# Bakar Ali Khan & Ors v. State Of U.P. & Anr

- **Citation:** (2023) 6 ILRA 716
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Matters Under Article 227 No. 9954 of 2022
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bakar-ali-khan-ors-v-state-of-u-p-anr-50348
- **Pages:** 7

## Headnote

(A) Constitution of India - Article 227 -
The Code of Criminal Procedure, 1973 -
Section 145 - procedure where dispute
concerning land or water is likely to cause
breach of peace , Section 146 - Power to
attach subject of dispute and to appoint
reciever - Once the Civil Court is seized of
the matter, it goes without saying that the
proceedings
under
Section
145/146
Cr.P.C. cannot proceed and must come to
an end - In a proceeding under Section
145/146 Cr.P.C., Executive Magistrate is
not empowered to decide the question of
title and legality of possession claimed by
any
other
parties
-
parties'
rights
regarding
title
or
possession
are
eventually determined by the Civil Court.
(Para - 9,11)

Both sides filed civil suits - for cancellation of
sale deed/injunction - where question of right,
title or interest of party are to be attached - on
basis of evidence adduced by parties -
Magistrate passed an injunction order against
petitioners - who were first party in the dispute
- not issued any attachment order with regard
to property in dispute.(Para - 11)
6 All. Bakar Ali Khan & Ors. Vs. State of U.P. & Anr.
717
HELD:-Magistrate has not issued an attachment
order for property in dispute, but instead passed
an injunction against the second party. Order is
beyond the powers of the Executive Magistrate
under Section 145/146 Cr.P.C., making it
unsustainable and deserved to be set aside.

 Parties are directed to maintain status quo
for three months to access remedies before the
Civil Court, preserving property in dispute and
allowing for further action.(Para -11, 13)

Petition allowed. (E-7)

List of Cases cited:

Mohd. Abid Vs Ravi Naresh, SLP (Crl.)
No(s).5444/2022

## Text

716 INDIAN LAW REPORTS ALLAHABAD SERIES

 Case :- WRIT - C No. - 66886 of
2006

Petitioner :- Vijay Pal Singh

Respondent :- State Of U.P. Thru
Principal Secry. Indus. Devlp. And Ors.

Counsel
for
Petitioner
:-
A.D.
Saunders,
,Akhilesh
Tripathi,Anoop
Trivedi,S.P.S. Rajput,Shilpa Ahuja

Counsel
for
Respondent
:-
C.S.C.,Anuj
Srivastava,Siddharth
Varma,Siddharth Verma,Varad Nath

Hon'ble Salil Kumar Rai, J.

Hon'ble Arun Kumar Singh Deshwal,J.

Order on amendment application

1. Present amendment application has
been filed to include the prayer challenging
the notification dated 16.06.1976 under
Section 4/17(1)(4) as well as notification
dated 17.06.1976 under Section 6/17(1)(4)
of Land Acquisition Act, 1894.

2. As the prayer, the petitioner wants
to include quashing the notification is
highly belated i.e. after 24 years. Hon'ble
Supreme Court in the cases (i) 2010(4)
SCC 532 (Sawaran Lata and others vs
State of Haryana and others); (ii)
MANU/SC/0795/2008 (Swaika Properties
Pvt. Ltd. and others vs State of Rajsthan
and (iii) AIR 2011 SC 3558 (A.P.
Industrial Infrastructure Corporation
Ltd. Vs Chinthamaneni Narasimha Rao
and Ors) and (iv) AIR 1974 SC 2077
(Aflatoon and others vs. Lt. Governor of
Delhi and other) clearly held that the
acquisition notification cannot be quashed
after considerable delay of many years.
Therefore, the prayer for quashing the
notifications which the petitioner wants to
add by impleadment application is serious
barred
by
laches,
therefore,
present
amendment application is rejected.
----------

(2023) 6 ILRA 716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matters Under Article 227 No. 9954 of 2022

Bakar Ali Khan & Ors. ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Arvind Srivastava III

