{"id":19258,"date":"1985-11-08T00:00:00","date_gmt":"1985-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/roshan-porus-mistry-vs-state-of-maharashtra-and-ors-on-8-november-1985"},"modified":"2017-02-07T18:57:40","modified_gmt":"2017-02-07T13:27:40","slug":"roshan-porus-mistry-vs-state-of-maharashtra-and-ors-on-8-november-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/roshan-porus-mistry-vs-state-of-maharashtra-and-ors-on-8-november-1985","title":{"rendered":"Roshan Porus Mistry vs State Of Maharashtra And Ors. on 8 November, 1985"},"content":{"rendered":"
Bombay High Court<\/div>\n
Roshan Porus Mistry vs State Of Maharashtra And Ors. on 8 November, 1985<\/div>\n
Equivalent citations: 1986 (1) BomCR 385<\/div>\n
Author: B Kolse-Patil<\/div>\n
Bench: B Kolse-Patil<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
B.G. Kolse-Patil, J. <\/p>\n
 1. This is an application challenging the order dated April 3, 1984
\nof the Metropolitan Magistrate, Borivli passed under section 146 of the
\nCriminal Procedure Code in respect of Flat No. 20 in Siddhi Vinayak Co-
\noperative Housing Society at Malad. Respondent No. 2 claimed that he
\nwas in possession of the said flat from January 5, 1984 till March 25,
\n1984 when he was dispossessed by the petitioner and respondent Nos. 3
\nand 4. The petitioner is the divorced wife of respondent No. 5.
\nRespondents Nos. 3 and 4 are the parents of respondent No. 5. The flat
\nin dispute is owned by respondent No. 5. According to respondent No. 2,
\nhe was put in the possession of the flat on 5-1-1984 by respondent No.
\n5 in pursuance of an agreement dated 15-10-1983. However, the
\npetitioner, respondent No. 3 and respondent No. 4 dispossessed him on
\n25-3-1984. He, therefore, preferred applications under sections 145(1)
\nand 146(1) of the Criminal Procedure Code before the Metropolitan
\nMagistrate, Borivli on March 26, 1984 making the petitioner and
\nrespondents Nos. 3 and 4 as parties to the proceedings. March 30, 1984
\nwas the date fixed for their appearance. Incidentally March 30, 1984
\nwas also the date fixed by the City Civil Court in the matrimonial
\npetition for divorce between the petitioner and respondent No. 5 and
\nthe matter was kept for hearing at 2.45 p.m. on that day. Therefore, on
\nthat date, the petitioner and respondent No. 4 went to Metropolitan
\nMagistrate’s Court at Borivli at 11 a.m. and engaged Advocates Shri
\nGavali and Shri Singh and instructed them to seek an adjournment for
\nfiling their say. Both the applications under sections 145(1) and
\n146(1) were given the same number and on enquiry, Advocate Gavali
\ninformed the petitioner that the matter was adjourned to April 4, 1984.
\nHowever, it appears that the application under section 146(1) was
\nactually treated as a separate application by the Magistrate and
\nadjourned to April 3, 1984 without their knowing it and on that day the
\norder of sealing the flat was passed by him. On April 4, 1984 this
\npetitioner, respondents Nos. 3 and 4 appeared before the Magistrate and
\nlearnt that the ex parte order was passed and, therefore applied for
\nunsealing the premises. Against the order rejecting the said
\napplication, the petitioner has approached this Court.\n<\/p>\n
 2. Mr. Gumaste, learned Counsel for the petitioner submitted
\nthat the impugned order is bad in law and is also unjustified. He
\nattacked the agreement dated 25-10-1983 executed by respondent No. 5 in
\nfavour of respondent No. 2 under which respondent No. 2 claimed to be
\nin possession of the flat since 5-1-1984. Mr. Gumaste submitted that
\nthe agreement shows an unconscionable bargain in favour of respondent
\nNo. 2. The agreement shows that it was made on 25-10-1983 and a cheque
\nof Rs. 35,000\/- dated 5-1-1984 was given on that day. The Bank Account
\nof respondent No. 2 shows that he did not have sufficient funds to
\ncover the cheque on 5-1-1984. A letter sent by the bank to the learned
\nMagistrate along with Bank Account of respondent No. 2, clearly
\nmentions that Cheques No. 187969 dated 5-1-1984 issued by respondent
\nNo. 2, which was sought to be encashed on 19-3-1984, was not cleared on
\naccount of difference between the words and the figure of the amount of
\nthe cheque. The Bank Account also shows that on 19-3-1984 the
\nrespondent No. 2 deposited Rs. 35,000\/- and another Cheque Bearing No.
