{"id":188714,"date":"2010-10-27T00:00:00","date_gmt":"2010-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vyomesh-vs-sangeetaben-on-27-october-2010"},"modified":"2015-12-22T20:57:40","modified_gmt":"2015-12-22T15:27:40","slug":"vyomesh-vs-sangeetaben-on-27-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vyomesh-vs-sangeetaben-on-27-october-2010","title":{"rendered":"Vyomesh vs Sangeetaben on 27 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Vyomesh vs Sangeetaben on 27 October, 2010<\/div>\n
Author: S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.RA\/626\/2008\t 17\/ 17\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nREVISION APPLICATION No. 626 of 2008\n \n\nWith\n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 14516 of 2008\n \n\nIn\n\n\n \n\nCRIMINAL\nREVISION APPLICATION No. 626 of 2008\n \n\n \n\n\n \n\n \n\n\n \n\n===============================================\n\n\n \n\nVYOMESH\nSURENDRALAL DESAI - Applicant\n \n\nVersus\n \n\nSANGEETABEN\nSURENDRAKUMAR TIWARI & 3 - Respondents\n \n\n==============================================\n \nAppearance : \nfor\nApplicant: Bomi H. Sethna (T.S. Nanavati) \nFor Respondents: 1-2\nParty-in-Person\n \n\nFor\nRespondent No.3- Notice served  \nPUBLIC PROSECUTOR for Respondent :\n4, \n=============================================== \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/10\/2010 \n\n \n\n \n \nCAV\nORDER \n<\/pre>\n
The
\n\tpetitioner\/original respondent no.3 in Revision Application No. 31
\n\tof 2008 filed in the Court of Learned Addl. Sessions Judge, Bharuch,
\n\thas approached this Court under the provisions of Section 397, read
\n\twith section 401 of Criminal Procedure Code 1973, challenging the
\n\tjudgment & order dated 17\/6\/2008 passed by Addl. Sessions Judge,
\n\tFast Track, Court No.6, Bharuch in the aforesaid Criminal Revision
\n\tApplication No. 31 of 2008 where under the Additional Sessions
\n\tJudge, Fast Track, has reversed the judgment & order passed by
\n\tMamlatdar and Executive Magistrate in exercise of the power
\n\tconferred upon under section 145 of Criminal Procedure Code in Case
\n\tNo.3 of 2007 dated 11\/3\/2008.\n<\/p>\n
Facts
\n\tin brief leading to filing of this revision application deserves to
\n\tbe set out as under.\n<\/p>\n
\tThe
\npetitioner owned premises being Flat no. 107, Vinay Complex, Old
\nNational High Court No. 8, Near Dudhdhara Dairy, Bharuch, which he
\npermitted to be used by respondent no.2 on Leave & License basis
\nby executing an agreement dated 18\/5\/2006 w.e.f. 1\/6\/2006 on monthly
\nlicense fee of Rs.6,000\/- and Rs.12,000\/- was fixed to be advance
\ndeposit. The said premises has a super built up area of approximately
\n1100 sq. ft. with an attached terrace of 1500 sq. ft.  As per the say
\nof the petitioner the licensee committed breach of the terms &
\nconditions hence the Licensor was constrained to issue notice dated
\n7\/10\/2006. Pursuant to the said notice, as stated by the petitioner
\nin  memo of this petition, the respondent no.2 came in person and
\nhanded over license fee in arrears and also handed over keys and
\npossession of the premises under the hand-written note on 4\/12\/2006.
\nRespondent no.1 & 2 thereafter, as per the say of the petitioner
\nin the memo of the petition, forcibly broke upon the lock of the said
\npremises and trespassed  there into. When petitioner came to know
\nthese, he had to proceed immediately for seeking appropriate remedy
\nand hence the proceedings under section 145 of Criminal Procedure
\nCode 1973. The application dated 4\/5\/2007 is placed on record. The
\nproceedings were initiated. The statement of the petitioner came to
\nbe recorded, the notes were exchanged.\n<\/p>\n
The
\n\trespondent no.3 PSI of ‘A’ Division Police Station initiated
\n\tproceeding before the Executive Magistrate, Bharuch. On behalf of
\n\tthe petitioner further documents came to be produced under the list
\n\tdated 28\/6\/2007 which included hand written note dated 4\/12\/2006
\n\twritten by respondent no.2 and communication dated 4\/12\/2006 to the
\n\tSecretary, Vinay Complex Housing Society and communication dated
\n\t2\/4\/2007 of the Vinay Complex Owners Housing Services Society Ltd.