Counsel for the Respondents:
G.A., Sri Brijesh Kumar Yadav

(A) Constitution of India - Article 227 -
The Code of Criminal Procedure, 1973 -
Section 145 - procedure where dispute
concerning land or water is likely to cause
breach of peace , Section 146 - Power to
attach subject of dispute and to appoint
reciever - Once the Civil Court is seized of
the matter, it goes without saying that the
proceedings
under
Section
145/146
Cr.P.C. cannot proceed and must come to
an end - In a proceeding under Section
145/146 Cr.P.C., Executive Magistrate is
not empowered to decide the question of
title and legality of possession claimed by
any
other
parties
-
parties'
rights
regarding
title
or
possession
are
eventually determined by the Civil Court.
(Para - 9,11)

Both sides filed civil suits - for cancellation of
sale deed/injunction - where question of right,
title or interest of party are to be attached - on
basis of evidence adduced by parties -
Magistrate passed an injunction order against
petitioners - who were first party in the dispute
- not issued any attachment order with regard
to property in dispute.(Para - 11)
6 All. Bakar Ali Khan & Ors. Vs. State of U.P. & Anr.
717
HELD:-Magistrate has not issued an attachment
order for property in dispute, but instead passed
an injunction against the second party. Order is
beyond the powers of the Executive Magistrate
under Section 145/146 Cr.P.C., making it
unsustainable and deserved to be set aside.

 Parties are directed to maintain status quo
for three months to access remedies before the
Civil Court, preserving property in dispute and
allowing for further action.(Para -11, 13)

Petition allowed. (E-7)

List of Cases cited:

Mohd. Abid Vs Ravi Naresh, SLP (Crl.)
No(s).5444/2022

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
petitioners,
learned
counsel
for
the
respondents, learned AGA for the State and
perused the material placed on record.

2. Present petition under Article 227
of Constitution of India has been filed by
the petitioner challenging the order dated
6.10.2022 passed by the Additional Session
Jduge (Fast Track Court- II), Rampur in
Criminal Revision No.78 of 2022 as well as
the order dated 28.2.2022 passed by Sub
Divisional Magistrate, Rampur in Case
No.23 of 2022, under Section 145 of
Cr.P.C. Vide order dated 6.10.2022, the
order dated 28.2.2022, passed by Sub
Divisional Magistrate, Rampur has been
affirmed and the criminal revision filed by
the present petitioners has been dismissed.

