JUDGMENT
K.J. Sengupta, J.
1. These two matters can be disposed of by one judgment.
2. It appears from the records that Brajakishore Roy filed the aforesaid writ petition being CO No. 13545(W) of 1993, alleging non-compliance of the order passed by the learned Executive Magistrate, Sealdah, by Narkeldanga Police Station. Learned Executive Magistrate Sealdah passed an order directing police official to hand over possession of Flat No. 1 in the ground floor of premises No. 142, Raja Dinendra Street, Calcutta (hereinafter referred to as the said flat) to the writ petitioner Brajakishore. So, by an order dated 13 February, 1998, Hon’ble Justice Pinaki Chandra Ghose disposed of this writ petition directing the police authority amongst other to hand over the key to the writ petitioner. Incidentally, it is to be noted that Netaidas Roy is not a party to the writ petition of Brajakishore. As the police did not carry out the order of Hon’ble Justice Ghose. contempt proceedings was initiated by Brajakishore, and whereupon an order was passed on 12 May, 1999 by Hon’ble Justice Ghose, allowing Brajakishore to take possession of the flat in question and the officer-in-charge of that police station was directed to render all assistance to the petitioner. Pursuant to this order Brajakishore got possession of the said flat.
3. Immediately, thereafter Netaidas filed a separate writ petition being No. 22489(W) of 1999, alleging wrongful and illegal dispossession by the officials of Narkeldanga Police Station without having known or notice of filing of the writ petition by Brajakishore or of passing of order by this Court on the writ petition of Brajokishore or on contempt petition. In the writ petition of Netaidas. Brajakishore was, however, made party. Justice Lala by an ad interim order dated 1st July, 1999, allowed Netaidas to take possession of the said flat. As this order was not allowed to be carried out a contempt proceedings followed; whereupon an order was passed on 7th July 1999, appointing Special Officer with a direction to take possession of the flat in question. Naturally Brajakishore preferred appeal against the orders of Justice Lala and the Appeal Court set aside the orders of Justice Lala with the observation that Netaidas should approach the learned trial Judge in the writ petition filed by Brojakishore. Hence, Netaidas applied for adding himself as a party to the writ petition of Brojakishore (being CAN No. 8681 of 1999) and also filed an application for review of order of Justice Ghose passed initially on 13 February 1998 on the writ petition of Brajakishore. It appears from the records that Justice Ghose by an order dated 6 April 2000 recalled his earlier orders dated 13 February 1998 passed in the writ petition and dated 12 May 1999 in the contempt proceedings. Admitted position is that Brajakishore has still been in possession of the said flat pursuant to the order passed by the Appeal Court on 26 July 1999. By virtue of assignment all these matters are to be heard by me pursuant to direction of the Appellate Court.
4. Mr. Biswarup Gupta, learned senior advocate, appearing with Dr. Tapas Banerjee, learned senior advocate and Mr. Jayanta Banerjee, learned advocate on behalf of Netaidas contends that there was and still is Civil Court’s order of status quo passed in a civil suit filed by his client long time back and by virtue of this order dated 19 February, 1979, passed in the Title Suit No. 3429 of 1978, Netaidas and Jugal Kishore had hitherto been in possession until they were dispossessed on the strength of the order passed by this Court in the writ petition contempt proceedings. He contends that Brajakishore obtained order from the learned Executive Magistrate ex-parte against police official without making his client as a party, and suppressing all material facts. Similarly, in his writ petition, the order was also obtained ex-parte and behind the back of his client and suppressing the fact of status quo order passed by the Civil Court in the possession of his client and knowing well his client would be affected by order. He submits that Brajakishore has practised fraud upon the Court suppressing the aforesaid fact. He has taken me through various records, viz. the reports of the Special Officer, as well as, the police officer prepared and filed in various proceedings which include proceedings in the Court, that establishes the fact that Brajakishore was never in possession. His contention is that dispossession of Netaidas and Jugal Kishore was actually done without due recourse to law. So, possession of the said flat should be restored to them, as Brajakishore has been in possession, pursuant to order of Appeal Court.
