IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.11.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR CRL.O.P.Nos.8082, 9438 and 9439 of 2009 and M.P.No.2 of 2009 in Crl.O.P.No.9438 of 2009 and M.P.No.1 of 2009 in Crl.O.P.No.9439 of 2009 CRL.O.P.No.8082 of 2009 1.S.Dharmalingam 2.Mrs.Vimala Dharmalingam 3.Ms.Indu Dharmalingam ... Petitioners Vs. 1.State by The Inspector of Police J-5, Shastri Nagar Police Station Besant Nagar Chennai 600 090 Crime No.165 of 2009 2.Duraibabu ... Respondents
(Impleaded the respondents
3 to 5 as per order of this
Court dated 26.06.2009 in
M.P.No.1 of 2009)
PRAYER: This Criminal Original Petition has been filed under Section 482 of code of Criminal Procedure to direct the respondents herein not to harass the petitioners and not to compel the third petitioner to hand over possession of her property at A20, Yamuna Homes, Paramesharai, Adyar, Chennai 600 020 Nagar in connection with Cr.165/09 on the file of the respondent.
For Petitioners: Mr.T.J.Balaji
For RespondentS: Mr.Paul Nobel Devakumar
Government Advocate (Crl.Side)
for R1
Mr.R.Shanmugham for R2
CRL.O.P.No.9438 of 2009
1.Pritam Kumar
2.Wasi Ahmed
3.Raj Kamal … Petitioners
Vs.
1.Commissioner of Police
Egmore, Mardas-8
2.Inspector of Police
J.5, Sastri Nagar Police
Station, Madras-90
3.S.Dharmalingam
4.Mrs.Vimala Dharmalingam
5.Ms.Indu Dharmalingam … Respondents
(Impleaded the respondents
3 to 5 as per order of this
Court dated 26.06.2009 in
M.P.No.1 of 2009)
PRAYER: This Criminal Original Petition has been filed under Section 482 of code of Criminal Procedure issue direction to the respondents directing them to render necessary police protection to petitioners to protect the life and properties of the petitioners and to live peacefully without any fear at the hands of rowdy elements, in Flat No.A-20, Yamuna Homes, Parameswari Nagar, 4th St., Adyar, Madras-20 by taking action on the petitioner’s complaint dated 17.05.2009.
For Petitioners: Mr.R.Shanmugam
For RespondentS: Mr.Paul Nobel Devakumar
Government Advocate (Crl.Side)
for R1 and R2
Mr.T.J.Baalaji for R3 to R5
CRL.O.P.No.9439 of 2009
1.S.Duraibabu … Petitioner
Vs.
1.Commissioner of Police
Egmore, Mardas-8
2.Inspector of Police
J.5, Sastri Nagar Police
Station, Madras-90
3.S.Dharmalingam
4.Mrs.Vimala Dharmalingam
5.Ms.Indu Dharmalingam … Respondents
(Impleaded the respondents
3 to 5 as per order of this
Court dated 26.06.2009 in
M.P.No.1 of 2009)
PRAYER: This Criminal Original Petition has been filed under Section 482 of code of Criminal Procedure to direct the respondents to give necessary police protection to the petitioner and his wife to visit/inspect and stay in their own Flat A-20, Yamuna Homes, Parameswari Nagar, 4th Street, Adyar, Madras -20.
For Petitioners: Mr.R.Shanmugam
For Respondents: Mr.Paul Nobel Devakumar
Government Advocate (Crl.Side)
for R1 and R2
Mr.T.J.Baalaji for R3 to R5
M.P.No.2 of 2009 in Crl.O.P.No.9438 of 2009
M.Raja … Petitioner/Intervener
Vs.
1.Pritam Kumar
2.Wasi Ahmed
3.Raj Kamal
4.Dharmalingam
5.Mrs.Vimala Dharmalingam
6.Ms.Indu Dharmalingam … Respondents/Petitioners
7.Commissioner of Police
Egmore, Mardas-8
8.Inspector of Police
J.5, Sastri Nagar Police
Station, Madras-90 … Respondents/Respondents
M.P.No.1 of 2009 in Crl.O.P.No.9439 of 2009
M.Raja … Petitioner/Intervener
Vs.
1.S.Duraibabu … Respondent 1/Petitioner
2.Commissioner of Police
Egmore, Mardas-8
3.Inspector of Police
J.5, Sastri Nagar Police
Station, Madras-90
4.Dharmalingam
5.Mrs.Vimala Dharmalingam
6.Ms.Indu Dharmalingam … Respondents 2 to 6 /
Respondents 1 to 5
PRAYER: These Criminal miscellaneous Petition have been filed under Section 482 of code of Criminal Procedure to permit the petitioner/intervener to intervene in Crl.O.P.Nos.9438 and 9439/2009.