\n\tThe respondent also placed on record list dated 28\/6\/2007. However
\n\tthey did not preferred to place any written reply.\n<\/p>\n
Subsequently
\n\tthe petitioner was examined and cross examined on behalf of
\n\trespondent no.1  & 2. Respondent nos. 1 & 2 were also
\n\tsubjected to examination. Respondent no.3 was also examined before
\n\tthe Executive Magistrate.  After hearing the matter Executive
\n\tMagistrate rendered decision dated 28\/1\/2008 and final order dated
\n\t11\/3\/2008 ordering respondent no.1 & 2 to handover possession to
\n\tthe petitioner. The respondent no.2 thereafter preferred revision
\n\tapplication against the order of Learned Magistrate before learned
\n\tSessions Judge & Fast Track Court No.6 , Bharuch, being Criminal
\n\tRevision Application No. 31 of 2008 reversing the judgment and order
\n\tpassed by Mamlatdar and Executive Magistrate passed in Cr.P.C.\/145,
\n\tCase No.3 of 2007. Learned Addl. Sessions Judge allowed the said
\n\trevision application.\n<\/p>\n
\tFeeling
\n\taggrieved by the said decision petitioner has preferred present
\n\trevision application before this Court, challenging the judgment &
\n\torder of Learned Addl. Sessions Judge on the facts & grounds
\n\twhich are according to him indisputable,which are as under.\n<\/p>\n
a)
\nThe respondent in his list of documents produced letter dated
\n28\/6\/207 along with letter dated 7\/10\/2006. However earlier letter
\ndated 17\/9\/2006 is not produced.\n<\/p>\n
b)
\nPetitioner received letter dated 25\/5\/2007 from NTPC saying name of
\nrespondent no.2 has been struck off from role of the corporation
\nw.e.f. 21\/6\/2006 and he is no more an employee of the Corporation.\n<\/p>\n
c)
\n\tRespondent no.2 subsequently represented to the petitioner as if he
\n\twas an employee of the Corporation and demanded certain documents
\n\tfor lease check list and requested for availing renewal of company
\n\tleased accommodation.\n<\/p>\n
d)
\n\tPetitioner procured copy of electricity consumption during month of
\n\tNovember- December 2006.\n<\/p>\n
e)
\nPetitioner impugned the judgment of Addl. Sessions Judge on the
\nground that learned Addl. Sessions Judge  by taking hyper-technical
\nview  without assessment  of facts  emerging on record and the
\ndecision of the Executive Magistrate, passed the order.\n<\/p>\n
f)
\nBoth the Courts have found that there is leave and license agreement
\nand that period had expired and under a writing dated 4\/12\/2006
\npetitioner had received keys of the flat and Rs.12,000\/-.\n<\/p>\n
g)
\nRespondent no.1 & 2 are having 3 flats in the said Vinay Complex.\n<\/p>\n
h)
\nRevisional Court’s finding that the respondent entered into the
\npremises by committing criminal trespass on or about 24-25th
\nApril 2007 and accepting the plea of respondent that new license
\nagreement, which is a false plea.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the in the
\n\tinstant case the deposition of the opponent no. 2 came to be
\n\trecorded on 10.07.2007 and that of his wife came to be recorded no.
\n\t12.07.2007. With respect to the handing over of keys on 4.12.2006
\n\tthere is consistency in their case in their evidence in chief. It is
\n\tthe case of the opponent no. 1 that upon handing over of the key,
\n\tthe opponent had to go for personal and official reasons to Delhi It
\n\tis the case of the opponent no.1 specifically which could be seen
\n\tfrom his deposition at page no 103 last para that in or around 24th
\n\t25th April 2007 that he had been called by the applicant
\n\tand told that the opponent could now reside in the flat no. 107 and
\n\tthat a new agreement would be executed with the modification that
\n\tthe deposit now would be 19 thousand and the rent would be 6500
\n\tinstead of Rs. 6000.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the the case of
\n\tthe opponent was that had this been not so said by the petitioner
\n\tthe opponents would not have shifted into the said premises.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that  at this stage it
\n\tis important to note the clause 4,5,7, 10, 12, and 14 of the
\n\tAgreement which is found at page no. 11 of the reply of the opponent
\n\tdated 2.03.2009.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the the opponent
\n\thimself has contended that had the intent of the opponent was to buy
\n\tover the flat in question, was clear then the opponent would not
\n\thave handed over the keys and express his willingness for the flat
\n\tto be sold, in that case it is also the opponent’s case that the
\n\tapplicant was to pay over the moneys to the opponent. In fact
\n\tlandlord is never required to pay any money to the tenant and hence
\n\tthe say of the opponent becomes ample evidence to show that he has
\n\thanded over the possession and keys to the applicant on 4.12.2006.