5. Mr. Dutta, the learned senior advocate, appearing on behalf of Brajakishore, contends on the other hand that his client Brajakishore had been in possession on the strength of the Civil Court’s order of status quo dated 19 February 1979, passed in the said Title Suit. But the police authority while investigating into theft case and in the name of maintaining peace pursuant to orders of the learned Magistrate in M.P. Case No. 1350 of 1983, dated 29 July 1983 and 10 August 1983, took possession of the said flat. So, he approached the learned Executive Magistrate by filing application under Section 144 of Cr. PC and obtained suitable order for restoration of possession. Direction was given by the learned Magistrate upon the police authority by two orders dated 30 September 1992 and 21 July being M.P. Case No. 2262 of 1992. The Officer-in-charge, Narkeldanga Police Station did not carry out the aforesaid orders by handing over possession. He submits that there is no suppression of any fact nor there is any fraud practised at any point of time before this Court or any other Court. He argues that Netaidas was and still is not necessary party in the writ petition as his client’s grievance was and still is against the officials of the Narkeldanga Police Station who had wrongfully put padlock and took possession and ousted him. He had shown me the orders of the learned Civil Judge passed in the said Title Suit No. 3429 of 1978 wherein initial ex-parte prohibitory order of injunction was modified directing to maintain status quo and this order of status quo has been affirmed by this Court in revisional jurisdiction. So, according to his client, possession of Brajakishore on strength of order of status quo has to be protected, and it was sought to be done through due process of law approaching the learned Executive Magistrate. He has drawn my attention to the documents showing possession of Brajakishore.
6. Having heard respective contentions of the learned advocate it appears to me that the bone of contention in this matter is, whether the writ petition filed by Brajakishore should be entertained or relief as prayed for be granted or not. Brajakishore has asked in his writ petition for taking appropriate steps against the respondent No. 2, the then Officer-in-charge of Narkeldanga Police Station for his illegal acts and omission by withholding the key of the said flat and also a direction upon him to hand over the key of the flat in question. In order to get aforesaid relief the petitioner has relied on two orders said to have been passed by the learned Executive Magistrate Sealdah in case being M.P. No. 2262 of 1992 on 30 September, 1992 and 21 January, 1993. In substance, the petitioner has really asked for implementation of the aforesaid two orders which were passed on an application under Section 144 of the Cr. PC. Therefore, it is apposite to set out and quote the text thereof.
Order dated 30 September 1992 :
” I, OC Ultodanga Police Station is directed to enquire locally and report on 7 December 1992 and to see that no breach of the peace takes place In the mean time.
II. Issue notice upon the opposite parties requiring them to appear in person before this Court on 7 December, 1992 for filing show-cause against this application.
III. OC is directed to see that the opposite party along with his society may not enter in the said flat for residential purpose and also for using electric line illegally and forcibly.
IV. OC is directed to render police picket at the costs of the FP, if necessary requisite to do.
Order dated 21 January 1993 :
“FP is present with learned lawyer, S. R. Not in OCPS is directed to comply with the order passed on 30 September, 1992 strictly as no steps taken from the end of OCPSPR are not in. Issue tagid for PR. DC ESD is directed to look into the matter for complying with the orders strictly by the OCPS to 15/3/1993 for PR last chance and SC hearing.”
7. Upon careful scrutiny of alleged certified copy of the said orders it appears to me, it is doubtful whether the aforesaid two orders were passed or whether the aforesaid two orders have correctly been copied as the annexures D & E of the writ petition did not appear to be the xerox copy of certified copies of the orders. There is no endorsement of certification and/ or comparisons of the order by appropriate person, no signature of the custodian of the records appears. Even copy of the application under Section 144 has not been annexed to the petition.
8. In course of hearing I asked the petitioner to supply copy of the application under Section 144, said to have been filed in MP Case No. 2262 of 1992 for Court’s perusal but it was not done so. Therefore, I do not know whether Netaidas or Jugal Kishore was made party to the said proceedings or not. However, it is submitted by the learned lawyer of Brajakishore that grievance of his client was not against Netaidas or Jugal Kishore but against police officer personally who having control of the said flat illegally allowed third person to enter and use the same, and as a preventive measure the aforesaid application was made without making Netaidas as party thereto. Sequelly Netaidas or Jugal Kishore was not made party in the present writ petition. I am of the view that Netaidas and Jugal Kishore have sufficient interest in subject matter of the writ petition, as the subject matter herein is also that of the Civil Suit, wherein. Netaidas and Jugal Kishore are the plaintiffs in the said suit and order of status quo has been passed thereon.