For Petitioner/ : Mr.Prabhakaran Intervener for Mr.K.Murugesan COMMON ORDER
Dharmalingam, his wife Vimala Dharmalingam and their daughter Indu Dharmalingam are the petitioners in Crl.O.P.No.8082 of 2009. They have filed the said petition under Section 482 Cr.P.C initially against the Inspector of Police, J.5, Sasthri Nagar Police Station, Chennai-90 contending that Indu Dharmalingam is in possession of Flat No.A-20, Yamuna Homes, Parameswari Nagar 4th Street, Adyar, Chennai-20 and she is in possession of the said flat and praying for a direction to the Inspector of Police not to harass the petitioners therein and not to compel Indu Dharmalingam to hand over possession of the said flat in connection with the criminal case registered on the file of Sastri Nagar Police Station as Cr.No.165/2009. The said petition was initially filed against the first respondent, namely the Inspector of Police, J.5 Sasthri Nagar Police Station alone. Subsequently, as per order dated 26.06.2009 made in M.P.No.1/2009 in Crl.O.P.No.8082/2009, Duraibabu, the petitioner in Crl.O.P.No.9439/2009 was impleaded as the second respondent.
2. Crl.O.P.No.9438 of 2009 is the one filed under Section 482 Cr.P.C by Pritam Kumar, Wasi Ahmed and Raj Kamal, the petitioners therein, praying for a direction to the Commissioner of Police, Chennai and Inspector of Police, J.5, Sasthri Nagar Police Station, Chennai to render necessary police protection to them to live peacefully without any fear at the hands of rowdy elements in Flat No.A.20, Yamuna Homes, Parameswari Nagar 4th Street, Adyar, Chennai-600 020. Initially the petition was filed against the Commissioner of Police and Inspector of Police arrayed as respondents 1 and 2 alone. Subsequently, as per order dated 26.06.2009 made in M.P.No.1 of 2009, Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam were impleaded as respondents 3 to 5.
3. Crl.O.P.No.9439 of 2009 is the one filed under Section 482 Cr.P.C by S.Duraibabu, the petitioenr therein, against the very same set of respondents arraying them as 1 to 5 praying for the transfer of investigation of the case registered as Cr.No.165/2009 on the file of J.5, Sasthri Nagar Police Station on 04.04.2009 to the file of CBCID, Chennai for expeditious investigation and for a direction to give necessary police protection to the petitioner therein and his wife to visit, inspect and stay in Flat No.A-20, Yamuna Homes, Parameswari Nagar 4th Street, Adyar, Chennai-600 020.
4. Since all the three criminal original petitions have been filed by three sets of persons praying for directions in respect of one and the same property, all the three petitions were heard jointly and are being disposed of by a common order.
5. Duraibabu, the petitioner in Crl.O.P.No.9439/3009 claims to have purchased the disputed property, namely Flat No.A-20, Yamuna Homes, Parameswari Nagar, 4th Street, Adyar, Chennai-20 in the name of his wife K.T.V.Padmavathy from one C.Venkatachalam under a registered sale deed dated 11.09.2008 registered on the file of the Sub Registrar, Adyar, Chennai as document NO.1591/2008. It is his further contention that after the said purchase, he had let out the said flat to one Vinayachandran who was in occupation of the said flat as a tenant till 02.04.2009 and that thereafter, he inducted Pritam Kumar, Wasi Ahmed and Raj Kamal, the petitioners in Crl.O.P.No.9438/2009 as tenants after entering into a lease agreement for a monthly rent of Rs.12,500/-. It is his further contention that on 04.04.2009 when the above said tenants had left the flat to bring their house-hold articles from K.K.Nagar, strangers broke open the lock put up by the tenants and trespassed into the flat and the same was found when they returned with the house-hold articles. According to his further contention, when the matter came to his knowledge, he (the petitioner in Crl.O.P.No.9439/2009) lodged a complaint with the Inspector of Police, J.5, Sastri Nagar Police Station on 04.04.2009 itself based on which a case was registered in Cr.No.165/2009 of the said police station for offences punishable under Sections 448, 341 and 323 IPC against Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam, the respondents 3 to 5 in Crl.O.P.Nos.9438/2009 and 9439/2009 / petitioners in Crl.O.P.No.8082/2009.
6. Contending that the respondents 3 to 5 in the said criminal OPs show scant respect for law and that they are having rowdy elements at their disposal and hence the petitioner therein is not able to go and inspect the flat, he has prayed for a direction to the first respondent to give him and his wife necessary police protection to visit, inspect and stay in the above said flat. According to him, the accused persons in Cr.No.165/2009 registered on the file of J.5, Sastri Nagar Police Station were familiar in the said police station and hence there is possibility of interference by the accused persons in the said case in the matter of investigation. Therefore, he has prayed for the transfer of the investigation of the said case from the file of the Inspector of Police, J.5 Sastri Nagar Police Station to CCB, Egmore, Chennai under the control of the Commissioner of Police (first respondent in Crl.O.P.No.9439/2009).