\n\tThe claim of receiving money was wholly untenable in view of the
\n\tclause 12 of the License Agreement.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the from
\n\t4.12.2006 the premises was in the possession of the applicant for
\n\twhich the applicant had paid maintenance from January to May receipt
\n\tare to be found at page 68 on the compilation.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the conspicuous
\n\tminuscule meter reading 5 for the month of November, December 2006
\n\tand zero reading for January February and once again minuscule
\n\treading for  5 for March-April 2007 and there after 265 units for
\n\tthe month of May and June as per the bills produced at page 144 to
\n\t147 also are annexed to the application made under Section 391 read
\n\twith section 401 of CR PC for additional material on record,
\n\testablishing that during the said period the premises was not in use
\n\tor occupation and thereafter on 24 , 25th April 2007 as
\n\tper say of the opponent himself he shifter into the premises on the
\n\tsay of the applicant for new agreement seems to be palpably false
\n\tand misleading.\n<\/p>\n
\tThe
\n\tLearned Advocate for the petitioner contended that thus its becomes
\n\tclear that from that date 24 or 25 of April the opponent illegally
\n\tmoved into the premises and these dates are emerging from his own
\n\tdeposition.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that from two months
\n\tfrom the date i.e. 24 or 25th of April the applicant moved an
\n\tapplication complaint to the Police Inspector on 4.05.2007 informing
\n\thim that the opponent have illegally moved into his premises. The
\n\tReport of the inspector is also filed before the Executive
\n\tMagistrate within the two months from the date of 24 or 25 th April
\n\thence the findings of the learned Session Judge are wrong and
\n\tdeserve to be quashed.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the opponents
\n\thave no regards for truth. The opponent lured the applicant in
\n\tbelieving that the opponent was serving with NTPC and the premises
\n\twas to be rented on official rental. But the fact remains that the
\n\topponent was out of service from 21.06.2006. All the correspondence
\n\tmade by the opponent produced on record demanding documents from the
\n\tapplicant making show as if the applicant was in fact in service of
\n\tNTPC whereas he was not in services after 21.06.2006.\n<\/p>\n
The
\n\tLearned Advocate for the petitioner contended that the in view of
\n\tthis the application may be allowed.\n<\/p>\n
\tThe
\n\tLearned Advocate for the petitioner contended that the opponents be
\n\tdirected to vacate the premises in question in terms of the order of
\n\tthe Executive Magistrate.\n<\/p>\n
In
\n\treply to the petition, respondent no. 1 & 2 have filed their
\n\twritten submissions  countering the pleadings taken in the petition
\n\tby the petitioner. It is stated in the submission that the
\n\tpetitioner was not followed prescribed standard for seeking
\n\tinformation from NTPC under RTI Act, but the petitioner used letter
\n\tdated 18\/5\/2007 to cause serious illegal influence and gaining
\n\tpecuniary advantage, and the petitioner has failed to provide any
\n\tproof for seeking information under RTI Act. It is stated in the
\n\tsubmission that several false electricity bills totaling 6 nos for
\n\tthe period from November 2006 to September 2007, produced on record
\n\tare fake. It is also averred in the  written submission that no
\n\tmoney of any kind was paid by the NTPC  to the petitioner and hence
\n\tlease agreement was strictly between the petitioner and respondent
\n\tno.2 herein only. Therefore bringing NTPC name in any kind in the
\n\tproceedings is completely trash and is an attempt to misled the
\n\tCourt.\n<\/p>\n
It
\n\tis further averred in the written submission that the lease
\n\tagreement was of 11 months beginning from 1\/6\/2006 to 30\/4\/2007, and
\n\tfor premature termination of the lease, the condition  of one month
\n\tnotice from either side is prescribed,  which either party have ever
\n\tbeen observed.  Petitioner’s letter dated 7\/10\/2006 was not a notice
\n\tand without prior notice termination of lease agreement cannot be
\n\teffected  into, hence the lease agreement remained effective till
\n\t31\/4\/2007.  It is challenged in the written statement that the
\n\tpetitioner is concocting theory of handing over flat no. 107 on
\n\t4\/12\/2006 by the respondents to the petitioner which is false and
\n\tmere message of sending key is not a conclusive proof of the flat
