2008 P Cr (PLP)

The appellant has filed this appeal under section 3 of the Law Reforms Ordinance, 1972 calling in question judgment of the learned Single Bench of this Court dated 22-3-2007.

2. Briefly, the appellant filed a complaint under sections 3/4 of Illegal Dispossession Act, 2005 against respondents Nos.1 to

5. In the said complaint, the appellant claimed to be owner of one Ihata measuring 9 Marlas which he had purchased from one Zulfiqar and Suhail against a consideration of Rs.25,000 on 1-5-1998. According to the appellant, he was in possession of the disputed property since 1-5-1998. He had also built a boundary wall and a room on the said plot. Despite above, respondent No.1 in league with respondents Nos.2 to 5, illegally and forcibly demolished the wall and room built on the said property and also took over possession of the same on 4-6-2006.

3. The appellant filed a complaint as mentioned above on 11-8-2006. The learned Additional Sessions Judge sent for a report from the S.H.O. The report of S.H.O. supported the claim of the appellant, the respondents were summoned for 22-9-2006. On 6-10-2006, copies of the statements were distributed to the respondents. The case was adjourned to 13-10-2006 for framing of charge. However, an application under section 265-K, Cr.P.C. was submitted by respondents Nos.1 to

5. Notice was issued to the appellant in the said application .In the meanwhile, vide order dated 28-10-2006, the learned Additional Sessions Judge directed that as interim relief the disputed property be handed over to the appellant. The S.H.O. Police Station Faizabad was also directed to make sure that the order of the Court was complied with. On 31-10-2006, respondents Nos.1 to 5 made a statement before the trial Court that they had delivered the possession to the appellant/complainant. On the same date, in the light of the statements of respondents Nos.1 to 5, the appellant/complainant was allowed to withdraw the complaint, thus, the complaint was dismissed as withdrawn.

4. Respondents Nos.1 to 5 filed a Writ Petition No.11549/06 on 30-10-2006 challenging the orders of the learned Additional Sessions Judge, dated 28-10-2006, whereby the learned Additional Sessions Judge had passed the interim order under section 7 of the Act for handing over the disputed property to the appellant. The learned Single Bench suspended the operation of order dated 28-10-2006 on 31-10-2006.

5. Another Writ Petition No.12329 of 2006 was filed challenging order dated 31-10-2006 of the learned Additional Sessions Judge whereby the learned Additional Sessions Judge had allowed withdrawal of the complaint.

6. The learned Single Bench allowed both the writ petitions vide order dated 22-3-2007 which is impugned before us.

7. According to the impugned order, the disputed Ihata is a part of Abadi Deh which was neither sold through a registered sale deed nor the possession thereof was delivered to respondent No.2 (present appellant). The learned Additional Sessions Judge without recording any evidence or seeing record, merely perusing the parawise comments furnished by the S.H.O. directed the respondents to hand over the possession of the property to the present appellant in terms of subsection (1) of section 7 of the Illegal Dispossession Act, 2005 (to be referred hereinafter, the Act). According to section 7 of the Act, during the trial, the trial Court, as an interim relief, can direct that the owner or occupier may be put in possession. According to learned Single Bench trial commences after framing the charge. Therefore, the learned Additional Sessions Judge could not have passed order dated 28-10-2006 under section 7 of the Act without framing the charge.

8. Thus, the learned Single Bench set aside the impugned order challenged in Writ Petition No.11549 of 2006.

9. The learned Single Bench noted that after passing order under section 7(1) of the Act on application of the present appellant, the learned Additional Sessions Judge allowed withdrawal of the complaint. At this point, it may be spotlighted that Writ Petition No.12329 of 2006 was filed by the present appellant, whereas, Writ Petition No.11549 of 2006 filed by the present respondents.

10. According to the learned Single Bench, after having passed the order dated 28-10-2006 and putting the present appellant into possession, the learned Additional Sessions Judge should have decided the complaint on its merit. According to the learned Single Bench, once the court had formed an opinion that prima facie case of illegal dispossession was made out, he should have proceeded with the trial of the case to take it to its logical conclusion.

11. We agree with the learned Single Bench. Under section 7 of the Act order can be passed for a temporary relief during the pendency of the main case. If the main case was allowed to have been withdrawn, there was no justification for the interim order/relief to continue which was granted only on the basis of pendency of the main case/complaint. We also agree with the observation of the learned Single Bench orders, dated 28-10-2006 and 31-10-2006 of the learned Additional Sessions Judge prejudiced the case of the respondents of proving their right, hence they suffered for an act of the Court/Additional Sessions Judge. Even otherwise in the presence of the order the learned Single Bench dated 30-10-2006 how the learned Additional Sessions Judge could pass order dated 31-10-2006? For the reasons, noted above, this appeal is dismissed and the impugned order of the learned Single Bench dated 22-3-2007 is upheld. M.H./M-491/L Appeal dismissed.