7. The alleged tenants of Duraibabu, namely Pritam Kumar, Wasi Ahmed and Raj Kamal, have filed Crl.O.P.No.9438/2009 making similar allegations and praying for a direction to the Commissioner of Police, Egmore, Chennai and Inspector of Police, Sastri Nagar Police Station to give them necessary police protection to live peacefully in Flat No.A-20, Yamuna Homes, Parameswari Nagar 4th Street, Adyar, Chennai-20.
8. Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam, the petitioners in Crl.O.P.No.8082/2009 have contended in the said petition that the residential complex known as ‘Yamuna Homes’ consisting of 50 flats was promoted by M/s.IISC Engineers Private Limited of which Dharmalingam was the Managing Director; that the wife of Dharmalingam, the second petitioner in Crl.O.P.No.8082/2009 held an undivided share in the land over which the residential complex was put up; that the planning permission from MMDA was obtained for promoting the residential complex consisting of ground + three floors; that the said promoting company constructed ground + two floors consisting of 36 flats reserving the right to construct 14 flats in the third floor and four pent houses in the fourth floor; that Indu Dharmalingam, the third petitioner in Crl.O.P.No.8082/2009 had purchased 8/500 undivided share by a sale deed dated 30.04.1991 registered as document No.744/1992 at the office of the Sub-Registrar, Adyar; that she was entitled to a double bed room flat in the third floor whenever the construction would be made; that thereafter Dharmalingam entered into a construction agreement with Indu Dharmalingam on 05.03.2002 for constructing Flat No.A-20 for her and that on 01.06.2002 after construction of the said flat, the same was handed over to the third petitioner in O.P.No.8082/2009, namely Indu Dharmalingam. It is their further contention that one Senkathir, who had got a Power of Attorney to deal with 9/500 share only as a security for the repayment of a mortgage debt raised by mortgaging some of the properties of Palaniappan, the father of the said Senkathir, who is also the brother of Dharmalingam (first petitioner), clandestinely executed a sale deed in favour of Venkatachalam; that the said Venkatachalam, who was staying along with Senkathir in Flat No.A-19 illegally occupied Flat No.A-20; that thereafter he vacated the flat during April 2008 and inducted another person in possession of the said property; that only on 25.03.2009 after much persuasion, the keys of the Flat No.A-20 were handed over to Indu Dharmalingam (the third petitioner in Crl.O.P.No.8082/2009) and that the said flat is in her possession from 01.04.2009.
9. Contending further that Duraibabu and his henchmen started breaking open the grill gate of Flat A-20; that when they were questioned by the petitioners in Crl.O.P.No.8082/2009 they were beaten up; that pursuant to the said occurrence, separate complaints were lodged against each other by Duraibabu and the petitioners in Crl.O.P.No.8082/200 based on which criminal cases were registered; that pursuant to the registration of the criminal case based on the complaint of Duraibabu, the petitioners in Crl.O.P.Nos.8082/2009 are being harassed by the police to hand over possession of the flat A-20 of Yamuna homes to Duraibabu and his men; that the police do not have such a power to do so and that hence the police should be restrained by a direction not to harass the petitioners in Crl.O.P.No.8082/2009 and not to compel Indu Dharmalingam, the third petitioner in the said criminal OP, to hand over possession of the above said flat to Duraibabu or anybody else.
10. Duraibabu, who figures as the petitioner in Crl.O.P.No.9439/2009 and second respondent in Crl.O.P.No.8082/2009 has filed a counter affidavit denying the averments made in the affidavit filed in support of Crl.O.P.No.8082/2009 and repeating the allegations he has made in his affidavit filed in support of Crl.O.P.No.9439/2009. Similarly, Dharmalingam has filed a common counter affidavit in Crl.O.P.Nos.9438 and 9439/2009 on his own behalf and on behalf of Vimala Dharmalingam and Indu Dharmalingam, denying the allegations made in Crl.O.P.Nos.9438 and 9439/2009 and re-stating the averments found in the affidavit filed in support of Crl.O.P.No.8082/2009.
11. During the pendency of these criminal OPs, one Mr.M.Raja, an advocate has filed M.P.No.2 of 2009 in Crl.O.P.No.9438/2009 and M.P.No.1/2009 in Crl.O.P.No.9439/2009 seeking orders permitting him to intervene in those petitions. He claims to be a person inducted as tenant under Indu Dharmalingam in respect of the above said flat under a rental agreement dated 01.04.2009.
