Gujarat High Court
Mahendrabhai Khushalbhai Patel vs State Of Gujarat on 26 August, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8394 of 2018
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2019
In R/SPECIAL CRIMINAL APPLICATION NO. 8394 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8395 of 2018
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2019
In R/SPECIAL CRIMINAL APPLICATION NO. 8395 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No to see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== MAHENDRABHAI KHUSHALBHAI PATEL & 1 other(s) Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:
DR. SHAILESH R. PATEL(6044) for the Applicant(s) No. 1 MR VIRAL K SHAH(5210) for the Applicant(s) No. 1,2 MR RR MARSHALL, Senior Advocate with MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 2 [SCR. A. No.8394 of 2018] MR ASPI KAPADIA for the Respondent(s) No. 2 [SCR.A. No.8395 of 2018] MS MAITHILI MEHTA, APP for the Respondent(s) No. 1 ========================================================== Page 1 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI Date : 26/08/2022 COMMON CAV JUDGMENT 1 By way of these petitions under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioners have challenged two almost identical orders / proceedings by way of two different petitions. Since barring the number of proceedings, survey numbers of land and sale deeds executed in respect of two different portions of land, all the facts are almost identical, both the matters are heard together and are now being decided together. For the purpose of deciding the matters, facts of Special Criminal Application No.8394 of 2018 are considered.
2 On 3.8.2022, the following order was passed:
"Heard Mr.Viral Shah learned advocate for the petitioners in both the petitions, learned senior advocate Mr.R.R.Marshall with learned Page 2 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 advocate Mr.Daifraz Havewala for Respondent No.2 in Special Criminal Application No.8394 of 2018 and learned advocate Mr.Aspi Kapadia for Respondent No.2 in Special Criminal Application No.8395 of 2018 and learned Additional Public Prosecutor Ms.Maithili Mehta for Respondent No.1
- State Authorities.
With the consent of the parties both the matters were taken up for final hearing. Arguments concluded. Reserved for Judgment / Order.
Learned advocates for the respective parties are in agreement to the fact that though the record is bulky and matter was argued by pointing out to the revenue litigations as well as civil matters pending before this Court, this Court may consider only the validity of the impugned orders and, therefore, this Court shall confine itself only to the impugned orders."
3 In view of the above order, Rule.
Ms.Maithili Mehta, learned Additional Public Prosecutor, waives service of rule for State respondent in both the petitions. Learned advocate Mr.Daifraz Havewalla waives service of rule on behalf Page 3 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 of respondent No.2 in Special Criminal Application No.8394 of 2018 and learned advocate Mr.Aspi Kapadia waives service of rule on behalf of respondent No.2 in Special Criminal Application No.8395 of 2018. 4 In Special Criminal Application No.8394 of 2018, the petitioners have prayed to quash and set aside the judgment and order dated 30.8.2018 passed in Criminal Revision Application No.235 of 2011 by the learned 13th Additional Sessions Judge, Surat and order dated 24.6.2011 passed in Court Case No.16 of 2011 under Section 145 of the Code of Criminal Procedure, 1973 by learned In-charge Additional Executive Magistrate, Surat City and further prayed to dismiss the proceedings initiated by the respondent No.1 being Court Case No.16 of 2011 as being not maintainable in the eye of law. 5 Heard Mr.Viral Shah, learned advocate for the petitioners, Mr.R.R.Marshall, learned Senior Advocate with Mr.Daifraz Havewalla, learned advocate for respondent No.2 in Special Criminal Application Page 4 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 No.8394 of 2018 and Mr.Aspi Kapadia, learned advocate for respondent No.2 in Special Criminal Application No.8395 of 2018 and Ms.Maithili Mehta, learned Additional Public Prosecutor for State respondent, in both the petitions.
6 Brief facts giving rise to the present petition are stated as under:
6.1 One Khushalbhai Nathabhai, who happens to be father of the petitioner No.1 and Rameshbhai Khushalbhai Patel, respondent No.2, who expired on 24.10.2008, had purchased agricultural land bearing survey Nos.53 and 54 situated in Village Gaviyar, Taluka and District Surat (hereinafter referred to as, `land in question') on 23.4.1966 and revenue entry to that effect was mutated in the revenue record being Mutation Entry No.487 on 23.4.1966.
After Khushalbhai Nathabhai Patel, petitioner No.1 and his brother Rameshbhai Khushalbhai Patel became owners of the land in question. Respondent No.2 claims to be tenant of the petitioner No.1 as his Page 5 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 father Lakhubhai Durlabhbhai was cultivating the land in question and he claims to be a protected tenant of the land in question and after death of his father, who expired on 9.4.1980, respondent No.2 claims to be protected tenant of the land in question. It is the case of respondent No.2 that he is in actual possession of the land in question since last 30 years.
6.2 In the year 1993, respondent No.2 and others preferred Regular Civil Suit No.512 of 1993 and in that suit they prayed for declaration that in respect of the suit land, the petitioner does not have any right to take away possession of the land in question and prayed for such type of declaration. In an application for stay, the respondent No.2 herein prayed for injunction whereby it was prayed that the defendant of the said suit (petitioner No.1 herein) be restrained from taking over the possession of the land in question till final disposal of the suit. In the said suit vide order dated 27.4.1993, the learned IInd Joint Civil Judge (SD), Surat passed order of Page 6 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 status quo in favour of the plaintiffs (respondent No.2 herein and others) and directed the petitioner No.1 to maintain status quo till the written statement is filed by the defendant. In the said suit, the petitioner No.1 was joined as defendant No.4. However, the learned IInd Joint Civil Judge (SD), Surat vide order dated 16.3.1999 passed below Exh.5 dismissed the said application preferred by the respondent No.2 on the ground that the plaintiff (respondent No.2 herein) could not produce any documentary evidence to show that they are the tenants of the suit land and they could merely produce an interim order of interim injunction granted by Tenancy Mamlatdar in favour of the plaintiff (respondent No.2 herein) restraining the defendant Nos.3 to 11 from disturbing the possession and observed that such order would not mean that the plaintiffs are actually in possession of the suit land.
