R.S.MONGIA,J - (1.) THIS petition has been filed by Ramesh Kumar Goyal for quashing the proceedings under sections 145 and 146 of the Code of Criminal Procedure pending in the Court of Sub Divisional Magistrate, Sirsa. The proceedings before the Magistrate are between the petitioner and Arun Kumar-respondent No. 3 and the same arose because of the dispute regarding the possession of shop No. 5, Gandhi Market, Sirsa. Both the parties were claiming that they were in possession of the disputed shop and right to possession was also being asserted. On 22.10.1992 the Sub Divisional Magistrate, Sirsa issued notice to the parties under section 145(1) of the Code of Criminal Procedure, which reads as under:- "S.H.O. City Sirsa has reported that two parties are showing their possession of shop No. 6 at Gandhi Market, Sirsa. First Party is stated to be partner in this shop and sometimes earlier party was seen to be sitting in this shop. In the Municipal Committee Sirsa, Ramesh Goyal is the bidder of this shop while the second party is showing its right in the shop, so there is dispute between the two parties with regard to this shop, hence apprehension trouble. So you are hereby informed by this notice that your appear in this Court on 9.11.1992 at 10 a.m. yourself or through your counsel otherwise ex-parte proceedings shall be initiated against you."
(2.) THE shop had been locked by the police authorities, Arun Kumar filed a criminal miscellaneous No. 10162-M of 1992 in this Court for quashing the proceedings under section 145/146 of the Code of Criminal Procedure. It was stated before the learned Judge hearing the above petition that in the civil suit for declaration filed by respondent No. 3-Arun Kumar in the Court of Senior Sub Judge, Sirsa, temporary injunction had been granted in his favour on 9.1.1992 against the respondent in the suit (i.e. the petitioner in the present petition) restraining him from dispossessing him (Arun Kumar) from the shop in dispute. Since the matter regarding temporary injunction was pending before the Civil Court for final disposal, this Court disposed of the above said petition on 18.11.1992 by directing the Civil Court to decide the temporary injunction matter between the parties finally by passing a speaking order. It may be observed that learned counsel for Arun Kumar (the petitioner in that case) and the learned A.A.G., Haryana conceded during the hearing of that case that they would have no objection in the delivery of the possession of the shop in question to the petitioner (Arun Kumar) and/or to unseal the shop to enable the petitioner (Arun Kumar) to carry on his business in case the learned Senior Sub Judge decided to confirm the ad-interim injunction order issue in favour Arun Kumar. Temporary injunction matter was disposed of by the Senior Sub Judge, Sirsa on 24.11.1992 holding that in view of the documentary evidence produced before the Court, the petitioner-Ramesh Kumar (who was defendant No. 1 before the trial Court) was proved prima facie to be in possession of the shop in dispute as tenant under the Municipal Committee, Sirsa since 1983 and he had been paying rent to the Municipal Committee regularly. The temporary injunction application of Arun Kumar was dismissed. The appeal filed by Arun Kumar before the Additional District Judge, Sirsa was also dismissed on 16.8.1993. Copy of the judgment has been attached as Annexure P/4 with this petition. During the course of judgment, it has been observed by the learned Appellate Court as follows:- "On careful scrutiny of the material on the record, it is evident that the plaintiff indulged in gross and open manipulation of the records by false representations to establish his possession on the disputed shop and he has played hide and seek." It was further observed that according to the bid sheet of auction dated 16.2.1982, the present petitioner Ramesh Kumar was the highest bidder for taking the shop on rent from the Municipal Committee at the rate of Rs. 330/- per month. The entries in the rent and demand registers of the Municipal Committee for the year 1990-91, 1991-92 and 1992-93 showed Ramesh Kumar Goyal to be the tenant of the disputed shop under the Municipal Committee and that he had been paying the rent to the Municipal Committee. It was thereafter held as under:- "This from the reliable documents regarding tenancy of defendant No. 1 since 1982, it can be prima facie said that the defendant No. 1 is in possession of the disputed shop as tenant under defendant No. 2/Municipal Committee, Sirsa and that the plaintiff is neither tenant nor in possession of the said shop." After making some other observations against the plaintiff (Arun Kumar), ultimately the Appellate Court held as under:- "For the reasons recorded above, I find that prima-facie the plaintiff is not in possession of the disputed shop and rather defendant No. 1 is in possession thereof." It is stated at the Bar that the revision petition of Arun Kumar against the abovesaid judgment of the appellate Court was dismissed in limni by this Court.
(3.) LEARNED counsel for the petitioner argued that in view of the stand taken by the petitioner (who was a respondent in Crl. Misc. No. 10162-M of 1992 filed by Arun Kumar) and the State counsel that in case the temporary injunction granted by the civil Court in favour of Arun Kumar was confirmed, then the shop in dispute would be opened by the police authorities and the possession would be handed over to Arun Kumar. When civil Court dismissed the temporary injunction application of Arun Kumar and found prima-facie that the present petitioner was in possession of the disputed shop, it was in the fitness of the things that the possession of the disputed shop should have been handed over to the present petitioner by the police authorities. Further, it was argued that in view of the findings recorded by the trial Court and upheld upto the High Court that it is the petitioner who was in possession of the shop in dispute, the question of any proceedings being taken under section 145/146 of the Code of Criminal Procedure does not arise as there is no dispute regarding the possession of the petitioner over the shop in question If ultimately the suit of Arun Kumar succeeds in Civil Court for getting the possession, naturally the possession will be delivered in obedience of any such decree.;