12. The submissions made by Mr.T.J.Balaji, learned counsel for the petitioners in Crl.O.P.No.8082/2009 (respondents 3 to 5 in Crl.O.P.Nos.9438 and 9439/2009), by Mr.R.Shanmugham, learned counsel for the petitioners in Crl.O.P.Nos.9438 and 9439/2009 and respondent No.2 in Crl.O.P.No.8082/2009, by Mr.Prabhakaran, learned counsel for the petitioners in the petitions seeking permission to intervene in Crl.O.P.Nos.9438 and 9439/2009 and by Mr.I.Paul Nobel learned Government Advocate (Crl.Side) representing the police in all these petitions were heard. The materials available on record were also perused.
13. Duraibabu, who figures as the petitioner in Crl.O.P.No.9439/2009 and the second respondent in Crl.O.P.No.8082/2009 claims to be the owner of the flat A-20, Yamuna Homes, Parameswari Nagar 4th Street, Adyar, Chennai-20 as having purchased the same from one Venkatachalam in the name of his wife K.T.V.Padmavathy under a sale deed dated 11.09.2008 registered as document No.1591/2008 on the file of Sub Registrar, Adyar. The vendor therein, namely Venkatachalam is said to have got that property by virtue of a sale deed dated 24.04.2002 executed by Selvanathan, as agent holding Power of Attorney for Vimala Dharmalingam. It is not in dispute that Vimala Dharmalingam, who was holding an undivided share in the land over which the residential complex ‘Yamuna Homes’ was constructed had executed a registered Power of Attorney in favour of the said Selvanathan, son of Mokkaiya Gounder. A copy of the said registered power of attorney dated 11.03.1996 has been produced in the typed set of papers. It is obvious from the said document that the said deed was executed as an irrevocable power of attorney for the purpose of executing a sale deed pursuant to an agreement with one Senkathir, son of Palaniappan. The said agreement for sale was dated 25.11.2000, a copy of which has also been included in the typed set of papers. Pursuant to the said agreement of sale, according to Duraibabu and the persons claiming under him, the above said Venkatachalam got the flat constructed for him for which Dharmalingam as promoter did have no objection and obtained possession of the flat after completion on constructions.
14. On the other hand, Dharmalingam, his wife and his daughter have contended that the said power of attorney in favour of Selvanathan had been executed at the instance of Senkathir only as a security, because some of his properties had been mortgaged for raising funds for Dharmalingam and the said Power of Attorney had been misused for executing a sale deed in favour of Venkatachalam. It is their further contention that the company of which Dharmalingam was the Managing Director was the promoter/builder of the residential complex; that neither Senkathir nor Venkatachalam entered into any construction agreement with Dharmalingam and that hence the construction of flat A-20 could not have been made by Venkatachalam. On the other hand, it is their contention that they had entrusted the construction work to one Joseph Isaac and after the construction was over, the flat was handed over to Indu Dharmalingam.
15. Both Venkatachalam and Indu Dharmalingam had got possession certificates obtained from the respective builders engaged by them to construct one and the same flat, namely A-20 in the third floor of Yamuna Homes. Under such circumstances, civil suits came to be filed and the parties are litigating on the civil side of this court and other civil courts regarding the title to the flat A-20 of Yamuna Homes. One such suit was filed in this court as C.S.No.319/2002. The said suit was filed by Indu Dharmalingam and her father Dharmalingam representing M/s.IISC Engineers Private Limited against Senkathir, Selvanathan and Venkatachalam. In the said suit, an application was filed by them as O.A.No.317/2002 seeking an interim injunction restraining Senkathir, Selvanathan and Vankatachalam from interfering with the alleged possession and enjoyment of the property, namely the flat bearing door No.A-20, Yamuna Homes, Parameswari Nagar 4th Street, Adyar, Chennai-20. Venkatachalam had filed A.No.2724/2002 for vacating the order of interim injunction granted in O.A.No.317/2002. Both the applications came to be disposed of by an order dated 04.09.2002 whereby A.No.2724/2002 was allowed vacating the interim injunction granted in O.A.No.317/2002 and O.A.No.317/2002 came to be dismissed.
16. The plaintiffs in the suit preferred an appeal in OSA No.236/2003 before the Division Bench of this court. In the said appeal, two miscellaneous petitions were filed as CMP Nos.2554 and 2555/2004 for a direction to Venkatachalam to restore possession of the suit flat to Indu Dharmalingam or in the alternative for appointment of an Advocate-Receiver to take over the suit flat and for an interim injunction restraining Venkatachalam from dealing with the suit flat. The said petitions came to be dismissed for non-prosecution on 15.03.2005. An Advocate-Commissioner was appointed in the above said civil suit C.S.No.319/202 filed by Indu Dharmalingam and Dharmalingam and the Advocate-Commissioner submitted a report. Based on the report and considering all other aspects, a learned single judge of this court, by order dated 04.09.2002, held that the property was in possession of Venkatachalam and dismissed O.A.No.317/2002 directing Indu Dharmalingam and IISC Engineers Private Limited represented by its Managing Director Dharmalingam to pay a sum of Rs.5,000/- to Venkatachalam as cost and to reimburse a sum of Rs.3,000/- paid by Venkatachalam as Commissioner’s remuneration. In the said order, the court has also referred to the application submitted to MMDA for regularisation of the construction signed by all the members of the Flat Owners’ Association of Yamuna Homes, wherein Indu Dharmalingam’s name was not found and on the other hand Venkatachalam’s name was found among the applicants. It seems after the said order of the High Court, the problem between the parties did not surface till 04.04.2009 on which date complaints were given by Dharmalingam and Duraibabu against each other based on which cases were registered on the file of J.5 Sastri Nagar Police Station. Cr.No.165/2009 was registered against Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam for offences punishable under Sections 448, 341 and 323 IPC and Cr.No.166/2009 was registered against Duraibabu and Muthu Manikandan, son of Duraibabu for offences punishable under Sections 341 and 323 IPC.