6.3 The aforesaid order dated 16.3.1999 was not challenged by the original plaintiff (respondent No.2 Page 7 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 herein) and the suit is also pending till the date. 6.4 In between, some proceedings under the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as, `the Tenancy Act') were initiated by respondent No.2 wherein he failed before the Mamlatdar & ALT as also before the Collector, Surat. Before the Mamlatdar, Surat, the respondent No.2 herein preferred Ganot Case Nos.2 of 1999, 3 of 1999 and 4 of 1999 under Section 70(B) of the Tenancy Act for declaring them as tenants. However, vide order dated 28.6.2013 the above applications came to be dismissed by the Additional Mamlatdar & ALT (Tenancy), Taluka Choryasi, District Surat. The said order was confirmed by the Deputy Collector and City Prant, Surat vide order dated 31.3.2013 passed in Tenancy Appeal No.14/13 challenging the order dated 28.6.2013 passed by the Additional Mamlatdar & ALT (Tenancy), Taluka Choryasi, District Surat. 6.5 Against the said order dated 31.3.2013, the defendant No.2 preferred revision application under Page 8 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 Section 76 of the Tenancy Act being Revision Application Nos.TEN/BS/110/2014 and TEN/BS/111/14 and the Gujarat Revenue Tribunal vide order dated 16.7.2014 granted status quo and directed both the parties to maintain status quo in respect of the land in question till final disposal of the revision application. Against the order dated 16.7.2014 passed by the Gujarat Revenue Tribunal, the petitioner preferred revision application No.TEN/CS/1/2014, which was dismissed vide order dated 29.7.2015. 6.6 The petitioner No.1 preferred Special Civil Application No.4555 of 2017 under Article 226 of the Constitution of India and challenged the orders dated 16.7.2014 and 29.7.2015 passed by the Gujarat Revenue Tribunal. In the said petition, initially ad interim relief was granted in favour of the petitioner. However, while disposing of the petition, vide order dated 16.6.2017 this Court directed the Gujarat Revenue Tribunal to dispose of revision applications within a period of four weeks from 29.6.2017 and directed the parties to maintain status quo as on the Page 9 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 date.
6.7 Thereafter, it was submitted by the parties that the Gujarat Revenue Tribunal quashed and set aside the impugned orders passed by the Mamlatdar & ALT and Deputy Collector and remanded the matter to the Mamlatdar & ALT. However that order was also challenged before this Court wherein by way of the interim relief an order of status quo is passed and the matter is pending before the learned Single Judge of this Court. It is also stated by the parties that against the order of learned Single Judge, Letters Patent Appeal is preferred by respondent No.2, but the same is not yet circulated.
6.8 In the meantime, ON 30.4.2011, respondent No.2 preferred application under Section 145 of the Code of Criminal Procedure, being Criminal Procedure Code Section145 Case No.16 of 2011 before the Court of learned Executive Magistrate & Mamlatdar, Surat and prayed for declaration that the applicant is having possession of the land in question and the Page 10 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 defendants be restrained from disturbing the peaceful possession of the applicant (respondent No.2 herein). The aforesaid application dated 30.4.2011 was decided by the In-charge Additional Executive Magistrate, Surat City, Surat vide order dated 24.6.2011 wherein he decided as under:
[a] The defendant No.2 was declared to have been in peaceful possession of the land in question for a period prior to 2 months from the date on which the cause of action arose.
[b] The parties were directed to maintain law and order situation in respect of the possession of the land in question and in case if peace and law and order situation is disturbed, the Police Inspector, Umra was directed to take necessary action.
[c] The parties were directed that the aforesaid order would be subject to the outcome of Regular Civil Suit No.512 of 1993 and Regular Page 11 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 Civil Suit No.151 of 2011 or any other civil suit, if are pending before any other civil court.
[d] In view of the order dated 24.6.2011 earlier order dated 4.5.2011 would stand quashed.
6.9 Vide order dated 4.5.2011, the Court passed an interim order and prima facie formed an opinion that respondent No.2 is in possession of the land in question and restrained the opponents to disturb the peaceful possession of the applicant (respondent No.2) and in that event of disturbance of law and order situation, Police Inspector, Umra was directed to take necessary action.
6.10 However, the aforesaid order was quashed by the learned In-charge Additional Executive Magistrate, Surat City passed order dated 24.6.2011, which is already referred to hereinabove.Page 12 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022
R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 6.11 The petitioner challenged the aforesaid order by way of Criminal Revision Application No.235 of 2011 before the Court of learned Sessions Judge, Surat. Upon an application for stay in the said application, vide order dated 2.7.2011 the learned 3rd (Adhoc) Additional Sessions Judge, Surat passed order directing the parties to maintain status quo in respect of the land in question till 8.7.2011 and further directed the petitioner to give an undertaking that he would maintain status quo in respect of the land in question and would not change it. According to the advocates for the parties, the aforesaid order of status quo granted on the basis of undertaking given by the petitioner was in operation till the revision was finally decided. 6.12 Ultimately, Criminal Revision Application No.235 of 2011 was dismissed by learned 13 th Additional Sessions Judge, Surat vide order below Exh.97 dated 30.8.2018 wherein he inter alia observed that during the pendency of the revision application, the petitioner concealed the fact that while the Page 13 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 order of status quo was in operation, he sold away the land in question in favour of petitioner No.2 by way of registered sale deed. However, the aforesaid facts were concealed from the revisional court. After observing the aforesaid facts, ultimately the revision application preferred by the petitioners were dismissed vide order dated 30.8.2018. Hence by way of the present petitions, the petitioners have challenged the order passed in Criminal Revision Application No.235 of 2011 by way of Special Criminal Application No.8394 of 2018.
6.13 Out of two petitions, as far as first petition is concerned, it is originated from application under Section 145 of the Code of Criminal Procedure, preferred by respondent No.2 in respect of land bearing survey No.53 + 54 at Village Gaviyar, which was numbered as Criminal Procedure Section 145 Case No.16 of 2011 and the proceedings before the revisional court was numbered as Criminal Revision Application No.235 of 2011 and against order passed in the revision, Special Criminal Application No.8394 Page 14 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 of 2018 was preferred.