\n187970, obviously next in series, was encashed. Both the cheques were
\nof Rs. 35,000\/- each and dated 5-1-1984. It, therefore, follows that
\nthe Cheque No. 187970 must have been issued after the first Cheque
\nrebounded i.e. after 19-3-1984. Even though the cheque No. 187970 was
\nissued after 19-3-1984, very surprisingly we find that the said Cheque
\nNo. i.e. 187970 has been mentioned in the endorsement, purported to
\nhave been made on 5-1-1984, below agreement at Exh. J. Therefore,
\naccording to Mr. Gumaste the endorsement made on the agreement is not
\nonly ante-dated but false, and consequently, the story of respondent
\nNo. 2 having been put in possession of the flat on 5-1-1984 is false.
\nAttacking the letter produced by respondent No. 2, dated 28-3-1984
\npurported to have been written by respondent No. 5, to the Secretary of
\nthe Co-operative Society requesting him to transfer the flat and share
\ncertificates in the name of respondent No. 2 Mr. Gumaste submitted that
\nunder the agreement, the flat was to be transferred within a period of
\n10 years for a total price of Rs. 1,40,000\/-. According to respondent
\nNo. 2, he had paid Rs. 35,000\/- in cash at the time of the agreement
\nand Rs. 35,000\/- by a cheque, making together Rs. 70,000\/-. Therefore,
\nthe question of transferring the flat on 28-3-1984 was out of question
\nand hence the letter written by respondent No. 5 to the Secretary of
\nthe Co-operative Society cannot be relied upon. Mr. Gumaste further
\nsubmitted that the area of the flat is 560 sq. ft. situate at Malad
\nwhich would not cost less than Rs. 3 lakhs, on the date of the
\nagreement. He also attacked the mode of the deferred payment which is
\nRs. 70,000\/- at the time of taking the possession and Rs. 70,000\/- 10
\nyears thereafter. He, therefore, submitted that this agreement has been
\nexecuted with the ulterior motive to defeat the rights of the
\npetitioner in the matrimonial petition. In pursuance of the agreement,
\nrespondent No. 2 was to pay Rs. 250\/- per month to respondent No. 5,
\nout of which respondent No. 5 was under an obligation to pay Rs. 140\/-
\nto the Society towards the maintenance charges. To sum up, according to
\nMr. Gumaste, respondent No. 2 was never put in possession of the
\ndisputed flat. He also invited my attention to the fact that no
\naffidavit of the neighbours or of the independent persons to prove the
\nalleged possession or dispossession of respondent No. 2 have been filed
\nin the proceedings. Neither the agreement nor any document was produced
\nin the proceedings till the 19th April, 1984 when the petitioner
\npreferred an application in the proceedings calling upon respondent No.
\n2 to produce the documents. Both the applications were posted for
\nhearing on the 4th April, 1984, according to the affidavits of
\nAdvocates Gavali and Singh. Even then the learned Magistrate passed the
\norder on the 3rd April, 1984 directing the sealing of the flat which
\norder was executed late in the evening under a panchanama on the same
\nday. According to him not a single article belonging to respondent No.