9. The aforesaid order of status quo of the Civil Court at the time of filing of MP Case No. 2262 of 1992 and the writ petition, was and even today is subsisting and valid. In all fairness Netaidas should have been made a party in the above proceedings so also in the writ petition as any order touching the said flat will directly affect interest of Netaidas and Brajakishore. So. I allow the application for addition of party made by Netaidas and add him as a party in the writ petition of Brajakishore.
10. Admittedly Brajakishore had obtained possession, pursuant to orders dated 13 February 1998 and 12 May 1999 and this possession of Brajakishore has been allowed to continue by the Appeal Court after he was dispossessed by the order of Justice Lala until further order is passed in main writ petition. Logically, it therefore, follows that even at the time of filing of MP Case No. 2262 of 1992 and passing of two orders dated 13 February 1998 and order dated 15 May 1999 Brajakishore was not in possession. The order of Hon’ble Justice Ghose dated 6 April 2000 was passed subsequent to the order of the Appeal Court dated 26 July 1999. Whereby amongst other status quo ante was restored, so Brajakishore should have restored possession of flat to the person from whom he got, but it was not done.
11. Therefore, I quote order of Hon’ble Justice Ghose, dated 6 April 2000 :
“The order which passed by me on February 13, 1998 is recalled and furthermore, the order passed by this Court on 12 May 1999 in CPAN No. 1818 of 1999 in connection with CO No. 1345(W) of 1993 is also recalled. It appears from the records of the application filed by the application that at no point of time possession was lying with the writ petitioner. Accordingly there will be an order of status quo ante on February 13. 1998 in respect of the room in question. The main writ petition which has been filed being CO No. 1345(W) of 1993 in which affidavits have already been exchanged between the parties, shall be taken up for hearing for this Court on 20 April, 2000. The application for recalling being CAN No. 8681/1999 is thus disposed.”
12. Brajakishore preferred an appeal against the aforesaid order dated 6 April 2000, however, unsuccessfully, as the aforesaid order was not set aside by the Appeal Court while disposing of appeal by order dated 8th June 2000 in Appeal being MA No. 1208 of 2000. The Appeal Court, it appears therefrom, merely observes that the application or addition of party should be disposed of by the learned trial Judge.
13. Therefore, position is that order passed by Hon’ble Justice Ghose initially giving possession to Brajakishore and also direction upon the police officer to hand over the flat in question, were recalled and now question is left to be considered whether the writ petitioner, Brajakishore is entitled to get possession of the said flat on the strength of the case made out in the present writ petition and the material annexed thereto or not.
14. Basically the writ petition is founded on the said two order of the learned Executive Magistrate. The aforesaid two orders of the learned Executive Magistrate do not make any whisper for giving possession to the petitioner of the said flat. It is incorrectly alleged against the police officials by the writ petitioner, Brajakishore, that the Officer-in-charge had been retaining the key of the said flat. This allegation in my view has been concocted to file this writ to get possession of the said flat, circumventing order of status quo.
15. It appears from the submission and statements made by the learned lawyer on behalf of the police officials in the contempt proceedings initiated by Brajakishore on 12 May, 1999 that the key of the flat in question as observed in the order dated 13 February, 1998 was not lying with the Officer-in-charge of the Narkeldanga Police Station and it appears further that such statement and submission were accepted by Hon’ble Justice Ghose while dealing with contempt application and it was observed in order dated 15 May 1999 by His Lordship that since the key in question was not lying with Officer-in-charge, Ultodanga Police Station question of handing over possession of the flat to the petitioner by the police officials does not arise. It was further observed and recorded by His Lordship that since the key in question was not found with the Officer-in-charge, Ultadanga Police Station, the petitioner will be at liberty to take possession of the premises in question and the Officer-in-charge will render help to the petitioner in the matter.
16. No document has been annexed to the writ petition to show that the police at any point of time took possession of the said flat from the petitioner. While making investigation into the alleged case of theft, as a matter of course under the law investigating officer prepares seizure list for taking possession of any property or material and a copy of such seizure list is always handed over to the person from whom the possession of the thing or material is taken.