6.14 In respect of the land bearing survey No.63 of Village Gaviyar, Taluka and District Surat, a similar application was preferred by respondent No.2, which was numbered as Code of Criminal Procedure Section 145 Case No.17 of 2011 and against the order passed by the learned Magistrate, revision application was preferred by the petitioner, which was numbered as Criminal Revision Application No.236 of 2011. Barring the aforesaid differences in proceedings and survey numbers of land as well as date on which the petitioner No.1 executed sale deed in favour of petitioner No.2, all the facts by and large are similar in respect of both the petitions, and therefore, though both the matters are heard together, facts of Special Criminal Application No.8395 of 2018 are stated in this judgment. 7 Mr.Viral Shah, learned advocate for the petitioners while challenging both the impugned orders passed by the learned Magistrate as well as Page 15 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 learned Sessions Judge, submitted that the provisions of Section 145 of the Code of Criminal Procedure and powers therein are misused by the respondent No.2. He also submitted that both the courts below have committed error by ignoring the fact that in Regular Civil Suit No.512 of 1993 vide order dated 16.3.1999 an application for stay below Exh.5 was dismissed by the competent civil court and thereby the possession of respondent No.2 therein believed after 12 years and thereafter the petitioners tried to establish their possession over the land in question in indirect manner. Mr.Shah, learned advocate for the petitioners, further submitted that both the courts below have committed manifest error by ignoring the above vital aspects as respondent No.2 could not produce any documentary evidence, which would establish his possession when the application below Exh.5 was submitted and decided in Regular Civil Suit No.512 of 1993. He further submitted that though respondent No.2 is claiming to be the tenant in respect of the land in question, till date not one revenue authority has passed any final order in his Page 16 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 favour and even after 40 years after he claims to be the tenant in respect of the land in question, respondent No.2 could not establish till date that he is the tenant of the land in question.
7.1 Mr.Viral Shah, learned advocate for the petitioners, submitted that after having failed in civil dispute in establishing the possession, respondent No.2 has made another attempt to establish his possession by way of application under Section 145 of the Code of Criminal Procedure. He further submitted that both the courts below ought not to have believed the say of respondent No.2 and should have refrained from forming an opinion as to who is having possession of the land in question. Learned advocate Mr.Shah further submitted that civil suits pending between the parties is the only appropriate legal remedy under which possession of the parties can be decided and the respondent No.2 has miserably failed in establishing his possession. Therefore, both the impugned orders are required to be quashed and set aside.
Page 17 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 7.2 Mr.Viral Shah, learned advocate for the petitioners, relied upon the judgment of the Hon'ble Supreme Court in the case of Ashokkumar vs. State of Uttarakhand reported in 2013(3) SCC 366 and by relying upon the aforesaid judgment submitted that object of Section 145 of the of the Code of Criminal Procedure is merely to maintain law and order situation and to prevent breach of peace and while exercising powers under Section 145 of the Code, the Magistrate ought not to have carried out any fishy inquiry and thereby to put the respondent No.2 in possession.
7.3 Learned advocate Mr.Shah further relied upon order dated 17.12.2019 passed by this Court in Civil Application (for vacating stay) No.1 of 2019 in Special Civil Application No.2452 of 2019 preferred by respondent No.2 whereby the respondent No.2 preferred an application for vacating the interim relief in a petition preferred by the petitioner challenging the order passed by the learned Gujarat Page 18 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 Revenue Tribunal. Learned advocate Mr.Shah pointed out that the application for vacating interim relief preferred by respondent No.2 was dismissed by a co- ordinate Bench by taking into consideration the merit of the matter and thereafter in the said petition now Rule is issued and ad interim relief granted earlier of the nature of status quo is confirmed till the final decision of the petition. Against the aforesaid order dated 17.12.2019, the respondent No.2 preferred Letters Patent Appeal. However, the aforesaid Letters Patent Appeal was never circulated and today in respect of the dispute in respect of tenancy rights of the petitioner, the petition is pending before this Court. He further submitted that if in view of the aforesaid facts, the orders passed by the learned Magistrate, which was confirmed by the learned Sessions Judge in revision application are allowed to stand in that case both the orders would run contrary to each other, and therefore, both the impugned orders are required to be quashed and set aside. 7.4 Mr.Shah, learned advocate for the Page 19 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 petitioners, relying upon the decision of the Hon'ble Apex Court in the case of Siddeshwar Temple Trust Committee vs. Malingaraya Temple Charitable Trust (R) reported in 2020(18) SCC 417, submitted that once civil suit is pending between the parties, parallel proceedings under Sections 145 and 146 of the Code cannot take place.
7.5 Mr.Shah, learned advocate for the petitioners, relying upon the judgment of this court in the case of Bhanumatiben Suryakant Doshi vs. Vanrajsinh Hirabhai Chavda reported in 2001(2) GLR 1216, submitted that if proceedings under Section 145 of the Code are initiated after institution of civil suit, the Magistrate should not take action under Section 145 of the Code where as civil court concerning same property is filed.