17. This court, in its order dated 04.09.2002 found the said Venkatachalam to be in possession of the Flat A-20 in Yamuna Homes. The said order of the learned single Judge has also been confirmed by the Division Bench. Apart from the said judicial pronouncement finding the vendor of K.T.V.Padmavathy, wife of Duraibabu to be in possession of the property, the petitioners in Crl.O.P.No.8082/2009 have also admitted the fact that they were out of possession till the month of April 2009. It is not the case of any one of them that despite this court’s refusal to grant injunction in favour of Dharmalingam and Indu Dharmalingam, the property nevertheless continued to be in possession of Indu Dharmalingam. On the other hand, they have unequivocally admitted in the affidavit filed in support of Crl.O.P.No.8082/2009 that Venkatachalam was in possession of the flat A-20 till April 2008, when he vacated the flat and put another person in possession of the property. The same shall be an admission of the case of Duraibabu that the said property was leased out to one Vinayachandran with effect from 01.05.2008 for a period of 11 months under a rental agreement dated 30.04.2008. There are prima-facie materials to show that initially Venkatachalam was in possession; that he issued a sale receipt for a sum of Rs.20,00,000/- paid by way of three cheques on 16.04.2008 and handed over possession of the flat to K.T.V.Padmavathy, wife of Duraibabu; that on the same day he also executed a power of attorney in favour of Duraibabu; that Duraibabu leased out the said flat to Vinayachandran with effect from 01.05.2008 for a period of 11 months under rental agreement dated 30.04.2008 based on the deed of power of attorney executed by Venkatachalam and that in the meanwhile on 11.09.2008, Venkatachalam executed a sale deed in favour of K.T.V.Padmavathy in accordance with the sale receipt dated 16.04.2008. It is the contention of Duraibabu and the petitioners in Crl.O.P.No.9438/2009 (Pritam Kumar, Wasi Ahmed and Raj Kamal) that Vinayachandran vacated the premises on the expiry of the lease period and thereafter the same was leased out to the petitioners in Crl.O.P.No.9438/2009 with effect from 01.04.2009 under a rental agreement dated 23.03.2009.
18. It is the further case of the petitioner in Crl.O.P.No.9438 and 9439/2009 that the tenants (petitioners in 9438/2009) occupied the said flat on 02.04.2009 and on 04.04.2009 they locked the flat and left for K.K.Nagar to collect their house-hold articles; that on their return at 7.30 p.m they found the lock put up by them had been removed and some rowdy elements were found inside the flat and that the rowdy elements threatened them with deadly weapons to prevent them from entering into the flat. It is their further case that information was passed on to Duraibabu and his wife, whereupon Duraibabu lodged a complaint based on which Cr.No.165/2009 was registered against Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam for offences punishable under Sections 448, 341 and 323 IPC.
19. On the other hand, it is the contention of Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam, the petitioners in Crl.O.P.No.8082/2009, that Indu Dharmalingam took possession of the flat on 01.04.2009 and thereafter she continued to be in possession of the same; that Duraibabu came there with his henchmen on 04.04.2009 at 10.30 a.m and started opening the grill gate of flat A-20; that when questioned they assaulted the petitioners in Crl.O.P.No.8082/2009 whereupon Dharmalingam gave a complaint based on which Cr.No.166/2009 was registered against Duraibabu and another for offences punishable under Sections 341 and 323 IPC and that Duraibabu also gave a similar complaint against the petitioners in Crl.O.P.Nos.8082/2009 based on which a case was registered in Cr.No.165/2009 for offences punishable under Sections 448, 341 and 323 IPC. Admittedly, regarding the alleged occurrence that took place on 04.04.2009 complaints were given by the parties against each other, based on which the above said criminal case were registered on the file of J.5, Sastri Nagar Police Station.