\n\tfinally handing over to the petitioner.  It is stated in the written
\n\tstatement that no procedure have been followed in the present case
\n\tand hence the case is not of criminal trespass and the petition
\n\tdeserves to be dismissed.\n<\/p>\n
\tThis
\n\tCourt has heard learned advocate for the petitioner and party in
\n\tperson. The following indisputable aspects of the matter need to be
\n\tenlisted here below for the sake of convenience<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tpremises , Flat No. 107 belongs to the applicant and he had let
\n\t\t\t\t\tit to opponent no 1 and 2 on  leave and license basis on
\n\t\t\t\t\tAgreement dated 15.05.2006 with effect from 1.06.2006.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\t leave and license basis on Agreement contained term that in
\n\t\t\t\t\tcase the opponent desirous of buying the premises and the
\n\t\t\t\t\tapplicant was selling the same the opponent would be given first
\n\t\t\t\t\tpreference.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tpremises was rented at license fees of Rs. 6000 per month with
\n\t\t\t\t\ttwo months advance deposit for covering out standing electricity
\n\t\t\t\t\tdues maintenance charges in the event of the same remaining due
\n\t\t\t\t\ton vacating the premises.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tapplicant though his advocate sent a notice on 7.10.2006 calling
\n\t\t\t\t\tupon his tenant to pay up the rent which had not been paid for
\n\t\t\t\t\ttwo months.\n<\/p>\n
\t\t\t\t\t In
\n\t\t\t\t\tresponse thereto the opponent no. 1 sent note in his own
\n\t\t\t\t\thandwriting that he is sending keys and two months rent
\n\t\t\t\t\tRs.12000\/- within two hours. The said note forms part of the
\n\t\t\t\t\trecord.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\topponent no. 1 has in fact admitted during his cross examination
\n\t\t\t\t\tthat in compliance with his note he in fact handed over the keys
\n\t\t\t\t\tto the applicant right on 4.12.2006.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tapplicant on coming to know that the opponent has illegally
\n\t\t\t\t\tbroken open the locks on the premises and entered it
\n\t\t\t\t\tunauthorizedly lodged a written complaint on 4.05.2007 with the
\n\t\t\t\t\tconcerned Police Inspector for doing need full in the matter.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tconcerned Police Inspector after recording Statements of the
\n\t\t\t\t\topponent herein above filed his report under Section 145 of the
\n\t\t\t\t\tCR P C on 16.05.2007 informing the Executive Magistrate that
\n\t\t\t\t\tthere was likelihood of public order problems and hence action
\n\t\t\t\t\twere required to be taken immediately. This Report dated
\n\t\t\t\t\t16.05.2007 appears to have been received in the office of the
\n\t\t\t\t\texecutive Magistrate on 19.05.2007.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\topponent no.1’s wife sent a communication to the Senior
\n\t\t\t\t\tSuperintendent of Police on 4.05.2007 inter alia informing him
\n\t\t\t\t\tthat the lease of 11 months had expired the deposit amount of
\n\t\t\t\t\tRs.12000\/- was not being returned to her husband and applicant
\n\t\t\t\t\twas not permitting them to remove their luggage from the
\n\t\t\t\t\tpremises.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\topponent No.1 gave his statement to the concerned Police
\n\t\t\t\t\tInspector on 8.05.2007 which is on page 71 in the compilation,
\n\t\t\t\t\tstating that   the landlord was not paying heed to his request
\n\t\t\t\t\tfor transferring the Electricity connection from the developer
\n\t\t\t\t\tto landlords namer as it was essential for his employer NTPS as
\n\t\t\t\t\twell as Income Tax Department. The applicant has further stated
\n\t\t\t\t\tthat the landlord informed him that as his son Shri Dhaval Desai
\n\t\t\t\t\twas to go to Canada he wanted to sell the flat and hence in
\n\t\t\t\t\torder to facilitate landlords requirement for showing flats to
\n\t\t\t\t\tpotential buyers he that is the opponent gave him keys of the
\n\t\t\t\t\tflat.\n<\/p>\n
\t\t\t\t\t This
\n\t\t\t\t\tfacts of handing over of keys on 4.12.2006 have also surfaced
\n\t\t\t\t\tduring the cross examination of the opponent no.1,  before the
\n\t\t\t\t\tExecutive Magistrate.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\topponent No. 1 has though  stated that keys were given to the
\n\t\t\t\t\tlandlord for facilitating his task to show the flat to potential
\n\t\t\t\t\tbuyers but as the opponent was out of station at Delhi and
