N.B.Asthana - (1.) SHAUKAT Ali filed an application under Section 133, Cr. P.C. alleging that Mohd. Khalil has made encroachment upon passage to the extent of 10 feet and made constructions over it thereby obstructing the public way. Being satisfied with the report of the police, Addl. S.D.M. Khalilabad, Basti passed a conditional order under Section 133 (1), Cr. P.C. Mohd. Khalil appeared and filed written statement denying encroachment over the public passage and stating that he has filed a suit for permanent injunction restraining SHAUKAT Ali and others from interfering in his possession over the subject matter of dispute and demolishing his constructions existing upon it. He also filed an application stating that the proceedings be stayed as in the civil suit a temporary injunction has been granted in his favour. The Add). S.D.M. rejected this application. Mohd. Khalil filed revision in the Court of Sessions Judge, Basti who placing reliance upon Brahma Nand Rai v. State of U. P. and others, 1991 ALJ 1015, vide his order dated 16.9.94 allowed the revision and stayed the proceedings under Section 133, Cr. P.C. till the disposal of civil suit. Aggrieved by it SHAUKAT Ali has come to this Court in revision.
(2.) I have heard the counsel for the: parties and have perused the record. It is not disputed in the counter affidavit filed by Mohd. Khalil that the application for temporary injunction moved in the civil suit before the trial court was rejected and the appeal filed against that order was also dismissed. He has however stated that against that order he filed a writ petition in this Court which is pending. It has however not been stated that any interim order has been passed in that writ petition in his favour. From the material placed on record it is clear that neither the trial court nor the appellate Court found any prima facie case in favour of Mohd. Khalil regarding the subject matter of dispute. In Brahma Nand's case it was no doubt held that the pendency of a suit should be deemed to be reliable evidence in support of denial of public right. In such a circumstance the proceedings under Section 133 of Code should remain stayed till final disposal of the civil suit. "But it does not appear that in that case the application for temporary injunction was rejected and the appeal filed was also dismissed as is admitted in this case. The fact of the dismissal of the application far temporary injunction and the appeal would go to show that there was no reliable evidence in support of Mohd. Khalil's case. In these circumstances there was no justification for staying the proceedings under Section 133, Cr. P.C. till the disposal of suit. The revision is accordingly allowed. The impugned judgment and order dated 16.9.94 are set aside. Addl. S.D.M. Khalilabad, Basti would proceed in the matter in accordance with law. Revision allowed.;