3. The factual matrix of the case
relevant for the purpose of present petition
are that the proceeding under Section 145
Cr.P.C. began before the Court of Up Zila
Magistrate, Tehsil Sadar, Rampur on report
of Tehsildar Sadar dated 3.1.2022, in which
it was informed that a fact finding inquiry
was conducted regarding Khatauni/Khata
No.10 and 11 situated at Village Madaiyan
Nadar Bagh, Tehsil Sadar. According to the
order of then S.D.M. Dated 4.3.1975, the
land measuring of 13 bigha, situatted at
Village Madaiya, Nadar Bagh, which is a
part of Khevat No.6 was divided among the
heirs of Late Ashraf Ali Khan, in which his
sons namely Ishrat Ali Khan, Afsar Ali
Khan and Murshad Ali Khan have got
11193 sq. yards each and daughter Akhtari
Begum got 5596.5 sq. yards land. Afsar Ali
Khan and Murshad Ali Khan executed total
4 sale deed of their share of land measuring
13140 sq. yards on different dates. Afsar
Ali Khan sold entire 11193 sq. yards,
which was obtained by him through
succession in favour of different persons
and through different sale deeds and
therefore, no share of him remain in
Khatauni/Khata Nos.10 and 11. Other heirs
of Asharaf Ali Khan also sold lands coming
to their share in favour of different persons.
As Afsar Ali Khan had already sold 11193
sq. yards land, which came to his share
after death of his father, his sons had no
right to execute sale deed dated 24.1.2020
in regard to plot Nos. 178-179 in favour of
Parvej Akhtar Khan, son of Qamar Akhtar
Khan by projecting the land through
boundary. The land sold to Parvej Akhtar
was mutated in the name of purchaser
Parvej Akhtar Khan but a restoration
application was filed by the applicant
Mohd.
Suleman
Siddiqui
(present
respondent No.2) and mutation application
was restored and the matter of mutation
still pending before Tehsildar. The disputed
plot was lying vacant, on which Bakar Ali
Khan as well as Parvej Akhtar Khan were
trying to raise construction with a view to
grab the land on 14.12.2021. They also
constructed a gate and partial boundary,
which was stopped by Tehsildar Sadar on
718 INDIAN LAW REPORTS ALLAHABAD SERIES
visiting the spot. He also stated that there is
apprehension of breach of peace on the
spot. The case was registered and notice
was issued to opposite party (Bakar Ali
Khan and others) but they failed to appear
and did not filed any objection. The
disputed land was initially in the nature of
groove but in course of time, it converted
into abadi and several commercial and
residential buildings were constructed on
said plot. The case of first party Suleman
Siddiqui was that he has acquired the
disputed plot by a registered gift deed
executed from his real 'bua' Smt. Sageera
Yusuf on 3.9.2017, who had purchased this
plot through registered sale deed dated
24.7.2009
from
Mukarram
Hussain
Siddiqui. The case of the first party was
that he was continuing in possession of said
land from the date of prilimanary order
under Section 145 Cr.P.C. and prior to two
months therefrom. The colored map was
also prepared wherein when the entire 13
bigha land was partitioned amonst the heirs
of Asharf Ali Khan. The portion of land
allotted to each of the heirs of Ashraf Ali
Khan was demarcated in colored map. A
copy thereof was filed by the first party
before the court of Up Zila Magistrate.
Ishrat Ali Khan, one of the heirs of original
owner Ashraf Ali Khan, had sold a portion
of his share of land through two registered
sale deeds in favour of 21 persons, who had
partitioned purchased land by giving a
pathway amonst them, on which 12 shops
connected
with
Rahe
Murtaza
were
constructed and sold to 12 purchasers
through sale deed dated 28.7.1983, total
area of 12 shops consisted of 2 biswa, 10
biswansi by earmarking the same through
boundary marks. Ishrat Ali Khan also sold
the land i.e. 1 bigha, 17 biswa, 11 biswansi
land lying behind 12 shops to 21 persons
through two sale deeds dated 28.7.1983
covering 4 biswa, 605 sq. yards land and
the
purchasers
had
constructed
their
respective houses thereon. The case of first
party Suleman Siddiqui was that his name
has been mutated in revenue records on the
basis of gift deed dated 13.9.2017 executed
by his Bua Smt. Sageera Yusuf whereas
mutation order passed in favour of Bakar
Ali Khan and others has been cancelled
vide order dated 25.1.2022 passed by the
Tehsildar Sadar and they are no longer
recorded tenure holder in Khatauni. Bakar
Ali Khan had executed a sham sale deed in
favour of Parvej Akhtar on 20/24.1.2020
taking benefit of his name lying in
Khatauni. As no land was lying in his
name, the boundary shown in the sale deed
was of no value. A mutation order passed
in favour of Parvej Akhtar on the basis of
said sale deed vide order dated 13.12.2021.
The first party has also filed a civil Suit
No.404 of 2020 (Mohd. Suleman Siddiqui
vs.
Parvej
Akhtar
and
others),
for
cancellation of sale deed, which is pending
in the court of Civil Judge (J.D.), Ramgarh.
The opposite party Bakar Ali Khan and
others did not appeared in proceedings
before Up Zila Adhikari. Parvej Akhtar
appeared but he did not file objection and
Bakar Ali Khan and others did not appear
in spite of fact that service/process was
held to be sufficient on therm. After
hearing submissions of first party and on
the basis of record, the Up Zila Magistrate
vide order dated 28.2.2022 directed the
second party Bakar Ali Khan and Parvej
Akhtar Khan and others were directed to
refrain from interfering in possession of
disputed land lying in possession of first
party and a copy of the order was sent to
S.H.O.
and
Tehsildar
concerned
for
necessary action.