\n\t\t\t\t\tKanpur the landlord applied his own locks.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\textract of the depositions of the opponent no. 1 produced on
\n\t\t\t\t\tpage 93 of the compilation go to show that the opponent himself
\n\t\t\t\t\thad handed over the keys on sympathetic ground and for
\n\t\t\t\t\tfacilitating showing of the flat to potential buyers to the
\n\t\t\t\t\tlandlord.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\topponent admitted during his deposition that he had not paid
\n\t\t\t\t\trent for the month of September October 2006. He also admitted
\n\t\t\t\t\tthat he did not reply to the Advocate Notice.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\t   opponent has also admitted as could be seen from his
\n\t\t\t\t\tdeposition reproduced at page 98 that possesses Flat no. 106,
\n\t\t\t\t\t405 and 505 in Vinay Complex. ( It may be noted that premises in
\n\t\t\t\t\tdispute is Flat No. 107 i.e. apart therefrom the opponent has
\n\t\t\t\t\tthree more Flats in his possession in the same very complex).\n<\/p>\n
\t\t\t\t\t On
\n\t\t\t\t\tpage 98 from the reproduction of the testimony of the opponent
\n\t\t\t\t\tno. 1 it could be seen that he clearly admitted that on
\n\t\t\t\t\t4.12.2007 he handed over the keys and Rs.12000\/- to Vyomesh
\n\t\t\t\t\tDesai ( Landlord and applicant herein above).\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tExecutive Magistrate has recorded clear finding to this effect
\n\t\t\t\t\tin his order dated 28.01.2008.\n<\/p>\n
\t\t\t\t\t The
\n\t\t\t\t\tLearned Session Judge has also recorded and accepted these
\n\t\t\t\t\tfindings.\n<\/p>\n
\t\t\t\t\t But
\n\t\t\t\t\tthe learned Session Judge has held that as the applicant could
\n\t\t\t\t\tnot disclose the exact date on which the opponents illegally
\n\t\t\t\t\tentered into the premises the application under Section 145
\n\t\t\t\t\tallowed. On this premise the order of the Executive Magistrate
\n\t\t\t\t\tis quashed and set aside.\n<\/p>\n
\tAgainst
\n\tthe backdrop of these factual indisputable aspects the oder impugned
\n\tis required to be examined.\n<\/p>\n
\tThe
\n\tLearned Session Judge has held that as the applicant could not prove
\n\tthat the opponent had illegally taken possession of the flat in two
\n\tmonths preceding the date of his complaint the invoking of Section
\n\t145 of the Cr P C was not warranted.\n<\/p>\n
\tThe
\n\t Learned Session Judge  has held that even if it is assumed that the
\n\tkeys were handed over to the owner applicant on 4.12.2007 but that
\n\tin itself would not amount to handing over the possession and in
\n\tfact looking to the License Agreement the opponent had right to be
\n\tin the premises till entire life of the agreement or License Period
\n\twhich was to expire only on 30.04.2007.\n<\/p>\n
\tThis
\n\tCourt is of the view that the Learned Session Judge has not
\n\tappreciated the real purport and ambit of Section 145 of Cr.P.C. The
\n\treal purport and ambit of section 145 shows that the court while
\n\tdealing with the matters arising under Section 145 of Cr PC need not
\n\tadjudicate upon the title or entitlement based upon interpretation
\n\tof Agreement etc.<\/p>\n
\tThe
\n\tLearned Session Judge erred in holding that though the keys were in
\n\tfact handed over, the possession cannot be said to have been give
\n\tback to the licensor. In fact the evidence on record go to show that
\n\tthe case of the opponent of handing over merely keys without
\n\tprejudice to his right to hold on to the premises till the expiry of
\n\tthe license period which was falling on 30.04.2007 cannot be said to
\n\thave established. Had that been the case then, so many aspects
\n\tarising and requiring explanation from him would not have remained
\n\tun-answered.\n<\/p>\n
\tIn
\n\tfact handing over the key to the landlord and story of making
\n\tpayment of Rs.12000\/- only for facilitating the landlord showing
\n\tflats to potential buyers cannot be said to have been established.\n<\/p>\n
\tThe
\n\topponent could not successfully show as to why was he insisting on
\n\tdocuments and transfer of the name of the landlord in place of the
\n\tdeveloper in name of his employer i.e. NTPC when in fact he ceased
\n\tto be in their employment since 21.06.2006. Nor could the opponent
\n\tcontrovert the applicant’s say that the opponent was not in
\n\temployment of NTPC from 21.06.2007 till he lured the applicant into
\n\tbelieving that the Flat was being rented as employee of the NTPC and
\n\tthe documents were required to be produced to them. It is required