7.6 By making the aforesaid submissions, Mr.Viral Shah, learned advocate for the petitioners prayed for quashing and setting aside the impugned orders by allowing both the petitions. Page 20 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 8 Mr.R.R.Marshall, learned Senior Advocate with learned advocate Mr.Daifraz Havewalla and learned advocate Mr.Aspi Kapadia for respondent No.2, vehemently opposed the petitions. They raised preliminary objection as to the locus of the petitioners as well as maintainability of the petitions. Mr.Marshall, learned Senior Advocate as well as learned advocate Mr.Kapadi submitted that after having sold away the land by way of registered sale deed in the year of 2014 to petitioner No.2, now the petitioner No.1 does not have any right, title or interest over the land in question. They submitted that as the registered sale deed is executed in respect of the disputed land in favour of petitioner No.2, now the petitioner No.2 has stepped into the shoes of petitioner No.1 by way of registered sale deed, all the rights in respect of the land in question available for petitioner No.1 are now assigned to petitioner No.2. Therefore, the petitioner No.1, who has sold away the land to petitioner No.2 upon receipt of consideration, does Page 21 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 not have any locus to challenge the impugned orders. 8.1 Learned Senior Advocate Mr.Marshall and learned advocate Mr.Kapadia further submitted that as far as the petitioner No.2 is concerned, though two different sale deeds were executed in his favour in respect of two different parcels of land as back in the year 2013, the petitioner No.2 remained idle till the revision application was decided against the petitioner No.1. They submitted that the petitioner No.2 acted as fence sitter and both the petitioners deliberately concealed this fact from the revisional court that despite the order of status quo granted by revisional court, on the basis of an undertaking given by petitioner No.1, by flouting the aforesaid undertaking petitioner No.1 has parted with the land in question. They submitted that both the petitioners have not approached this Court with clean hands as was the case before the revisional court. The record does not indicate that at any point of time before transferring the land in question in favour of the petitioner No.2 by way of registered sale deeds, the Page 22 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 petitioner No.1 never sought any permission from the revisional court. Both learned Senior Advocate Mr.Marshall and learned advocate Mr.Kapadia submit that even the registered sale deed does not mention about the pendency of the revision application against the order passed in an application under Section 145 of the Code of Criminal Procedure. The sale deed is absolutely silent about the ongoing litigation about the tenancy dispute. By submitting the aforesaid facts, both learned Senior Advocate and learned advocate for respondent No.2 submit that this Court may not entertain these petitions as the petitioners have not come with clean hands before this Court. In the petitions, there are no averments to justify their act as to why and under what circumstances, petitioner No.1 transferred land in question by way of registered sale deed in favour of petitioner No.2 and why before executing sale deed in favour of petitioner No.2, no permission was taken from the revisional court or even after execution of sale deed, the said facts were not disclosed to the revisional court, thought the order of status quo was Page 23 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 granted by the revisional court on the basis of undertaking tendered by petitioner No.1. 8.2 Both the learned Senior Advocate and learned advocate for respondent No.2 submitted that as the petitioners have not approached the Court with clean hands, this Court may not show any sympathy towards the petitioners and dismiss the petitions. Since the aforesaid facts were suppressed, learned counsels for respondent No.2 relied upon judgment of the Hon'ble Apex Court in the case of Oswal Fats And Oils Limited vs. Additional Commissioner (Administration) Bareilly Division, Bareilly reported in 2010(4) SCC 728. Both learned Senior Advocate and learned advocate for respondent No.2 also relied upon judgment of this Court in the case of Prathmesh Farms Pvt. Ltd. vs. Dahiben Bhanabhai in Special Civil Application No.15211 of 2012 and submitted that if a person, who does not come to the Court with clean hands, he should not be granted equitable relief. 8.3 By relying upon the aforesaid two Page 24 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 judgments, Mr.R.R.Marshall, learned Senior Advocate with Mr.Daifraz Havewalla, learned advocate for the respondent No.2 in Special Criminal Application No.8394 of 2018 prayed for dismissal of the petition on the ground of suppression of material facts itself.
8.4 Mr.Aspi Kapadia, learned advocate for respondent No.2 in Special Criminal Application No.8395 of 2018 further raised preliminary objection as to the maintainability of the petition by stating that since by way of the petition the orders passed by the subordinate courts are challenged, the petitioners were required to file petition under Article 227 of the Constitution of India and not under Article 226 of the Constitution of India as shown in the cause title of the petitions and on that ground also he prayed for dismissal of the petitions. 8.5 Both learned Senior Advocate and learned advocate for respondent No.2 thereafter made submissions on merit of the matter and submitted that Page 25 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 order passed by the civil court which has been heavily relied upon by the petitioners in Regular Civil Suit No.512 of 1993 was passed on 16.3.1999, whereas the application under Section 145 of the Code of Criminal Procedure was preferred by respondent No.2 in the year 2011 i.e. after 12 years. They jointly submitted that while dismissing the application for stay, the learned IInd Joint Civil Judge (SD), Surat observed two things that the respondent No.2 could not produce any documentary evidence to show that they are tenants of the suit land and that simply they have produced the interim injunction granted by Tenancy Mamlatdar restraining defendant Nos.3 to 11 from disturbing their possession, which does not mean that they were in actual possession of the suit land.
8.6 By pointing out the aforesaid aspects, learned Senior Advocate and learned advocate for respondent No.2 submitted that even the day on which the interim order was passed whereby Exh.5 was rejected there was an interim order in favour of Page 26 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 respondent No.2, as regards the possession, which was not believed by the learned civil court. Further the aforesaid order was passed merely because there was no documentary evidence available with respondent No.2 to establish that they were the tenants. They further submitted that the tenancy proceedings are altogether different proceedings for which different hierarchy of proceedings are prescribed under the law and that remedy has already been exhausted by respondent No.2, and therefore, the order which was passed in the year 1999 may not be considered. 8.7 Learned Senior Advocate Mr.Marshall further submitted that there is ample material in favour of respondent No.2 to indicate that they are in possession of the land in question. He further submitted that while passing the impugned order, the learned In-charge Executive Magistrate, Surat City has categorically observed that both the parties did produce affidavits of number of persons to show that the plaintiff and respondent No.2 were enjoying the possession of the land in question, which would show Page 27 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 that there are words against words. However, the important aspect on that issue was the affidavits produced by defendant No.2 of the persons, who painted the board on the compound wall indicating the possession of defendant No.2. Further, the defendant No.2 could produce the bills of sand and mettle, affidavits of persons, who carried out fencing work, ploughed the land by tractor, etc., which would clearly indicate that respondent No.2 was in possession of the land in question.
8.8 Learned Senior Advocate Mr.Marshall further pointed out that both the parties i.e. petitioners and respondent No.2 claimed to be in possession of the land in question and deployed guards for securing their possession and both the parties alleged that the guards deployed by them were beaten by the other side to disturb the possession in respect of the land in question and ultimately tried to lodge police complaints. However, ultimately, the complaint filed by the respondent No.2 for beating up the security guards by the petitioners was believed and pursuant Page 28 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 to that FIR being CR No.I-128 of 2011 dated 19.4.2011 for the offences punishable under Sections 324, 506(2), 114 and 188 of the Indian Penal Code was registered against the petitioners by one Ibrahim Pathan, who was the security guard of respondent No.2 to secure the possession of the respondent No.2 of the land in question which would indicate that the respondent No.2 was in possession of the land in question.