17. Therefore, I am of the view when the police never took possession of the said flat in question the petitioner Brajakishore cannot get possession of the said flat by filing writ proceedings bypassing order of status quo of the Civil Court. Brajakishore of course wanted to convince me pointing out to electricity bills and address mentioned in the list of members of Bar Association that he had been in possession. I am of the view mere mention of address in the list of members of Bar Association do not establish possession. As far as the electricity bill is concerned the original thereof is lying with Netaldas and the same was produced in Court from his custody. I find the bill records the name of Brajakishore, though the same is being paid by Netaidas and Jugal Kishore. It is not very uncommon that, in one house for more than one electric supply lines various persons are recorded as consumer.
18. Furthermore question of implementation of the order of the learned Executive Magistrate passed on 30 September 1992 and 21 January 1993 in MP 2262 of 1992 does not and cannot arise at this stage, as the orders passed in under Section 144 of Cr. PC do not subsist after expiry of two months from the date of passing of the aforesaid orders. Therefore, the writ petition of Brajakishore is bound to fail and same is hereby dismissed. Order of Hon’ble Justice Ghose dated 6 April 2000 is hereby confirmed.
19. The only question remains, whether Netaidas or Jugal Kishore will get possession of the said flat or not. As I have already observed the police authority had never taken possession of the said flat on the one hand, and on the other hand there is a finding of Hon’ble Justice Ghose on 6 April 2000, that Brajakishore was not in possession at any point of time before 13 February 1998. Therefore, irresistible conclusion will be that they (Netaidas and Jugal Kishore) were in possession. This will be apparent as rightly argued by Mr. Gupta, from the various documents, namely miniutes of the joint Special Officer appointed, pursuant to the order of this Court on the previous writ petition being Civil Order No. 7506(W) of 1983 Jugal Kishore Roy had the key of the flat and he produced before them. It was found by them Brajakishore was not in possession. This apart the police official in his report dated 1 September 1983 recorded that Brajakishore was not in physical possession of the flat. On the contrary he observed that both Jugal Kishore and Netaidas were controlling the flat. The above report was filed in connection with MP Case No. 1350 of 1983. At least on the date of initiation of the proceedings under Section 144 of Cr. PC filed before the learned Executive Magistrate in the year 1992 Brajakishore was not in possession. The order of status quo passed by the Civil Court at all material times had and still has been in force. Therefore, this order of status quo has to be maintained by all persons until and unless it is set aside by competent Civil Court. The writ Court cannot upset or disturb the order of the Civil Court, unfortunately that is what, exactly, was sought to be done by the writ petitioner, Brajakishore. I have no doubt in my mind, Brajakishore wanted to get possession of the property in question through the proceedings under Cr. PC making false case against the police officials for having taken possession and control of the said fiat in question. Brajakishore ought not to have approached the learned Executive Magistrate bypassing the Civil Court even in assumed case of his dispossession, as the order of status quo is enforceable as against all person and it does not merely confine to the parties to the lis. Brajakishore in all fairness should have approached Civil Court, which on the strength of previous order of status quo with all its power could have set the matter right.
20. Therefore, I direct Brajakishore to hand over the flat in question within a period of one month from date to Netaidas and Jugal Kishore Roy. Accordingly, I appoint Mr. Arindam Dutta, of Bar Association and practising advocate of this Court, as Special Officer who will take symbolic possession of the flat in question and in the event Brajakishore does not hand over the flat in question within the time as above to the above persons the Special Officer shall take physical possession of the same breaking of the padlock if any put, with the help of the Officer-in-charge of the local Police Station and hand over possession to Netaidas Roy and Jugal Kishore Roy. Brajakishore shall pay costs of all these proceedings to Netaidas and Jugal Kishore assessed at 100 gms. to be paid to Netaidas. The Special Officer shall be paid remuneration initially of 250 gms. by Netaidas and Jugalkishore.
21. Stay of operation of the judgment and order is prayed for by the writ petitioner Brajakishore Roy. Having considered the facts and circumstances of this case and further I have granted one month’s time to vacate, I do not think any stay is necessary in this matter.
Let xerox certified copy of this judgment and order be given to the learned lawyers for the parties on urgent basis, if applied for.