\n2 was found either in the disputed flat or outside the premises.\n<\/p>\n
 3. Mr. Deodhar, the learned Counsel for respondent No. 2 on
\nthe other hand submitted that the petitioner has no locus standi to
\npursue the present application as admittedly the petitioner is divorcee
\nsince 15-9-1984. He further submitted that the petitioner had
\ncategorically given her address as Flat No. 9, 2nd floor. Transval
\nTerrace Corner of Grant Road, Bombay – 8 in the caption of the Marriage
\nPetition, in the verification of the pleadings and in the body of the
\nplaint Exh. 7 and 8. He, therefore, submitted that she has made a
\ndeliberate false statement on oath. He vehemently supported the
\nagreement dated 25-10-1983 executed by respondent No. 5 in favour of
\nrespondent No. 2. He says that as no household article were mentioned
\nin the panchanama, it falsifies the case of the petitioner and
\nrespondent Nos. 3 and 4 that they were staying in the disputed flat on
\n25-3-1984.\n<\/p>\n
 4. A very short question which arises for my consideration is
\nwhether the Magistrate was justified in passing the order directing the
\nsealing of the flat and as to who out of the rival claimants was in
\npossession of the same.\n<\/p>\n
5. As both the parties claimed to be in possession of the disputed
\nflat on March 26, 1984, the date of the filing of the proceedings, a
\nCommissioner was appointed with the consent of both the parties to take
\nand inventory of the articles in the disputed flat. My intention in
\nappointing the Commissioner was to verify the existence of the articles
\nof daily use if any lying in the disputed flat. The Commissioner
\nsubmitted his report on October 31, 1985 and the same is on record.\n<\/p>\n
 6. The articles found in the flat unerringly belong to the
\nmembers of the petitioner’s family. Even respondent No. 2 could not
\ndispute the said fact. These articles include those of daily
\nconsumption such as wheat, rice, vegetables etc. However, after getting
\nthe report of the Commissioner, he made certain allegations by filing
\nan affidavit to the effect that the petitioner and respondents Nos. 3
\nto 5 in collusion with the police might have planted the articles in
\nquestion after 3-4-1984 or might have placed these articles there
\nbetween 25-3-1984 and 3-4-1984. On the contrary the affidavits of four
\nneighbours supported the case of the petitioner that she herself and
\nher family members were residing in the disputed flat all along. Apart
\nfrom the same, there is an important piece of evidence namely affidavit
\nof Shri Thakur who served the summons on respondent No. 5 at the
\ndisputed flat on 31-3-1984. This shows that respondent No. 2 was never
\nput in possession of the flat. It is also very clear from the finding
\nof the household articles of daily use, some articles bearing
\nidentification marks of the petitioner and respondents Nos. 3 to 5,
\nthat they were in possession of the disputed flat even before 25-3-1984
\nand after that date till 3-4-1984. The panchanama reveals that
\nrespondent No. 4 was present in the flat when respondent No. 2 went to
\nexecute the order dated 3rd April, 1984 of the learned Magistrate.
\nAdmittedly the said panchanama was in respect of the sealing of the
\nflat and hence all the house hold articles lying inside the flat might
\nnot have been mentioned in the said panchanama. I am not inclined to
\naccept the arguments of Mr. Deodhar regarding the collusion between the
\npetitioner, respondents Nos. 3 to 5 and the police for planting the
\narticles in the disputed premises. The daily diary of the petitioner
\nfound in the flat and written upto 3rd April, 1984 and several other
\nhousehold articles found there are suggestive of the fact that the
\ndisputed flat was occupied by the petitioner and respondents Nos. 3 and
\n4, though the marriage-petition was pending between the petitioner and
\nrespondent No. 5 in the City Civil Court. Mr. Deodhar, contended that
\nthe petitioner had given a different address in the marriage petition
\nand therefore, he wanted me to draw an inference that she was not in
\npossession of the flat. The said contention cannot be accepted for the
\nsimple reason that the several articles bearing the name of the
\npetitioner were found by the Commissioner as has been stated in the
\nreport.\n<\/p>\n
 7. As against the abovesaid position, respondent No. 2 had
\nnever made out the case, any time, that he had his household articles
\nin the disputed flat. A stray allegation that the petitioner and
\nrespondents Nos. 3 and 4 had thrown his belongings out of the flat
\nbeing unsupported by any independent person, cannot be believed.