8.9 Learned Senior Advocate Mr.R.R.Marshall and learned advocate Mr.Aspi Kapadia for respondent No.2 submitted that the order passed by the learned In- charge Additional Executive Magistrate, Surat was based upon findings of facts and the same is confirmed in the revision application by the learned Sessions Court. Considering the fact that there is very little scope for interfering with the findings of facts arrived at by the learned Magistrate, in revision application Sessions Court dismissed the application preferred by the petitioners. Therefore, this Court may consider the concurrent findings by Page 29 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 both the courts below coupled with the fact that the petitioners have not approached this Court with clean hands and prayed for dismissal of the petitions. 8.10 Learned Senior Advocate Mr.Marshall and learned advocate Mr.Kapadia for respondent No.2 also relied upon the photographs produced by them and tried to canvass before this Court that the land in question was having walled fencing and persons, who carried out fencing have also filed their affidavits in favour of respondent No.2 and the security guard protecting possession of the respondent No.2 also filed a complaint which were considered by the courts below, and therefore, since the impugned order passed by the In-charge Additional Executive Magistrate is on the basis of facts, which has been confirmed in the revision application, the same may not be disturbed and prayed for dismissal of the petitions. 8.11 Learned Senior Advocate and learned advocate for respondent No.2 relied upon the judgment of the Hon'ble Apex Court in the case of R.H.Bhutani Page 30 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 vs. Miss Man. J. Desai reported in AIR 1968 SC 1444 and submitted that in application under Section 145 of the Code of Criminal Procedure, sufficiency of material cannot be inquired into in revision application.
8.12 Learned Senior Advocate and learned advocate for respondent No.2 also relied upon the judgment of the Hon'ble Apex Court in the case of Prakash Chand Sachdeva vs. The State and Anr. reported in AIR 1994 SC 1436 and submitted that it is true that usually when civil suit is pending, the Magistrate should not exercise his powers under Section 145 of the Code and decide the issue in respect of possession of the land. However, where the dispute is not right to possession, but of question of possession, the Magistrate is empowered to take cognizance under Section 145 of the Code. 8.13 Learned Senior Advocate and learned counsel for respondent No.2 also relied upon the judgment of this Court in the case of Pratamesh Pharms Pvt. Ltd. Page 31 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 Vs. State of Gujarat in Criminal Revision Application No.326 of 2006 judgment dated 19.12.2016 and submitted that as held by the Court that the order of Magistrate under Section 145 of the Code is only one out of several evidences, hence considering the interim order of other litigation, the order of the Executive Magistrate could not be assailed as illegal and there is concurrent jurisdiction with both the authorities civil court and executive magistrate. 8.14 By making the above submissions, learned Senior Advocate and learned advocate for respondent No.2 prayed for dismissal of both the petitions. 9 I have heard learned Senior Advocate and learned advocates for the parties. I have also perused the record of both the petitions and also considered various judgments cited by respective parties. Before discussing the submissions of the learned counsels for the parties, on perusal of record, it is found that the petitioner preferred an application below Exh.138 by stating that the civil Page 32 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 court does not have any authority or jurisdiction to hear and decide Regular Civil Suit No.512 of 1993 in view of the bar of Section 85 of the Tenancy Act. The aforesaid application was preferred by the petitioner on 31.10.2012 i.e. after the learned In- charge Additional Executive Magistrate, Surat passed order dated 24.6.2011 in application under Section 145 of the Code being Application Nos.16 and 17 of 2011 were decided against the petitioner and even after the application for stay preferred by the petitioner in the Criminal Revision Application Nos.235 and 236 of 2011 were decided by learned IInd (Adhoc) Additional Sessions Judge, Surat vide order dated 2.7.2011 whereby the parties were directed to maintain status quo in respect of the possession of the land upon petitioner filing undertaking to that effect.
9.1 Meaning thereby, during the pendency of the revision application, the petitioner, who preferred revision application also preferred application under Order 7 Rule 11(d) of the Code of Civil Procedure in Page 33 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 the Regular Civil Suit No.512 of 1993. In the aforesaid application on 10.5.2013 Principal Senior Civil Judge (SD), Surat passed order and partly allowed the aforesaid application and referred the matter to the Mamlatdar & ALT, Choryasi to determine as to whether respondent No.4 is in possession of the land in question by virtue of their tenancy rights or not. While passing the aforesaid order, the learned Principal Senior Civil Judge directed the Mamlatdar & ALT, Choryasi to decide and communicate decision to the concerned court latest by 29.6.2013 and further decided that whether the suit preferred by the respondent No.2 barred by Order 7 Rule 11(d) of the Code of Civil Procedure or not that would be decided only after the Mamlatdar & ALT, Choryasi decides the aforesaid aspect of possession in respect of land in question.
9.2 Though the aforesaid facts in respect of application under Order 7 Rule 11(d) of the Code of Civil Procedure was not pointed out by any of the counsels appearing for the parties, on perusal of the Page 34 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 record, this Court found that the aforesaid application was preferred by the petitioner and it was decided and partly allowed vide order dated 15.5.2013. Though the aforesaid point was not argued by learned counsels for the parties since the order passed on that application below Order 7 Rule 11(d) of the Code of Civil Procedure also will have some bearing on the subject matter of the case on hand, I have taken note of the aforesaid fact while determining the issue on hand.
9.3 First, I deal with the preliminary objection raised by learned counsels for the respondent No.2. As far as the locus of the petitioner Nos.1 and 2 is concerned, I have considered the submissions made by the learned counsels for the parties. It is not disputed by learned advocate for the petitioner Mr.Shah that the petitioner No.1 has sold away the land to petitioner No.2 by way of two registered sale deeds in the year 2013 and that now the petitioner No.2 has stepped into the shoes of petitioner No.1. In view of the Page 35 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 aforesaid disputed fact, now after having sold away the land in question, the petitioner No.1 cannot be said to be an interested party as far as an application under Section 145 of the Code of Criminal Procedure is concerned.
9.4 So far as petitioner No.2 is concerned, though even the locus of the petitioner No.2 is questioned by learned counsels for the respondent No.2 to challenge the impugned orders passed by learned Magistrate as well as learned Sessions Court, considering the fact that the petitioners would be non-suited on the ground of locus, if such submission is accepted in that case both the petitioners would be non-suited on the basis of their locus. Considering the fact that the petitioner No.2 has by virtue of two registered sale deeds executed in his favour has stepped into the shoes of petitioner No.1 and has acquired all the rights that the petitioner No.1 was possessing, and therefore, it cannot be said that the petitioner No.2 has no locus to challenge the orders below. Merely because the petitioner No.2 Page 36 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 did not prefer application for joining as party in the revision application at the relevant point time and preferred these petitions belatedly after execution of sale deeds in his favour, the right to challenge the orders by which he is an aggrieved party, and therefore, on the ground of delay such right to challenge the aforesaid orders cannot be taken away from the petitioner No.2. Therefore, the present petitions are maintainable qua petitioner No.2 as now by virtue of two different sale deeds, the petitioner no.2 has stepped into the shoes of petitioner No.1 who was a necessary and interested party right from the year 1993 in which Regular Civil Suit No.512 of 1993 was preferred against the petitioner No.1. Therefore, I hold that the petitioner No.2 has locus to file the present petitions.