\n\tto be noted that at one place the very opponent in subsequent reply
\n\thas stated that the flat was hired in his personal capacity only and
\n\tif it was so, why was then insistence for those documents, if they
\n\twere not required for claiming reimbursement.\n<\/p>\n
\tThe
\n\tlearned Session Judge committed serious error in holding that the
\n\tapplicant was required to establish beyond doubt the date on which
\n\tthe possession was said to have been illegally taken over was
\n\tfalling within preceding two month of the lodgment of such
\n\tcomplaint. In fact applicant or the person invoking Section 145 of
\n\tCr PC would not necessarily be aware of the exact date on which the
\n\tillegal possession might have obtained by the trespasser.  In fact
\n\tthe circumstances in the instant case rather go to show that the
\n\topponents moved into the premises well within the period of two
\n\tmonths preceding filing of the complaint by the applicant with
\n\tPolice Inspector.\n<\/p>\n
The
\n\tprescription of period of two months in the proviso to the section
\n\t145 (4)  is for clothing the Magistrate with power to put the party
\n\tin possession who happened to be dispossessed wrongfully in two
\n\tmonth preceding the report of the police officer is received than by
\n\tvirtue of deeming fiction of possession the same is to be restored
\n\twhich is never final and is only for  maintaining peace in the
\n\tsociety. Therefore the Session Judge erroneously insisted upon exact
\n\tknowledge on the part of the applicant of the date on which the
\n\tpossession was alleged to have been taken by the opponents.\n<\/p>\n
\tIn
\n\tthe instant case the evidence on record couple with admission of the
\n\topponent for giving keys to the applicant for enabling him to show
\n\tthe flat to potential buyers and lake of giving exact evidence as to
\n\twhen he i.e. opponent getting into the flat after 4.12.2007 would
\n\tpersuade the Court to hold that the opponent forced themselves into
\n\tthe flat on or before 24th or 25th of April which version gets
\n\tsupport from the Electricity Consumption also.\n<\/p>\n
\tThe
\n\tMiscellaneous Civil Application  No. 14516 of 2008 for producing
\n\tdocuments also needs to be allowed in view of the fact that they are
\n\tin the nature electricity bills etc.<\/p>\n
\tLearned
\n\tSession Judge  has in my view patently erred in allowing the
\n\tRevision therefore the order and judgment of Learned Session Judge
\n\tdated 17.06.2008 impugned in this petition is required to be quashed
\n\tand set aside which will have resultant effect of reviving the order
\n\tdate 28.01.2008 and 11.03.2008  passed by the Executive Magistrate.\n<\/p>\n
\tThe
\n\tapplication is allowed. The order of Learned Session Judge  dated
\n\t17.06.2008 is hereby quashed and set aside.  The order dated
\n\t28.01.2008 and 11.03.2008 would stand revived and the applicant
\n\twould be entitled to possession of the premises being Flat No. 107
\n\tVinay Complex Bharuch i.e. the Flat in question with the help of
\n\tconcerned authorities. This pronouncement is not declaring final
\n\trights over the property in question and parties shall have liberty
\n\tto avail their remedy under the law against each other.\n<\/p>\n
\tIn
\n\tthe result, the opponent shall vacate the premises and handover
\n\tpossession within thirty days (30 days) from today, failing which
\n\tthe applicant\/petitioner will be entitled to enforce recovery of
\n\tpossession of the premises in question with the help of concerned
\n\tauthorities, including the police authorities.\n<\/p>\n
\tRegistry
\n\tis directed to communicate this order to party-in-person as
\n\texpeditiously as possible.\n<\/p>\n
                                                      [
\nS.R. BRAHMBHATT, J]<\/p>\n
\/vgn<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Vyomesh vs Sangeetaben on 27 October, 2010 Author: S.R.Brahmbhatt,&Nbsp; Gujarat High Court Case Information System Print CR.RA\/626\/2008 17\/ 17 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 626 of 2008 With CRIMINAL MISC.APPLICATION No. 14516 of 2008 In CRIMINAL REVISION APPLICATION No. 626 of 2008 =============================================== VYOMESH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-188714","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nVyomesh vs Sangeetaben on 27 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vyomesh-vs-sangeetaben-on-27-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vyomesh vs Sangeetaben on 27 October, 2010 - 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