4. A criminal revision was preferred
against
impugned
order
by
present
petitioners,
which
was
dismissed
by
6 All. Bakar Ali Khan & Ors. Vs. State of U.P. & Anr.
719
learned Sessions Judge vide impugned
order dated 6.10.2022 passed in Criminal
Revision No.78 of 2022. The criminal
revision was dismissed by the impugned
order and order of Up Zila Magistrate was
affirmed.
Learned
Revisional
Court
observed that dispute was with regard to
one shop measuring 24 sq. yards land only.

5. Feeling aggrieved by the impugned
orders passed by the courts below, the
opposite party Bakar Ali Khan and others
filed present petition, in which they have
stated that they are co-sharers in plot
Nos.169, 170, 171, 173, 177, 178, 180,
167, 172, 179 situated at Village Madaiyan
Nagar Bagh, Tehsil Sadar, District Rampur
and are still in possession on said plots. The
petitioners admitted the fact that the
property in question, in its entirety initially
belonged to Ashraf Ali Khan and after his
death, it devolved on his three sons and one
daughter namely Akhtari Begum. The
petitioners are heirs of Afsar Ali Khan.
They are in possession of their respective
share in the property left by their father
Afsar Ali Khan. The impugned order
passed by SDM is an ex-parte order and in
fact no notice was served on them. The
petitioners had executed a sale deed dated
24.1.2020, area 24 sq. yards in favour of
the respondent No.3 and his name has also
been mutated alongwith petitioners. Sub
Divisional Magistrate dealt with the case as
he decided the issue of tile among the
contesting parties, whereas he was not
empowered for the same. Several disputes
are pending before the courts regarding the
property, out of which one case is pending
before the Civil Judge (J.D.), Rampur,
being Original Suit No.547 of 2021, filed
by one Naim Akhtar and another against
petitioners for cancellation of sale deed and
permanent injunction. The subject matter of
dispute is also relating to same land. The
petitioners have also filed civil suit in the
court of Civil Judge (Senior Division),
Rampur as O.S. No.344 of 2020 against
respondent Nos.2 and others for permanent
injunction. Respondent No.2 has also filed
a Civil Suit for cancellation of sale deed
dated 20.1.2020 executed by the petitioners
in favour of the respondent No.3 bearing
Case No.404 of 2020. All the suits are
pending in different civil courts at Rampur
District Judgeship. As the civil litigations
pending between the parties is still going
on, the proceedings under Section 145
Cr.P.C.
are
not
maintainable.
The
impugned order dated 28.2.2022 passed by
learned Magistrate is an ex-parte order.
Notice was not duly served on petitioners.

6. Learned counsel for the petitioners
placed reliance on pleadings made in
present writ petition. He submitted that the
impugned order passed by both courts
below are absolutely illegal and perverse as
firstly no police report was called for by
SDM to ascertain the genuineness of
breach of peace between the parties over
the land in question. The SDM committed
legal error while passing impugned order
inasmuch as he had no authority in law in
proceeding under Section 145/146 Cr.P.C.
to adjudicate on the right and title of the
parties. He could only look into the
apprehension of breach of peace as well as
possession over the land in dispute within
two months next before the date on which
the report of the police officers or on any
other information was received by the
Magistrate. He could not act as a civil court
as in proceeding under Section 145/146
Cr.P.C. He lasly submitted that learned
courts below have failed to consider this
aspect of the matter that respondent No.2
had only 24 sq. yards of land but not on the
land of petitioners. Respondent No.4 is not
a recorded tenure holder inasmuch as his
720 INDIAN LAW REPORTS ALLAHABAD SERIES
name was never recorded in revenue
record. Learned revisional court failed to
examine the correctness and legality of the
order passed by the learned Up Zila
Magistrate, merely because somebody is
claiming possession over land in dispute,
no presumption of apprehension of breach
of
peace
can
be
made.
Complainant/respondent
No.2
is
not
recorded tenure holder of the disputed
property,
Sub
Divisional
Magistrate
committed error while presuming his
possession over disputed property. No
independent evidence was taken by learned
Magistrate
to
determine
question
of
possession on disputed land. The order of
S.D.M. was initially stayed by Session
Court vide order dated 21.5.2022, passed in
Criminal Revision No.78 of 2022.