9.5 As far as objection as to the maintainability of the petitions is concerned, upon a query being raised by this Court as to how petitions under Article 226 of the Constitution of India are Page 37 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 maintainable whereby the orders of the courts below are challenged by the petitioners, Mr.Shah, learned advocate for the petitioners submitted that the petitions are preferred under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure and powers under Section 482 of the Code being vide and if both Article 226 of the Constitution of India and Section 482 of the Code of the Criminal Procedure are read together, the petitions are maintainable. Further, considering the fact that these petitions are preferred in the year 2018 and reply to the petitions were preferred only in the year 2022 and also considering the fact that all throughout till today, the respondent No.2 never raised objection in respect of maintainability of the petitions on account of the fact that the petitions are not preferred under Article 227 of the Constitution of India, more particularly, when both the learned counsels are arguing the matters on merit as well as on preliminary objection as also considering vide powers of this Court in exercise of the powers under Section 482 of the Code, I am of the Page 38 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 view that the petitions are maintainable. Considering the overall facts, I deem it just and proper to decide the petitions on merits rather than deciding them on technical grounds of maintainability, etc. 9.6 On perusal of record, this Court has found that though in the year 1993 respondent No.2 preferred Regular Civil Suit No.512 of 1993 wherein initially order of status quo was granted in favour of respondent No.2 vide order dated 27.4.1993 and thereafter application Exh.5 was decided on 16.3.1999 by the learned IInd Joint Civil Judge (SD), Surat and while dismissing the application below Exh.5, learned Judge observed that "the plaintiffs have not produced any documentary evidence to show that they are tenants of the suit land". However, the learned Judge also took note of the fact that there was an order granting interim injunction in favour of respondent No.2 and restraining the defendant Nos.3 to 11 from disturbing the possession of defendant No.2. However, the learned Judge further observed that merely because the interim injunction was there Page 39 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 in favour of the respondent No.2 does not mean that the plaintiffs are actually in possession of the suit land, which would indicate that as such except for the aforesaid documentary evidence, there was no material before the learned Judge at that time to determine the aspect of possession of either party. The learned Judge disbelieved the respondent No.2 having in possession of the land in question as he could not produce any documentary evidence to indicate that they were the tenants of the suit land ignoring the fact that the question as regards the tenancy rights were to be determined by the revenue authorities prescribed under the law and not by the civil court.
9.7 Now, if this order is considered along with the subsequent order passed upon application below Exh.138 preferred by the petitioner raising objection about maintainability of the suit under Order 7 Rule 11(d) of the Code of Civil Procedure and order passed therein, the learned Civil Judge could disbelieve the temporary injunction order passed by the Mamlatdar & Page 40 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 ALT and remanded the matter to the Mamlatdar & ALT, Choryasi to determine the aspect as to whether the plaintiff is having the possession of the land in question in respect of his tenancy rights or not. This order itself indicates that, till this order was passed, the civil Court did not determine the issue with regard to who is having the possession of the land in question.
9.8 Now, in this backdrop the impugned orders are being examined by this Court. Right after the order dated 16.3.1999 for the first time, the dispute as regards to possession of the land in question cropped up only in April, 2011 when the respondent No.2 preferred application under Section 145 of the Code of Criminal Procedure on 30.4.2011. Section 145 of the Code reads as under:
"145. Procedure where dispute concerning land or water is likely to cause breach of peace-
[1] Whenever an Executive Magistrate is satisfied from a report of a Police Officer or upon other Page 41 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by Pleader, on a specified date and time, and to put in Written Statements of their respective claims as respects the fact of actual possession of the subject of dispute.
[2] For the purposes of this section, the expression land or water includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
[3] A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
[4] The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, Page 42 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub- section (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1).
[5] Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
[6] (a) If the Magistrate decides that one of the Page 43 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).
[7] When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
[8] If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural Page 44 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
[9] The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
[10] Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.
9.9 Section 145 deals with the procedure where dispute concerning land or water is likely to cause breach of peace. The application under Section 145 was preferred by respondent No.2 in the month of March - April, 2013 when instances took place which had led to some free fight between the security guards deployed by the parties, who claimed to be in possession of the land in question for which criminal complaints were filed. Therefore, the same was filed as there was likelihood that breach of peace was Page 45 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 likely to take place, and therefore, by exercising powers under Section 145(1) of the Code, learned Magistrate initially passed order dated 4.5.2011 restraining the petitioners not to disturb the possession of respondent No.2 and directed the Police Inspector, Umra to take necessary actions, if any one tries to illegally disturb possession of respondent No.2. Thereafter by exercising powers under Section 145(4) of the Code, learned Magistrate heard the parties and considered the evidence and as Section 145(4) empowers the learned Magistrate to determine the possession, he decided the application vide final order dated 24.6.2011 and while passing order dated 24.6.2011 by way of two separate orders, learned Magistrate elaborately discussed the evidence and took into consideration the fact that since respondent No.2 produced the statement of the tractor owner, who ploughed the land, the bills of sand and mettle, statement of the painter and other relevant material was produced in respect of Code of Criminal Procedure Section 145 Case No.17 of 2011 and also considered the fact that in respect of Case No.16 of Page 46 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 2011 there were police complaints as well as construction of a small room and a bore-well on the land in question, and bill for construction of bore- well as well construction of room were in favour of respondent No.2. Therefore, by taking into consideration all the aforesaid aspects as well as documentary evidence corroborated by oral evidence, learned Magistrate passed the impugned order dated 24.6.2011.
