Allahabad High Court
Rajbir Singh vs Purushottam Lal And Others on 11 July, 1995
Equivalent citations: AIR1996ALL170, AIR 1996 ALLAHABAD 170, 1996 ALL. L. J. 498, 1995 (2) ALL RENTCAS 162, (1995) 2 IJR 736 (ALL), 1995 (2) ALL LR 388, 1995 (2) IJR 736
Author: B.S. Chauhan
Bench: B.S. Chauhan
ORDER
1. The petitioner has filed the instant writ petition alleging that he had been the tenant in the premises in dispute for a long time and the landlord respondent No. 1 in collusion with respondent No. 3 the Police Inspector wanted to evict the petitioner forcibly from the said premises and in that apprehension the petitioner filed the case before the Munsif, Meerut praying that he should not be dispossessed from the premises in dispute without due process of law and in the meanwhile temporary injunction may be granted restraining respondents Nos. 1 and 3 from evicting the petitioner forcibly. But the petitioner had been evicted forcibly by the said respondents.
2. In the aforesaid writ petition this Court vide its order dated 30-5-95 directed the District Magistrate, Meerut respondent No. 5, to take appropriate action for restoring the possession of the petitioner within a week of producing the certified copy of the said order before him by the petitioner. The aforesaid order was passed on the submission on behalf of the petitioner that in spite of the order of the Civil Court dated 9-5-1995 (Annexure-3 to the writ petition) the petitioner a tenant, had been dispossessed by the landlord-respondent No. 1, in collusion with the respondent No. 3, the Police Inspector. The aforesaid order was passed also bearing in mind settled principle of law laid down by the Privy Council in the case of Midnapur Zamindary Company Ltd. v. Naresh Narain Rao, AIR 1924 PC 144, wherein the following observations have been made :--
"In India persons are not permitted to take possession; they must obtain such possession as they are entitled to through a Court."
3. The aforesaid judgment of the Privy Council has been followed by the Supreme Court in the case of Ram Ratan v. State of U.P., (1977) 2 SCR 234, holding that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner, if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedy under the law. Similarly in the case of Krishna Ram Mahle v. Shobha Venkat Rao, AIR 1989 SC 2097, Supreme Court has observed as under:--
"It is well settled law in this country that where a person is in settled possession of properly even in the assumption that he has no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law,"
4. After passing of the order dated 30-5-1995 the respondent No. 1 filed the application before this Court for modifying the aforesaid order dated 30-5-95 on the ground that the order dated 9-5-95 (Annexure-3 to the writ petition) had been tampered with and in fact the competent Civil Court had never granted the said temporary injunction in favour of the petitioner. In spite of the notice to the petitioner's counsel, the said counsel did not appear when the matter was re-heard on 9-6-1995 and the aforesaid order was modified directing the District Magistrate, respondent No. 5, to ascertain the real facts and then to restore the possession to the petitioner only if the competent civil court had passed the temporary injunction in favour of the petitioner as mentioned in Annexure-3 to the writ petition and in case the said order was false, tampered with then to launch the criminal prosecution and proceed in accordance with law against the petitioner. The District Magistrate was directed to ascertain the real fads as he had already been assigned the duty to restore the possession to the petitioner and none of the petitioners had filed the certified copy of the said order dated 9-5-1995. It has been mentioned in the application filed today by the petitioner that there was no such order in favour of the petitioner and it was merely the typographical error. In pursuance of the order of this Court dated 9-6-95 the criminal case has already been instituted against the petitioner on 3-7-95.
5. It is settled law that when a person approaches the Court of equity in exercise of its extra-ordinary jurisdiction under Art. 226 of the Constitution of India, he should approach the Court not only with clean objectives. There is no need to site any authority for this but the reference may be made to the cases of the Ramjas Foundation v. Union of India, AIR 1993 SC 852 : (1992 AIR SCW 3460), G. Narainaswami Reddy v. Govt, of Karnataka, AIR 1991 SC 1726:1991 AIR SCW 1755) and R. R. Srinivas v. R. M. Premchand, (1994) 6 SCC 620. In the instant case it is pointed out in the counter-affidavit that the application for restoration of possession had been filed by the petitioner (Annexure-6 to the counter-affidavit) before the trial Court and It was pending when the order dated 30-5-95 was passed by this Court. The contention of the respondent No. 1 is that the petitioner is guilty of suppressing the material fact and hence not entitled for any equitable relief before this Court. In the case of Andhra Pradesh State Financial Corporation v. Gar Re-Rolling Mills, (1994) 2 SCC 647 : (AIR 1994 SC 2151 : 1994 AIR SCW 1953), the Supreme Court has observed as under:--
"A Court of equity, when exercising its equitable jurisdiction under Art. 226 of the Constitution of India, must so Act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and subtleties invented to evade law."
6. Similarly the Supreme Court in the case of State of Maharashtra v. Prabhu, (1994) 2 SCC 481, has observed as under :--
"It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for the sake of justice and refusing to interfere where it is against the social interest and public good."
7. In the instant case though in the pleadings of the writ petition it has not specifically been mentioned that the competent Court had granted the temporary injunction in his favour but the order dated 9-5-1993 (Annexure-3 to the writ petition) specifically provides for the same and it was. on this submission that the order dated 30-5-1995 had been passed. The petitioner today filed an application for quashing the F.I.R. dated 3-7-1995 (Annexed to the application) and staying the arrest of the petitioner in pursuance of the said F.I.R. In the said application it has been averred that there has been some typographical error in the Annexure-3 to the writ petition as "Vishah Vahak" has been typed an "Nishedhagya" and it was not at all intentional.
8. Learned counsel for the respondent No. 1 vehemently opposed the said application and submitted that the F.I.R. may be quashed only if no kind of offence is disclosed by it. After perusal of the said F.I.R. it cannot be said that it does not disclose any offence. So far as the question of typographical error is concerned, it is in the nature of defence and can be examined by the investigating agency during the investigation or by the trial Court during the trial, if any. There is a force in the contention of the learned counsel for the respondent as it is in consonance with the law laid down in the case of Emperor v. Khawaja Nazir Ahmad, AIR 1945 PC 18; Janta Dal v. H. S. Chaudhary, AIR 1993 SC 892 (1993 Cri LJ 600 : 1993 AIR SCW 248) and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 (AIR 1992 SC 604 : 1992 Cri LJ 527: 1992 AIR SCW 237). But I am unable to enter into this controversy at all, as being single Judge, I lack the jurisdiction to entertain an application for quashing the FIR or staying the arrest of the petitioner as for the same the jurisdiction lies with the Division Bench of this Court.
9. The Petitioner has filed application in the pending writ, which cannot be transferred to the Division Bench. Thus, the petitioner is at liberty to raise the plea of typographical error before the investigating agency or resort to any other legal proceeding available to him under the law. It is clarified that any order passed by this Court or any observation made therein shall not adversely affect the case of the petitioner during the investigation or at a later stage.
10. Now taking in view the entire facts and circumstances of the case, the writ petition is dismissed with costs and the application No. 31034 of 1995 filed on 10-7-1995 for quashing the FIR dated 3-7-1995 and staying the arrest in pursuance of the said FIR is rejected for want of jurisdiction.
11. Petition dismissed.