIA Vs. SHRIDHAR SADASHIV KATDARE

JUDGEMENT

(1.) Respondent No. 1 Dr. S.S. Katdare, filed an application, purporting to be an application under the provisions of section 145 of the Criminal Procedure Code, against the present applicant, Dr. P.K. Antia, on December 17, 1980 and it was registered as Application No. 4/N/81 of 1980 on the file of the Additional Chief Metropolitan 23rd Magistrates Court, Bombay. I am told that after this application was filed by Dr. Katdare, a show cause notice was issued to Dr. Antia, who appeared in Court and filed a reply on February 8, 1981. The learned trial Magistrate proceeded to pass a preliminary order under the provisions of sub-section (1) of section 145 of the Criminal Procedure Code on February 25, 1981, having no material other then the averments in the application of Dr. Katdare and the reply filed by Dr. Antia. It is this preliminary order, annexed to the petition as Ex. C, that is being challenged in this petition by the original respondent, Dr. P.K. Antia.

(2.) Before enumerating the challenge to the impugned preliminary order, it will be necessary to briefly refer to the facts alleged by the original applicant, Dr. Katdare. According to him, in July 1954, he along with Dr. M.D. Deshmukh, Dr. M.M. Wagle and his wife Dr. (Mrs.) Jayanti Wagle and Dr. D.V. Doshi, negotiated with the Cricket Club of India Ltd. for leasing their premises, being Shop No. 2 on the 2nd floor of Stadium House, Churchgate, Bombay, for starting their respective medical practices. The entire premises consist of five chambers and one common hall and one common toilet. The common hall was used by all the doctors for accommodating waiting patients. Out of the five chambers, which could be used for the medical practice, one remained vacant because Dr. Katdare, Dr. Wagle along with his wife, Dr. Deshmukh and Dr. Doshi occupied one chamber each. The fifth vacant chamber was adjacent to the chamber of Dr. Deshmukh. The chamber allotted to Dr. Katdare was the biggest of all the five chambers. Dr. Katdare got the biggest chamber because being a radiologist, it was necessary for him to fix the X-ray machine in his chamber. It is this chamber which was originally allotted to Dr. Katdare that forms the subject-matter of this dispute. Dr. Katdare fitted his X-ray machine in the biggest chamber after securing 440 Volts A.C. current power line in his own name at his own costs. He also got fitted three phase to one phase transformer, automatic circuit breakers and a developing desk. All these facts are stated in paragraphs 1 to 3 of the application filed by Dr. Katdare and according to the written statement filed by Dr. Antia, the contents of paragraphs 1 to 3 are substantially correct. In November 1954, Dr. Antia, who is the friend of Dr. Deshmukh was inducted in the spare room, adjoining the room of Dr. Deshmukh, which was vacant. He did not become a lessee along with the original five lessees inclusive of Dr. (Mrs.) Wagle, but he started contributing towards the rent and the maintenance charges by depositing various amounts in the account of "Churchgate New Clinic." Dr. Katdare did active practice in the disputed chamber allotted to him as a co-lessee from July 1954 to April 1976. Prior to April 1976, Dr. Katdare suffered a mild heart attack in April 1974 and suffered detachment of retina in April 19075. He decided to go out of India for taking rest. His son Dr. Suhas S. Katdare and his daughter-in-law Dr. (Mrs.) Asha S. Katdare were practising in Australia at the relevant time and, therefore, before going out of India, Dr. Katdare decided to dispose of the X-ray machine and Short Wave Diathermy apparatus. Dr. M.D. Deshmukh and Dr. P.K. Antia together purchased the X-ray machine for Rs. 30,000 each of them contributing in equal share. On purchase of the X-ray machine, Dr. Deshmukh suggested to Dr. Katdare that he should be allowed to use the bigger chamber since it was that room which was supplied with 440 Volts. A.C. Current and removing the X-ray machine and fixing it in some other room would cost at least Rs. 10,000. It is alleged by Dr. Katdare in his application under section 145 of the Criminal Procedure Code that there was an explicit understanding that Dr. Deshmukh would remove the X-ray machine and cease to use the disputed chamber on return of Dr. Katdare from Australia or on return of his son Dr. Suhas Katdare or his daughter-in-law Dr. (Mrs.) Asha Katdare. Dr. Deshmukh was to pay compensation for the use of the room equal to the amount of the lease money that was payable by Dr. Katdare for the bigger chamber. The short Wave Diathermy apparatus was not sold and, therefore, Dr. Deshmukh was told to sell it in due course and to pay the amount to the original applicants daughter Mrs. Kirti Kharkar, w/o Captain Kharkar.

(3.) It is further alleged that in the first week of August 1980, Dr. Katdare wrote to Dr. Deshmukh that he was coming back to Bombay before the end of October 1980. After his return to India, that is, on October 21, 1980, when Dr. Katdare went to the disputed bigger chamber with his son-in-law Capt. Katdare, he found that his name plate on the ground floor of the building was removed, that his name and his sons name from the Churchgate New Clinic Board were deleted and that his painted name on the door of his premises erased and instead the name of respondent, P.K. Antia, was put on the Board. It is further alleged that the belongings of Dr. Katdare mentioned in Exs. A and B were also absent from the said chamber. Dr. Deshmukh was not in that chamber and, therefore, Dr. Katdare met Dr. Antia in the evening and made inquiries as to how he had taken possession of the chamber in question. He was told that Dr. Antia presumed that he was not coming back and, therefore, took possession of the chamber in question. It is further alleged that Dr. Antia told Dr. Katdare that he would not vacate the premises and hand over possession and would not allow Dr. Katdare to enter the disputed chamber. According to Dr. Katdare, on receipt of his letter in August 1980 that he was coming to India in October 1980, Dr. Deshmukh asked Dr. Antia to shift to his own room and to use his own room thereafter Dr. Antia shifted from the room of Dr. Deshmukh and occupied the bigger chamber which was being used by Dr. Deshmukh during the absence of Dr. Katdare from India. It is alleged that Dr. Antia occupied the bigger chamber in spite of the disapproval of Dr. Deshmukh. It is further alleged that Dr. Antia told Dr. Katdare that he was even ready to take the law in his own hands and was not worried even if there was any breach of peace or show down. In the circumstances, Dr. Katdare alleged in his application under section 145 of the Criminal Procedure Code that if he went to his chamber to protect his rights in respect of the said chamber he apprehended that Dr. Antia would indulge in violence leading to breach of peace.