20. There is a clear admission in the affidavit filed in support of Crl.O.P.No.8082/2009 that Indu Dharmalingam, the third petitioner therein, was out of possession and Venkatachalam was occupying the flat till 2008 and thereafter he put another person in possession. On the other hand, it is the contention of the petitioners in Crl.O.P.No.8082/2009 that Indu Dharmalingam took possession of the flat only on 01.04.2009. The contention of the petitioners in Crl.O.P.Nos.9438 and 9439/2009 that initially Venkatachalam was in possession and thereafter the property was let out to Vinayachandran from 01.05.2008 and the said Vinayachandran was in possession as tenant till the end of March 2009 stands admitted by the petitioners in Crl.O.P.No.8082/2009.
21. It is the case of the petitioners in Crl.O.P.Nos.9438 and 9439/2009 that after Venkatachalam vacated, the petitioners in Crl.O.P.No.9438/2009, took it on lease and occupied the said premises on 02.04.2009. Whether the said contention of the petitioners in Crl.O.P.Nos.9438 and 9439/2009 could be true? – has to be considered. According to the affidavit filed in support of Crl.O.P.No.9438/2009, the petitioners therein left the flat after locking it in the evening of 04.04.2009 to collect and bring their house-hold articles and on their return at 7.30 p.m, they found the lock put up by them at the entrance gate of the said flat was removed and some rowdy elements were present inside the flat. It is the further averment found in the said affidavit that immediately there after Duraibabu and his wife Padmavathy were informed of the said fact whereupon Duraibabu gave a necessary complaint to the police. Copies of the complaints lodged by Duraibabu and Dharmalingam against each other have been included in the typed set of papers. A perusal of the said documents would show that the complaints were given at 12.30 Hrs and 13.30 Hrs respectively. Therefore, it is quite obvious that the case of the petitioners in Crl.O.P.Nos.9438/2009 that they were in the flat till the evening hours of 04.04.2009 and they left the flat thereafter after locking the main gate; that at about 7.30 p.m they came and found the flat to have been occupied by rowdy elements and that there after, Duraibabu gave a complaint to the police – seems to be unsustainable. The complaint given by Duraibabu based on which Cr.No.165/2009 was registered itself was lodged at 12.30 Hrs on 04.04.2009 and the rival complaint of Dharmalingam was lodged at 13.30 Hrs on 04.04.2009. Therefore, the alleged occurrence at 7.30 p.m cannot be believed. The necessary inference from the same shall be that the alleged tenants, namely the petitioners in Crl.O.P.No.9438/2009, could not have taken possession as claimed by them. It is the contention of the petitioners in Crl.O.P.No.9438/2009 and 9439/2009 that the flat was occupied by rowdy elements set up by Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam during the evening hours of 04.04.2009. We have already seen that the said contention could not be true in the light of the fact that the complaints had been lodged at 12.30 p.m and 1.30 p.m on 04.04.2009.
22. In addition to that, it has been stated in the complaint given by Duraibabu based on which Cr.No.165/2009 was registered that the flat had been rented out by them in April 2008 and the tenant vacated the same on 02.04.2009; that they arranged for new tenants, who brought their house-hold articles at 7.00 p.m to occupy the flat; that the flat was cleaned for their occupation, the doors were locked and the keys were held by the tenants; that at 8.00 a.m Duraibabu received a call from the new tenants informing that they could not enter the flat as the lock put up by them had been broken and there were some other occupants inside the flat. There is no clear cut averment to the effect that the said occurrence took place on 04.04.2009. The averments made in the complaint is to the effect that the tenants came to the flat on 02.04.2009, cleaned it for occupation and locked it at 7.00 a.m on 02.04.2009 and at 8.00 a.m on 02.04.2009 itself Duraibabu was informed by the tenants that the lock was removed and some other persons were found inside the flat. The said discrepancy in the recital assumes importance in the light of the averment found in the affidavit filed in support of Crl.O.P.No.9438/2009 wherein it has been stated that the tenants left the house in the evening of 04.04.2009 and returned at 7.30 p.m on 04.04.2009 to find removal of the lock put up by them and the occupation of the flat by some rowdy elements. In the affidavit of Duraibau filed in support of his Crl.O.P.No.9439/2009, there is no clear-cut averment regarding the time when the property was occupied by rowdy elements. Time of such occurrence has also not been clearly given. There was only a bald statement that on 04.04.2009 when the tenants came back with the house-hold articles collected from K.K.Nagar, they found strangers inside the flat who had entered the same after removing the lock put up by them. It should also be noted that the complaint was given against Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam and not against the persons who were found inside the flat either furnishing their names or without furnishing their names. Therefore, this court is of the view that the above said contention of the petitioners in Crl.O.P.Nos.9438/2009 is not free from doubt. On the other hand, it is probable that Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam would have waited for the opportunity and occupied the flat when the previous tenant, namely Vinayachandran vacated the premises on expiry of the lease period. It also transpires that they had collected their henchmen to prevent any attempt on the part of Duraibabu or his wife to regain possession of the said flat. It is obvious that Duraibabu could have set up the petitioners in Crl.O.P.No.9438/2009 to project them to be the tenants who were in occupation of the flat till 04.04.2009 and were dispossessed on 04.04.2009.