9.10 Such order which was based on findings of facts and backed with evidence was challenged by way of Criminal Revision Application Nos.235 and 236 of 2011 before the learned Sessions Court by the petitioners. During the course of hearing of the revision applications vide order dated 2.7.2011 the learned IInd (Adhoc) Additional Sessions Judge, Surat passed order of status in favour of petitioner and directed the parties to maintain status quo in respect of the land in question on the ground that the petitioner will have to given an undertaking that he will not breach the order of status quo till the Page 47 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 next date of hearing. As can be seen from the final order dated 30.8.2018 the aforesaid order of status quo was in operation till 2014.
9.11 While the order of status quo was in operation, in April, 2013, the present petitioner No.1 disrespecting the impugned order and his own undertaking, without seeking any permission or without bringing to the knowledge of the court sold away the land in question in favour of petitioner No.2. The aforesaid facts were not disclosed for quite long time by the petitioners. Ultimately, the aforesaid facts were brought to the notice of the Court by respondent No.2 herein by way of documentary evidence by producing a list before the revisional court which would clearly establish that after having obtained the order from the revisional court by way of tendering the undertaking that petitioner will not transfer or disturb the possession of the land in question, the petitioner No.1 without seeking any permission or without disclosing the fact that he intend to sell the land to petitioner No.2, sold away Page 48 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 the land in 2013 and did not disclose this fact till 2018 when the revision application was dismissed by the revisional court. That shows the intention of petitioner No.1 as well as petitioner No.2, who also did not prefer an application for being joined as party in the aforesaid revision application. 9.12 In the present petitions also there are no averments which can lead this Court to believe that the petitioner No.1 is absolutely unaware about the ongoing litigation before the revisional court, and therefore, he being unaware of the ongoing litigation, he did not prefer application for being joined as party.
9.13 In absence of any such averments in petition, this Court is left with no option but to believe the fact that petitioner No.1 sold away land to petitioner No.2 by way of two registered sale deeds and suppressed that fact before the revisional court for almost 5 years from 2013 till the revision application is decided in 2018. In light of the Page 49 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 aforesaid facts, now the judgments cited by learned Senior Advocate Mr.Marshall and learned advocate Mr.Kapadia are required to be considered. The Hon'ble Apex Court in the case of Oswal Fats and Oils Limited (supra) in paragraphs 15, 16 and 17 held as under:
"15. It is settled law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of the issues raised in the case. In other words, he owes a duty to the court to bring out all the facts and refrain from concealing/suppressing any material fact within his knowledge or which he could have known by exercising diligence expected of a person of ordinary prudence. If he is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the court not only has the right but a duty to deny relief to such person. In one of the earliest decisions on the subject i.e., R.V/ s. Kensington Income Tax Commissioner (1917) 1 KB 486, Viscount Reading, Chief Justice of the Divisional Court observed:Page 50 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022
R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 "Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the applicant was not candid and did not fairly state the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."Page 51 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022
R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022
16. The above extracted observations were ap- proved by the Court of Appeal in the following words:
"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction : and it is no excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. If an applicant does not act with uberrima fides and put every material fact before the Court it will not grant him an injunction, even though there might be facts upon which the injunction might be granted."
His Lordship rightly pronounced:
"The Court, for its own protection, is
entitled to say: We refuse this writ...
without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us."
Warrington, L.J. was also of the same
opinion. In a concurring judgment His
Lordship observed:
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R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022
"It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him."
17. This Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance - State of Haryana v. Karnal Dis- tillery Co. Ltd. (1977)2 SCC 431, Vijay Kumar Kathuria v. State of Haryana (1983)3 SCC 333, Welcome Hotel and others V/s. State of Andhra Pradesh and others etc. (1983)4 SCC 575, G.- Narayanaswamy Reddy (dead) by LRs. And another V/s. Government of Karnataka and another (1991)3 SCC 261, S.P.Chengalvaraya Naidu (dead) by LRs V/s. Jagannath (dead) by LRs. And others (1994)1 Page 53 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 SCC 1, Agricultural and Processed Food Products V/s. Oswal Agro Furane and others (1996)4 SCC297, Union of India and others V/s. Muneesh Suneja (2001)3 SCC 92, Prestige Lights Ltd. V/s. State Bank of India (2007)8 SCC 449, Sunil Pod- dar and others V/s. Union Bank of India (2008)2 SCC 326, K.D.Sharma V/s. Steel Authority of In- dia Ltd. And others (2008)12 SCC 481, G.Jayshree and others V/s. Bhagwandas S. Patel and others (2009)3 SCC 141 and C.A. No.5239/2002 - Dalip Singh V/s. State of U.P. and others, decided on 3.12.2009."
9.14 In view of the aforesaid categorical findings of the Hon'ble Apex Court as also considering the fact that similar view has been taken by this Court in the case of Pratamesh Pharms Pvt. Ltd. (supra), I am of the view that the ground of material suppression before the revisional court itself was justified to dismiss the revision application as well as these petitions, and therefore, the petitioners are not required to be heard any further on merits. However, considering the fact that the aforesaid facts were suppressed from the revisional court and the same is not suppressed Page 54 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 before this Court, I deem it proper to consider the matters on merit as well. However, in the entire memo of petitions only in sub-para of para 1 of the memo of petition, the petitioners have stated as under:
"The petitioner No.1 has sold and conveyed property in question to petitioner No.2 by registered sale deed dated 14.3.2013. The petitioner No.2 has, therefore, right, title and interest in the property in question, and therefore, the petitioner No.2 has also invoked the jurisdiction of this Hon'ble Court."
9.15 This Court could have straightaway rejected the petitions and imposed costs upon the petitioners for non-disclosure of this very important and vital fact. However, as stated in foregoing paragraph, just to ensure that ends of justice would be served, the matters were heard on merits as well.
9.16 On examination of the order passed by the learned Magistrate as well as learned revisional court, I found that the order passed by the Magistrate is based on facts and is backed by Page 55 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 documentary evidence. Learned Magistrate has come to the conclusion about the possession of respondent No.2 on the basis of material produced on record by respondent No.2 in respect of construction of room, compound wall, bore-well, bills for sand and mettle, etc., which the petitioners could not produce despite claiming to be in possession of the land in question since 1993.
