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1997 Supreme(AP) 150
Andhra Pradesh High Court
Judges : K.S.SHRIVASTAVA
ARWAPALLY SRINIVASA RAO - Appellant
Versus
ARWAPALLY VENKATESHWAR RAO - Respondent
Decided On : 02-25-97
Headnote:
Criminal procedure Code,1973 - Section 145 - Civil Procedure Code,1908 - Section 145 - Order 40 - Cement factory - Counter claim - Revision are that on report of Sub- inspector Police also on report of Mandal Revenue Officer mattampally Sub-Divisional Magistrate- cum-Revenue Divisional Officer miryalaguda passed impugned order and appointed Mandal Revenue Officer custodian subject of dispute disposal of case and further directed to take possession of subject of dispute that Vasudeva Cements Limited his order Sub- divisional Magistrate has reproduced report of Mandal Revenue Officer revisionist also Respondent had tried to capture factory by opening its gates and there had been clash between them and workers factory supported by local people and that there was likelihood breach of peace and then in Para his order has observed that was satisfied with opinion of the sub-Inspector of Police and of Mandal revenue Officer and then in next para he has passed impugned order –Held, Case of supra father who was possession of house had left with his wife see their ailing daughter and had returned within four days - But in meantime son had removed their belongings and had locked that house - He also filed suit for permanent injunction and had obtained status quo order these circumstances - Apex Court that lower Court had ordered status quo but status quo what - It further that question to be decided was whether father-appellant had been forcibly or wrongfully dispossessed within two months next before the date on which information was received by magistrate and under these circumstances apex Court ordered that father-appellant should be placed in possession of the subject of dispute and order of dropping the proceedings Section Code of Criminal Procedure was set aside - Such is not the case here - Temporary injunction in favour of first respondent has been passed in specific terms relating to management of affairs of the factory in question and therefore case supra is of no help to petitioner - In case order of temporary injunction is vacated petitioner would at liberty file counter claim and try for temporary injunction or for appointment receiver Order Code of Civil procedure and therefore merely on apprehension that what would happen if the order of temporary injunction is vacated impugned order passed by Sub-Divisional magistrate which is otherwise illegal cannot be maintained - Petition dismissed
( 1 ) THIS revision is directed against the judgment passed by the i Additional Sessions Judge, Nalgonda, in crl. R. P. No. 59/96,dated 21-11-1996, whereby the order of the Sub-Divisional Magistrate, miryalaguda, passed in proceedings No. A2/ 3235/96, dated 21-8-1996 has been set aside.
( 2 ) THE facts giving rise to this revision, in brief, are that on the report of the Sub- inspector of Police, Mattampally as also on the report of the Mandal Revenue Officer, mattampally, the Sub-Divisional Magistrate- cum-Revenue Divisional Officer, miryalaguda, passed the impugned order and appointed the Mandal Revenue Officer as the custodian of the subject of dispute till the disposal of the case and further directed it to take possession of the subject of dispute that is Vasudeva Cements Limited.
( 3 ) IN Para 3 of his order, the Sub- divisional Magistrate has reproduced the report of the Mandal Revenue Officer that, on 6-8-1996 the revisionist as also the 1 st Respondent had tried to capture the factory by opening its gates and there had been a clash between them and the workers of the factory supported by the local people and that there was likelihood of breach of peace and then in Para 5 of his order has observed that he was satisfied with the opinion of the sub-Inspector of Police and of the Mandal revenue Officer and then in the next para he has passed the impugned order.
( 4 ) IN revision, the I Additional Sessions judge, Nalgonda, in Para 12 of his order has observed that, without passing a preliminary order and asking the parties to file their written statements in support of their rival claims has passed an ex pane order of attachment of the property in a casual, mechanical and routine manner and, therefore, it is liable to be set aside, particularly in the light of the fact that the Subordinate Judge, Miryalaguda, has passed an exparte temporary injunction order against the Petitioner, and A. Shinivasa Rao, who is the 1st Respondent here, inia. No. 341/ 96 in O. S. No. 48/96, dated 12-8-1996 and has extended the same on 4-9-1996 till further orders.
( 5 ) THIS order has been challenged in revision before this Court.
( 6 ) RELYING on the case of Prakash chand Sachdeva v. The State and Anr. (1) air 1994 SC 1436, it is urged on behalf of the petitioner that, merely on the ground that a civil suit is pending before the Civil Court, proceedings under Section 145 of the Code of Criminal Procedure should not be dropped. The Sub-Divisional Magistrate had satisfied himself that there was likelihood of breach of peace and, therefore, he had passed the order for attachment of the subject of dispute. It is further urged on behalf of the petitioner that, the Civil Court had passed an ad interim injunction order and an application for vacating the same is pending before it. If that injunction order is vacated and in the meantime the proceedings before the Sub- divisional Magistrate are dropped, then, there would be every likelihood of breach of peace and, therefore, the order passed by the i Additional Sessions Judge should be reversed.
( 7 ) ON the other hand, it is contended on behalf of the 1st Respondent that, without passing a preliminary order, the Sub- divisional Magistrate has got no jurisdiction to pass the order of attachment under section 146 of the Code of Criminal procedure. In the case of Prakash Chand sachdeva (supra), the dispute was between the father and the son in relation to the ancestral property in which both had got equal share whereas in the case on hand, the dispute is not actually regarding the share in the immovable property, but regarding the management of the affairs of the cement factory and whosoever would be the managing Director would have a right to run the factory. Because the petitioner has ceased to be the Managing Director of the Cement factory, he has no right to enter and run the cement factory in question and, therefore, when the Civil Court has passed the adinterim injunction, whi