23. Under such circumstances, the petitioners in Crl.O.P.No.9438/2009 have come forward with a prayer for a direction to the police to render them necessary police protection to live peacefully in the above said flat No.A20, Yamuna Homes as if they are still in possession. Admittedly, they are out of possession at least from 04.04.2009. Therefore, there is no question of giving police protection to them to protect their alleged possession of the said flat. They have not chosen to seek restoration of possession on the ground that they had been forcibly dispossessed. They have indirectly sought for the help of the police for restoration of their possession and camouflaged the prayer as if they want police protection to live peacefully in that flat. The very ingenious way in which the prayer has been couched will be enough to hold that they are not entitled to the relief sought for in the petition. They have to approach the civil court for recovery of possession either based on title or based on the previous possession and their forcible dispossession. The other alternative for them is to approach the Executive Magistrate under Section 145 of Cr.P.C for necessary orders. As the petitioners have not chosen to seek such reliefs under appropriate provision of law and have chosen to indirectly seek the relief of restoration of possession by filing the present petition, they have to be non-suited for the relief sought for and the petition in Crl.O.P.No.9438/2009 deserves to be dismissed.
24. Duraibabu, the petitioner in Crl.O.P.No.9439/2009, besides seeking similar relief of police protection as claimed by the petitioners in Crl.O.P.No.9439/2009, has also prayed for the transfer of the investigation of the case registered in Cr.No.165/2009 on the file of J.5, Sastri Nagar Police Station against Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam based on his complaint dated 04.04.2009. The prayer for police protection was made on the ground that Duraibabu, as the husband of the owner of the flat A-20, had every right to enter the premises to inspect it and to know what is going on there. All the observations made in support of the conclusion that the prayer for police protection sought for by the petitioners in Crl.O.P.No.9439/2009 could not be granted, also apply to the prayer for police protection made in Crl.O.P.No.9439/2009. The petitioner in Crl.O.P.No.9439/2009 can also seek similar remedies as pointed out in the discussion relating to the prayer of the petitioners in Crl.O.P.No.9438/2009. Therefore, this court comes to the conclusion that the prayer for police protection made in Crl.O.P.No.9439/2009 also deserves rejection.
25. So far as the other prayer made in Crl.O.P.No.9439/2009, namely the prayer for transfer of investigation of Cr.No.165/2009 registered on the file of J.5, Sastri Nagar Police Station is concerned, though the petitioner has brought-forth several materials to show that Dharmalingam and his family members adopt ingenious methods in respect of many flats in Yamuna Homes and that several complaints have been made against them, unless inefficiency or bias is alleged on the part of the present Investigating Officer, the mere apprehension expressed that the accused persons may interfere in the investigation, shall not be enough to order transfer of the investigation to a specialised agency like Central Crime Branch, Egmore, Chennai. Apart from the said fact, the investigation of the said case was already completed, a positive final report was filed by the Inspector of Police and the same was taken on file by the learned IX Metropolitan Magistrate, Saidapet, Chennai as C.C.No.10029/2009. The case was instituted on the final report of the Inspector of Police for alleged offences punishable under Sections 448, 341, 323 and 506(ii) IPC r/w Section 34 of IPC. Summons have also been issued to the persons accused therein, namely Dharmalingam, Vimala Dharmalingam and Indu Dharmalingam. Copies of the same are availbale in the typed set filed by them. Therefore, the question of transferring the investigation which has already been concluded and a positive final report was filed, to the Central Crime Branch, Egmore, Chennai, will not arise. Hence, this court comes to the conclusion that the prayer made in Crl.O.P.No.9439/2009 for the transfer of investigation in Cr.No.165/2009 registered on the file of J.5, Sastri Nagar Police Station is bound to be rejected.
