Sunday, June 4, 2023

Allahabad HC suspends city magistrate order, seeks response from parties

In the said case the applicants filed their written statements on February 15, 2021. Some report from the Tehsildar was also called and examined.

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The Allahabad High Court on Thursday suspended a city magistrate order decreeing the attachment of a property and fixed the next hearing for April 5.

The single-judge bench of Justice J.J. Munir expressed displeasure at the relief given by the city magistrate after the civil court refused it in the land dispute. The court said the magistrate has overridden the civil court order.

Justice Munir was hearing the Criminal Revision Defective filed by Suresh Kumar and two others. The counsel for the revisionists submitted that he is the owner-in-possession of the disputed property on the basis of a registered sale deed executed by the last recorded owner. His name has been mutated in Corporation records. His construction is underway and were attempted to be unlawfully prevented by respondents, with not much success.

The respondents have instituted Original Suit before the Court of Civil Judge (Senior Division), Allahabad on December 24, 2020 against revisionists for relief of permanent prohibitory injunction to the effect that the revisionists, their agents, servants and associates be restrained from interfering with respondents peaceful possession, usurping of the property in dispute and from raising construction thereon.

It is pointed out that in the said suit, a temporary injunction application was made, asking for a temporary injunction pending suit, with a prayer for ad-interim relief.

The Civil Judge has issued notice on the temporary injunction application, returnable on January 25, 2021, but declined to grant any ad-interim relief. The said temporary injunction application is still said to be pending.

It is argued that failing to secure a temporary injunction order from the Civil Judge (Senior Division) Allahabad, an application, purporting to be one under Section 145 Cr.P.C., was moved before the Executive Magistrate, reporting some kind of a breach of peace.

A further application dated February 4, 2021 was moved to the effect that pending proceedings under Section 145 Cr.P.C., the parties may be restrained from raising any kind of construction and status quo may be maintained at site.

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It appears that on January 23, 2021, the Station House Officer, Police Station Kareilly submitted a Challani Report, on the basis of which, proceedings under Section 145 Cr.P.C., when a preliminary order dated January 30 was passed under Section 145 (1). In the said case the applicants filed their written statements on February 15, 2021. Some report from the Tehsildar was also called and examined.

The Magistrate is conscious about the fact that the question about the rights of parties is engaging the attention of the Civil Court. It has been remarked that the question of title is not before the Civil Court, as the suit is one for permanent injunction.

The Counsel for the revisionists submitted that the remark of the Magistrate is based on his scant understanding of the law, inasmuch as a suit of permanent injunction implicitly carries with it, a declaration of title.

Therefore, the Counsel for the revisionist stated that questions both of title and possession are engaging the attention of the Civil Court, where the Court declined to grant any ad-interim relief to respondents. It is argued that the Magistrate has held that in the absence of temporary injunction order, there is a likelihood of a dispute between parties relating to title and possession, which may lead to breach of peace.

It is submitted that the findings of the Magistrate are about the possibility of a breach of peace, and not definitely about an impending breach of peace. The Magistrate’s findings are, thus, conjectural.

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“The revisionist has not been injuncted by the Civil Court in the suit instituted by the private opposite parties and, therefore, exercise of jurisdiction by the Magistrate appears to be a measure not only duplicating scrutiny of the parties’ case that is already engaging attention of the Civil Court, but virtually overriding the Civil Court, who have not found it to be a fit case for ad-interim injunction in favour of the private opposite parties,”

-the Court said.

“The Court order dated March 25, 2021 passed by the City Magistrate, Prayagraj in Case under Section 145 Cr.P.C., Police Station -Kareilly, District – Prayagraj, shall remain suspended,” the Court ordered.

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