- (1.) We grant special leave and proceed to dispose of the appeal. The appeal is directed against the order of the High Court of Madhya Pradesh dated April 25, 1986 quashing the final order made under S. 145 of Cr.P.C. in respect of a shop premises. The shop was in possession of one Asgarali son of Akbar Ali as mortgagee since October 17, 1969. On August 7, 1982, Asgarali was said to have leased out the shop to the petitioner and also delivered possession thereof. The entering of possession by the petitioner became a subject matter of dispute. Apprehending breach of peace, the police initiated proceedings under S. 145, Cr. P.C. before the Additional District Magistrate, Ujjain. In that proceedings, the petitioner was party No. 2 and respondent No. 2 was party No. 1. On August 13, 1982, the Magistrate made a preliminary order. The proceedings continued for about three years. On May 17, 1985, the Magistrate made the final order in the following terms:- "Hence I believe that the party No. 2, Jummamal alias Devandass S/o Jethanand had the occupation within two months from 13-8-1982 on which summons were issued by the Court under S. 145 sub-sec. (1). Hence I order that party No. 2 Jummamal is entitled for the occupation of the shop unless he is evicted by procedure established by law. And I issue injunction that there should not be any obstacle in handing over the possession to Jummamal. And if there are locks placed by Motilal or his accomplices, the same should be broken. open. And the goods, if any, found in the shop should be handed over to a responsible person after making a panchnama". It will be seen from the above order that the petitioner is entitled to restoration of possession since he was dispossessed forcibly and wrongfully within the terms of proviso to S. 145 (4) of Cr. P.C. But unfortunately, the petitioner could not be put into possession.
(2.) On July 15, 1985, the respondent filed a suit for injunction. On August 14, 1995, he obtained temporary injunction against the appellant. But upon appeal that temporary injunction was vacated. The learned first Additional District Judge, who delivered the judgment in that appeal, has recorded the following findings : "Consequently it is clear from the above analysis that Asgar Ali was in possession of the disputed shop till 7-8-82. It seems to be his prima facie right to rent out the shop. That it seems that he received the rent in advance, executed the rent deed and transferred the possession to appellant / Jhummamal. As it is mentioned above the First Information Report lodged by Kanhayalal on behalf of Jhummamal in which if is stated that Jhummamal obtained possession on 9-8-82, does not seem right, when only respondent has demanded possession in his petition dated 13-8-82. Hence I believe that Jhummamal obtained the possession of the disputed shop in his capacity as tenant. Respondent and his brothers put their locks later on. And as in my opinion on the date of occurrence of incident, Jhummamal was in possession of the shop, respondent / plaintiff does not have a prima facie case in his favour........... .................................Hence, I believe that the temporary injunction order passed by the lower Court is not just and as per law. Consequently while disagreeing with the order passed by the lower Court, I accept the appeal and quash the order passed by the lower Court."
(3.) In between the parties, there were also certain criminal proceedings regarding the theft from and house trespass on the same premises. A couple of days before the preliminary order was made under S. 145, Cr. P.C. a relation of the appellant filed report before the Police complaining against the respondent. On that report the respondent was prosecuted under Ss. 380 and 454 of the IPC. On February 22,1984, he was convicted of the said offences. But upon appeal, he was acquitted by the Additional District Judge. The revision against the order of acquittal was also dismissed by the High Court.;