26. Dharmalingam, vimala Dharmalingam and Indu Dharmalingam have filed Crl.O.P.No.8082/2009 praying for a direction against the Inspector of Police, J.5, Sastri Nagar Police Station, not to harass them and not to compel the third petitioner to hand over possession of flat A-20, Yamuna Homes. As already pointed out, it has been admitted that none of the petitioners therein were in possession of the said flat till 01.04.2009. Even as per the averment found in affidavit filed in support of the petition, Indu Dharmalingam got possession of the property only on 01.04.2009. From whom she got possession? who delivered possession? – has not been clearly stated. It is not the case of the petitioners therein that possession of the flat was voluntarily handed over to her either by Venkatachalam or by Duraibabu or by his wife or anybody else, who was admitted to be in possession prior to 01.04.2009. Therefore, it is quite obvious that she would have waited for Vinayachandran to vacate premises on the expiry of lease and soon after he vacated, the petitioners in Crl.O.P.No.8082/2009 should have sneaked in and occupied the flat despite the order of the High Court in the civil case pending. It also transpires that there after Durai Babu, on 04.04.2009 tried to regain possession which was resisted by the petitioners in Crl.O.P.No.8082/2009 with the help of rowdy elements based on which complaints were given by Duraibabu against the petitioners in Crl.O.P.No.8082/2009 and by Dharmalingam against Duraibabu and his son leading to the registration of the cases in Cr.No.165/2009 against the petitioners in Crl.O.P.No.8082/2009 and Cr.No.166/2009 against Duraibabu and his son. It is quite clear that the petitioners in Crl.O.P.No.8082/2009 have high-handedly taken possession of the flat by force and in order to protect their possession unlawfully gained, they have chosen to file the present petition seeking a negative direction against the police not to harass them and not to coerce Indu Dharmalingam to hand over possession of the flat. They have approached this court with such a prayer knowing fully well that they cannot get an order of injunction to protect their possession, if they approach the civil court. The petitioners in Crl.O.P.No.8082/209 have not come to the court with clean hands. The very petition itself can be stated to be an abuse of process of court. The relief sought for being a discretionary one, the petitioners in Crl.O.P.Nos.8082/2009 should be non-suited for the said relief.
27. For all the reasons stated above, this court comes to the conclusion that the petitioners in Crl.O.P.No.8082/2009 are not entitled to any one of the relief sought for in the said petition and the said petition deserves to be dismissed.
28. One M.Raja has filed M.P.No.2/2009 in Crl.O.P.No.9438/2009 seeking the leave of the court to intervene in the said criminal original petition claiming that he has entered into a rental agreement with Indu Dharmalingam on 01.04.2009 in respect of the flat bearing door No.A-20 in the third floor of Yamuna Homes, the property concerned in all these criminal original petitions. A similar petition was also filed by him in M.P.No.1/2009 in Crl.O.P.No.9439/2009 seeking permission of the court to intervene in the said criminal OP also. It is his contention that after having entered into a rental agreement on 01.04.2009 with him and handed over possession of the flat to him on 01.04.2009 itself, Indu Dharmalingam started giving troubles to him, whereupon he approached the police with a complaint and then the Civil Court by way of a suit in O.S.No.2626/2009 seeking permanent injunction and obtained an order of injunction in I.A.No.4979/2009 on 06.07.2009.
29. It should be noticed that the same was an ex-parte order obtained against Indu Dharmalingam, who was the sole respondent therein pursuant to her failure to appear after service of notice in the said application. It will be obvious that the said order was obtained behind the back of Duraibabu and his wife and as a result of collusion between the petitioner in the above said miscellaneous petitions and Indu Dharmalingam.
30. The petitioner in both the miscellaneous petitions is a practising advocate. It seems the petitioners in Crl.O.P.Nos.8082/2009 have set up the petitioner in the miscellaneous petitions to resist any claim that may be made by the wife of Duraibabu for recovery of possession on the ground that there was forcible dispossession. Considering the entire facts and circumstances of the case, this court comes to the conclusion that the present miscellaneous petitions have been filed only at the instigation of the petitioners in Crl.O.P.No.8082/2009 for the purpose of vexation and protracting the proceedings. No relief has been sought for in the criminal original petition Nos.9438 and 9439 of 2009 against the petitioner in the miscellaneous petitions. Even in the complaint of Dharmalingam dated 04.04.2009 leading to the registration of Cr.No.165/2009, nothing has been mentioned about the lease in favour of the petitioner in the miscellaneous petitions. On the other hand in the said complaint, Dharmalingam has made a bald allegation that his daughter has given the flat on lease to some advocate professionals. As pointed out supra, the petitioners in Crl.O.P.No.8082/2009 have set up the petitioner in the miscellaneous petitions to protect their possession high-handedly obtained using unlawful means. The prayer for intervention has not been made bonafide and hence both the miscellaneous petitions are deserve to be dismissed. Accordingly M.P.No.2/2009 in Crl.O.P.No.9438/2009 and M.P.No.1/2009 in Crl.O.P.No.9439/2009 are dismissed.
31. In the result all the petitions (Crl.O.P.Nos.8082, 9438 and 9439 of 2009) are dismissed. Miscellaneous Petitions M.P.No.2 of 2009 in Crl.O.P.No.9438 of 2009 and M.P.No.1 of 2009 in Crl.O.P.No.9439 of 2009 are also dismissed.
asr
To
1. The Commissioner of Police
Egmore, Mardas-8
2.State by
The Inspector of Police
J-5, Shastri Nagar Police Station
Besant Nagar
Chennai 600 090
3. The Public Prosecutor
High Court
Madras 600 104