\nRespondent No. 2 did not care to bring the police and to drew a
\npanchanama of his articles if any. Hence I am not inclined to accept
\nhis allegation that he was dispossessed by the petitioner and
\nrespondents Nos. 3 and 4. If it is the case of respondent No. 2 that he
\nwas in the possession of the flat from 5-1-1984 upto 25-3-1984, he
\ncould have proved his possession by documentary evidence as well as by
\nfiling affidavits of his neighbours. I am also in agreement with Mr.
\nGumaste that the endorsement on the agreement dated 25-10-1983 itself,
\nante-dated and the Cheque No. 187970 issued by respondent No. 2 must
\nhave been issued by him on or after 19-3-1984 when the first cheque
\nBearing No. 187969 was dishonoured. Therefore, the endorsement below
\nthe agreement is ante-dated and consequently it does not prove the
\ndelivery of possession of the flat to respondent No. 2 on 5-1-1984.\n<\/p>\n
8. Thus I am of the view that the petitioner and her family members
\nall along possessed the disputed flat and respondent No. 2 tried to
\nhave recourse to the criminal proceeding by taking undue advantage of
\nthe so called agreement between himself and respondent No. 5.\n<\/p>\n
 9. Moreover the order of the learned Magistrate fails to
\nmention that he was satisfied that the case was that of an emergency
\nrequiring him to issue direction to seal the flat. In my opinion, the
\norder under section 146(1) of the Criminal Procedure Code cannot be
\npassed in a mechanical manner without applying the mind as to whether
\nthere exist an emergency or not. It must be clearly borne out from the
\norder of the Magistrate, even if he passes a composite order that he
\nwas satisfied that the conditions for issuing the preliminary order
\nunder section 145(1) and for issuing the order under section 146(1)
\nexisted. An order of attachment under section 146(1) being in the
\nnature of an act of confiscation, the Magistrate cannot make use of
\nthat section except on a full inquiry and in exceptional cases.\n<\/p>\n
 10. I, therefore, allow this application and quash the order
\ndated 3rd April, 1984 sealing the disputed flat and also the entire
\nproceedings under section 145 pending before the learned Magistrate.
\nThe Police Inspector of Malad Police Station is hereby directed to
\nhand-over the possession of the disputed premises to the petitioner and
\nrespondents Nos. 3 to 5. The petitioner and respondents Nos. 3 to 5 are
\nrestrained from transferring, alienating or creating any charge on the
\nflat till the rights of respondent No. 2 under the agreement dated 25-
\n10-1983 are decided by the Civil Court of a competent jurisdiction, it
\nrespondent No. 2 files a Civil Suit within the period of limitation. I
\nam also making it clear that observations made in this judgment in
\nrespect of the agreement in question are made only for the purpose of
\nthis proceeding and will not affect the merits of the Civil Suit if
\nany, is filed.\n<\/p>\n
11. Mr. Deodhar submitted that the operation of this order be
\nstayed for six weeks. I do not find any merit in this request. I am of
\nthe opinion that the petitioner and respondents Nos. 3 and 4 were in
\npossession of the flat on the date of the sealing. Justice demands that
\nthey should be restored to their original position. Respondent No. 2 is
\nalso not restrained from getting his rights, if any, proved in the
\nCivil Suit. Hence, the application for stay is rejected.\n<\/p>\n
 12. The petitioner will deposit Rs. 250\/- as additional
\nexpenses of the Commissioner.\n<\/p>\n
 13. The Commissioner is allowed to withdraw the entire amount
\ndeposited by the parties towards the expenses of the Commissioner.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Roshan Porus Mistry vs State Of Maharashtra And Ors. on 8 November, 1985 Equivalent citations: 1986 (1) BomCR 385 Author: B Kolse-Patil Bench: B Kolse-Patil JUDGMENT B.G. Kolse-Patil, J. 1. This is an application challenging the order dated April 3, 1984 of the Metropolitan Magistrate, Borivli passed under section 146 of the […]<\/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":[11,8],"tags":[],"class_list":["post-19258","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRoshan Porus Mistry vs State Of Maharashtra And Ors. on 8 November, 1985 - 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\/roshan-porus-mistry-vs-state-of-maharashtra-and-ors-on-8-november-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Roshan Porus Mistry vs State Of Maharashtra And Ors. on 8 November, 1985 - 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