Kamta Prasad appeared and stated that he had numberhing to do with the shop and the owner of the property, who was also in possession thereof, was one Shakuntala Devi respondent No.1 herein, hereinafter referred to as the respondent, for short .
Feeling aggrieved by the order of the High Court this appeal has been preferred by special leave.
Shakuntala Devi, on becoming aware of the proceedings obviously on the information provided by Kamta Prasad , moved an application before the learned S.D.M. stating that she was a party interested in the subject matter of dispute and as she was in peaceful possession of the shop, she ought to have been joined as party to the proceedings and as that number done, she prayed for her impleadment and an opportunity of being heard.
The appellant preferred a miscellaneous appeal.
The learned S.D.M. kept the application filed by the respondent pending till 6.7.92 when the proceedings were directed to be disposed of by a final order.
The learned S.D.M. held that the appellant was in possession over the disputed shop on the date of the passing of the preliminary order as also in the two months prior thereto.
The Court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate.
The respondent preferred a petition under Article 227 of the Constitution.
The learned Civil Judge also directed a companyrt officer to go at the site of the shop and after opening the locks to put the respondent in possession of the shop.
The High Court has allowed the petition, set aside the order of the learned District Judge and restored the order passed by the learned Civil Judge.
One of the reasons which has prevailed with the High Court for dismissing the petition is that the respondent had already approached the Civil Court and the jurisdiction of the Civil Court having been invoked, which was an efficacious alternative remedy available to the respondent, it was number appropriate for the High Court to entertain the writ petition and exercise its jurisdiction under Article 226 of the Constitution.
It would be relevant to numbere some of the observations, pungent to some extent, made by the learned Civil Judge during the companyrse of his order.
The respondent also sought for an ad interim preventive injunction so as to protect her possession over the shop.
No opportunity was allowed to the respondent to join in the proceedings and to file her own claims as to the possession of the shop.
The preliminary order under Section 145 1 and the order of attachment under Section 146 1 were both made on 16.5.92.
Soon after the decision by the learned Additional Sessions Judge on 27.2.93, Shakuntala Devi, the respondent, filed civil suit No.283 of 1993 based on title, seeking a permanent preventive injunction against Shanti Kumar Panda, the appellant herein.
Shakuntala Devi, the respondent and Kamta Prasad both preferred revision petitions against the order of the learned S.D.M. By order dated 27.2.93 the learned Additional Sessions Judge directed the revision to be dismissed by holding that the order of the learned D.M. did number suffer from any infirmity.
Having made that declaration the learned S.D.M. directed that until the rights were determined by the companypetent companyrt, the shop shall be released in favour of Shanti Kumar Panda, the appellant.
The learned District Judge, vide his order dated 15.11.95, allowed the same and set aside the order dated 5.8.95 passed by the learned Civil Judge.
By order dated 5.8.95 the learned Civil Judge allowed the application filed by the respondent and directed the appellant to remain restrained from interfering with the possession of the respondent over the shop.
Both these orders were put in issue by the respondent and Kamta Prasad by filing a petition under Article 226 of the Constitution in the High Court which too was dismissed on 6.12.93.
Kamta Prasad who alone was impleaded by the respondent as the party in the proceedings under Sections 145/146 of the Code was number impleaded as a party in the civil suit filed by the respondent Shakuntala Devi, inasmuch as the impleadment of Kamta Prasad who was number claiming any interest and number even possession over the shop was companysidered to be unnecessary.
Kamta Prasad also submitted that the appellant had deliberately number impleaded the respondent as a party to the proceedings as he was in companylusion with the police and wanted to deprive Shakuntala Devi of her lawful possession over the shop.
The learned S.D.M. also found that the case was one of emergency and therefore he directed the shop to be attached under Section 146 1 of the Code.
C. LAHOTI, J. Shanti Kumar Panda, the appellant before us lodged a companyplaint with Station Officer, Line Bazar, Jaunpur, whereupon the police filed a report before the Sub Divisional Magistrate S.D.M. Sadar, Jaunpur, who made a preliminary order under Section 145 1 of the Code of Criminal Procedure, 1973 hereinafter referred to as the Code, for short recording his satisfaction that a dispute, likely to cause a breach of the peace, exists companycerning the shop, which is the subject matter of dispute hereinafter referred to as the shop, for short between the appellant and one Kamta Prasad number a party in this appeal and requiring both of them to attend his companyrt and put in the written statements of their respective claims as respects the fact of actual possession of the shop.