9.17 The judgments on which Mr.Viral Shah, learned advocate for the petitioners placed reliance in the cases of Bhanumati Suryakant Doshi (supra), Siddeshwar Temple Trust Committee and Ashok Kumar (supra), in substance is that when civil suit is pending, the Magistrate should not take action under Section 145 of the Code of Criminal Procedure. Another submission of learned advocate Mr.Shah was that the petitioners are enjoying the order of status quo in writ petition being Special Civil Application No.2452 of 2019 wherein proceedings before the revenue authorities in respect of tenancy law are challenged and in that petition application for Page 56 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 vacating interim relief was preferred by respondent No.2 and the interim relief came to be vacated. I have considered the aforesaid submissions. As far as the tenancy right litigation is concerned, the same being altogether a different subject matter and considering the fact that what is under challenge by way of the petitions is order passed by the learned Magistrate under Section 145 of the Code of Criminal Procedure, which is confirmed by the revisional court as both the proceedings are altogether different nature, I do not see any reason as to how an order passed in writ petition for maintaining status quo to be maintained by both the sides would indicate that actual possession of the land in question was of the petitioners. None of the orders produced by learned advocate Mr.Shah would indicate that the petitioners are having possession of the land in question. 9.18 Now, in the above backdrop, judgments cited by learned Senior Advocate Mr.Marshall and learned counsel Mr.Kapadia appearing for respondent No.2, are required to be considered. In case of R.H.Bhutani Page 57 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 (supra), the Hon'ble Apex Court in paragraphs 8 and 9 held as under:
"8 The object of Section 145, no doubt, is to prevent breach of peace and for that end to pro- vide a speedy remedy by bringing the parties be- fore the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined a competent court. The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute, regarding an immoveable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order under sub-s. (1) and thereafter to make an enquiry under sub-s. (4) and pass a final order under sub-s. (6). It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under S. 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties. Under the second proviso, the party who is found to have been forcibly and wrongfully dispos- sessed within two months next preceding the date of the preliminary order may for the purpose of Page 58 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 the enquiry be deemed to have been in possession on the date of that order. The opposite party may of course prove that dispossession took place more than two months next preceding the date of that order and in that case the Magis- trate would have to cancel his preliminary or- der. On the other hand, if he is satisfied that dispossession was both forcible and wrongful and took place within the prescribed period, the party dispossessed would be deemed to be in ac- tual possession on the date of the preliminary order and the Magistrate would then proceed to make his final order directing the dispossessor to restore possession and prohibit him from in- terfering with that possession until the appli- cant is evicted in due course of law. This is broadly the scheme of 145.
9 The satisfaction under sub-s. (1) is of the Magistrate. The question whether on the materi- als before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, ,has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub- sec- tion is clear and unambiguous that he can arrive at his satisfaction both from the police report Page 59 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 or "from other information" which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate."
9.19 Similarly, in the case of Prakash Chand Sachdeva (supra) the Hon'ble Apex Court in paragraph 3 held that despite civil remedy or pendency of the suit when the dispute is not about right to possession but question of possession, the Magistrate is empowered to take cognizance under Section 145 of the Code of Criminal Procedure. Further, this Court in the case of Pratamesh Pharms Pvt. Ltd. (supra) has categorically held that the jurisdiction of the Magistrate under Section 145 of the Code is one of several evidences and hence considering the interim orders in civil litigation, the order of the learned Magistrate could not be assailed as illegal. 9.20 The aforesaid judgments relied on by learned Senior Advocate Mr.Marshall and learned Page 60 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 advocate Mr.Kapadia for respondent No.2 would clearly indicate that once in proceedings under Section 145 of the Code, the Magistrate has examined sufficient material and has formed an opinion about actual possession of the land in question, sufficiency of material cannot be examined by the High Court in revisional jurisdiction. However, I am conscious about the fact that these petitions are filed under Article 226 of the Constitution of India read with Section 482 of the Code, but considering the fact that the learned Magistrate has given convincing and cogent reasons while passing the impugned order based on documentary evidence, I am of the view that order dated 24.6.2011 passed in Court Case No.16 of 2011 under Section 145 of the Code of Criminal Procedure, 1973 by learned In-charge Additional Executive Magistrate, Surat City, which was confirmed by order dated 30.8.2018 passed in Criminal Revision Application No.235 of 2011 by the learned 13th Additional Sessions Judge, Surat cannot be termed to be illegal, more particularly, when this Court has considered the following aspects and discussed in Page 61 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 detail in the foregoing paragraphs:
[1] The petitioner No.1 while praying for interim relief in revision application had undertaken before the Sessions Court that he shall maintain status quo in respect of the disputed land and thereafter in breach of the aforesaid undertaking, sold away the land in favour of respondent No.2 and also gave possession of the land in question to petitioner No.2 and the aforesaid fact was suppressed by the revisional court i.e. the sessions court.
[2] Even the civil court did not decide the issue as regards, who is in possession of the suit land while disposing of application Exh.5 in Regular Civil Suit No.512 of 1993 vide order dated 16.3.1999. Therefore, when the petitioner preferred application below Exh.138 under Order 7 Rule 11, the learned Principal Senior Civil Judge (SD), Surat passed order dated 10.5.2013 directing the Mamlatdar and ALT, Choryasi to Page 62 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 determine as to whether the petitioner No.1 [defendant No.4] is in possession of the land in question by virtue of the tenancy rights or not, which would indicate that even the civil court also did not believe that the petitioner was in possession.
[3] The order dated 24.6.2011 passed in Court Case No.16 of 2011 under Section 145 of the Code of Criminal Procedure, 1973 by learned In-charge Additional Executive Magistrate, Surat City is well reasoned order, which was supported by evidence and no fault can be found with it. Hence, I do not deem it appropriate to interfere with both the impugned orders in these petitions. 10 In view of the above discussion, both these petitions fail and are hereby dismissed. Rule issued in both the petitions discharged. Interim relief, if any, granted earlier stands vacated forthwith. However, there shall be no order as to costs. Page 63 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022 R/SCR.A/8394/2018 CAV JUDGMENT DATED: 26/08/2022 Consequently, connected applications also stand disposed of.
11 Mr. Viral Shah, learned advocate for the petitioners, at this stage, request that the relief granted earlier, which is in operation right from the year 2018 may be extended for a period of six weeks. However, considering the fact that both the petitions are dismissed, the above request also rejected.
Sd/-
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 64 of 64 Downloaded on : Mon Aug 29 21:30:54 IST 2022