1990 P Cr (PLP)

This application made under section 561‑A, Cr.P.C. raises an interesting question with regard to the order of restoration of possession of the premises to ~: person who was not in physical possession of the same at tile time of its attachment under the provisions of subsection (4) of section

115. Cr.P.C passed by 1st Additional Sessions Judge (East) Karachi, while remanding the case to t Assistant Commissioner and S.D.M (Central), Karachi.

2. Applicant Muhammad Toufique Chotani was a tenant of premises bearing No. 122‑Z, Bawani Mansion, situated in Kathiawar Co‑operative Housing B Society, Karachi lie was inducted as tenant by the previous owners of the premises who sold it to respondent No.l, who in turn gifted the same to his son respondent No.2. 1t is alleged that the applicant delivered possession of the said premises to one Muhammad Iqbal, from whom Nizamuddin, respondent No.3, got possession unauthorisedly. On 11‑12‑1987 the respondent No.2 made an application to S.H.O. Bahadurabad P.S. stating the above facts and alleging therein about the threats given by respondent No.3, when he approached to him for vacating the said premises. On 12‑12‑1987, the S.H.O. Bahadurabad P.S submitted a report under section 145, Cr.P.C., to Assistant Commissioner and S.D.M. (Central) Karachi, for taking action against Nizamuddin. respondent No

3. On 20‑12‑1987, the learned Magistrate passed an order under subsection (4) of section 145, Cr.P.C., directing the attachment of the disputed premises, which was complied with. Nizamuddin, respondent No.3 appeared before the Magistrate and he moved an application duly supported by an affidavit stating therein that he had no interest in the disputed premises. The applicant who was not made a party also appeared before the Magistrate and contested the proceedings. The case proceeded before the learned S.D.M. who disposed of the,, same vide order dated 20‑1‑1988 in the following terms. "Parties present alongwith their counsel and heard them at length and verified the facts myself. Since Toufique has already shifted in 74, Ghaffar Saeed Street, House No.7/8, Banglor Town, Karachi and rented the Flat No.122/Z of Bawani Mansion situated at Tipu Sultan Road; Adamjee Nagar of K.C.H.S. Karachi No.8, to one Nizamuddin at his own. Since serious breach of peace exists, I therefore direct the parties to approach Civil Court for entitlement. The Flat No .122/Z shall continue to be sealed till the decision of entitlement by the Civil Court."

3. The applicant challenged this order in Cr. Revision No.14 of 1988. The respondent No.2 also filed Criminal Revision No.19 of 1988 against this order. Both these revisions were heard by Ist Additional Sessions Judge (East) Karachi, who decided them by a consolidated judgment dated 5‑5‑1988, and remanded the case with the following direction. "According to subsection (6) of section 145, Cr.P.C. the possession is to be restored to the party found to be in possession at the time of order under first proviso to subsection (4). The record of the lower Court shows that Nizamuddin had stated before the Court that he had no concern with the property. The order dated, 20‑12‑1987 was complied with by the S.H.O. by sealing the flat under mashirnama dated, 23‑12‑1987. This mashirnama shows that the flat was lying vacant on that day. According to the personal enquiry made by the learned Magistrate the flat was rented out by Toufique to Niramuddin who has now no interest with the property. As such the possession shall be restored to applicant Dr. Abdul Rauf. The learned Magistrate then shall pass an order under subsection (1) of section 145, Cr.P.C., and thereafter proceed with the matter according to the procedure laid down in section 145, Cr. P.C."

4. Pursuant to the order of Additional Sessions Judge the Bahadurabad P.S. resealed the disputed premises and restored its possession to respondent No.2, who is said to have rented it out to Abdul Rauf, respondent C No.5. This part of the order dated, 5‑5‑1988 passed by 1st Additional Sessions Judge (East) Karachi, is the subject‑matter of this application filed under section 561‑A, Cr.P.C.

5. Is have heard Mr. Amir Hani, learned counsel for applicant, Mr. Abdul Oadir Halepota, learned counsel for respondent No.2 and Mr. K.M. Nadeem, learned A.A: G. for State. The learned AA.‑G. has supported the contentions raised on behalf of applicant.

6. There is nothing on record to show that respondent No.2 was ever put in possession of the disputed premises or he was ever dispossessed by the applicant. D The complaint made by respondent No.2 to S.H.O. Bahadurabad Police Station is silent about it. Likewise the witnesses examined on behalf of respondent No.2 do not utter a word about this aspect of the case. The respondent No.2 for the first time made improvements in his written arguments submitted before Assistant Commissioner and S.D.M. (Central) Karachi on 18‑1‑1988, by introducing new facts to the effect that on vacating the premises by said Muhammad lqbal he saw Nizamuddin, respondent No.3 forcibly occupying the said premises which was in his possession. This plea was contrary to the case set up by respondent No.2 before the police and also before the Magistrate. The applicant has all along claimed possession of the disputed premises. Nizamuddin, respondent No.3 had also supported the applicant in this respect. He had been depositing the rent of this, premises in the office of concerned Rent Controller. The respondent No:2, in fact resorted to proceedings under section 145, Cr.P.C. with a view to defeat law which provides ejectment of tenant under the provisions of Sind Rented Premises Ordinance, 1979. The order of the learned Additional Sessions Judge regarding restoration of possession to respondent No.2, after holding that the orders of E S.D.M. were unlawful, is not warranted by law. Again the restoration of possession to respondent No.2 on the strength of mashirnama prepared by the police officer is contrary to the norms of settled law. Even if it is accepted for argument's sake that the applicant had sub‑let the premises to respondent No.3, the respondent No.2 was obliged to file ejectment proceedings against them before the Rent Controller.

7. In the case of The State v. Sheoratan Singh Prahlad Singh and others, reported in A.I.R. 1951 Nagpur 201, a Division Bench observed. "It is but right that when the jurisdiction to act under the section is found wanting the Magistrate should restore the status quo ante by directing the delivery of the property to the party from whom it was attached."

8. On all these scores the learned Additional Sessions Judge ought to have directed delivery of possession of the disputed premises to applicant who was all' along claiming it as tenant of the said premises. I would, therefore set aside the impugned order dated 5‑5‑1988 passed by 1st Additional Sessions Judge (East), Karachi in so far as the possession of premises in dispute is concerned. The respondent No.2 or any person Claiming through him is directed hand over vacant possession of premises No.Z‑122, First Floor, Commercial Area, Bawani) Mansion, Tipu Sultan Road, Karachi, to applicant.

9. The application made under section 561‑A, Cr.P.C. is allowed in the above terms. S.A./M‑996/K Possession restored to petitioner.