7. Learned counsel for the petitioners
cited a judgement of Hon'ble Apex Court in
Ranveer Singh vs. Dalbir Singh, 2002
Cr.L.J. 2017, wherein the Apex Court
considered the legality of order of High
Court of Delhi in Criminal Revision
No.540 of 2000 dated 16.7.2001 whereby
the order of Executive Magistrate under
Section 146(1) was set aside. Hon'ble Apex
Court observed that the Court, while
dealing with a proceeding under Section
145 Cr.P.C., is mainly concerned with
possession of the property in dispute on the
date
of
the
preliminary
order
and
dispossession, if any, within two months
prior to that date; the Court is not required
to decide either title to the property or right
of possession of the same. The question for
determination before the High Court in the
present case was one relating to the validity
or otherwise of the preliminary order
passed by the learned Sub-Divisional
Magistrate under Section 145(1) Cr.P.C.
and
sustainability
of
the
order
of
attachment passed under Section 146(1)
Cr.P.C. For deciding the questions it was
neither necessary nor relevant for the High
Court to have considered the matters
relating to title to and right of possession of
the property. Further, both the parties in the
case have filed suits seeking decree of
permanent injunction against each other
and in the suit filed by the appellant an
order of interim injunction has been passed
and an objection petition has been filed by
respondent no.1. The suits and the interim
order are pending further consideration
before the civil court.

8. Learned counsel appearing on
behalf of the respondent Nos.2 and 3 laid
emphasis
on
impugned
orders
and
submitted that the impugned orders passed
by the courts below are very elaborate and
reasoned orders which are based on
material
placed
on
record
and
no
interference is warranted in impugned
orders.

9. In the present case, on perusal of
final impugned order passed by learned Up
Zila Magistrate under Section 145 Cr.P.C.,
it appears that he has not given any finding
therein regarding apprehension of breach of
peace regarding disputed land. He has only
placed reliance on the report of Tehsildar,
who apprehended breach of peace in his
inquiry report submitted to Zila Magistrate.
He has also not given specific finding
regarding possession of any party to the
case
and
gave
a
finding
regarding
possession of respondent No.2 Mohd.
Suleman Siddiqui on disputed land in
operative order of the Court. In a
proceeding under Section 145/146 Cr.P.C.,
Executive Magistrate is not empowered to
decide the question of title and legality of
possession claimed by any other parties. In
such
proceedings,
the
Magistrate
is
concerned only with the actual physical
6 All. Bakar Ali Khan & Ors. Vs. State of U.P. & Anr.
721
possession. If he is unable to satisfy
himself as to which of the parties was in
such possession or if he decides that none
of the parties was in such possession, or if
there is an emergency, it is open to him to
attach the subject matter of dispute. An
order of attachment if made without one or
other of these findings, is not sustainable.
In present case, the Magistrate has not
given a finding while passing the impugned
order that the case is one of emergency.

10. Civil Suit No.404 of 2020 had
filed by the present respondent No.2 Mohd.
Suleman Siddiqui against respondent No.3-
Parvej Akhtar, who has purchased the
disputed property from petitioners for
cancellation of sale deed and injunction
before the Civil Court. Another O.S.
No.344 of 2020 has been filed by the
present petitioners against respondent No.2
and
others
for
permanent
injunction
relating to disputed land. A suit for
cancellation of sale deed and permanent
injunction is also pending as O.S. No.547
of 2021 between one Naim Akhtar and
another
vs.
present
petitioners
for
cancellation of sale deed as well as for
permanent injunction, for which right, title
and interest of the party regarding disputed
property is to be decided by the competent
court, as envisaged under Sub Section (1)
of Section 146 Cr.P.C. In O.S. No.344 of
2020, present petitioners have prayed for
permanent injunction against respondent
No.2, who are present respondent No.2 and
others, with regard to 4895.65 sq. yards
land, which they claimed to have acquired
from their father through succession
whereas the case of present respondent
No.2 is that their father had already sold his
entire 1/3rd share of groove land acquired
through inheritance from his father and
nothing remained with present petitioners,
which they could transfer to any person. In
Civil Suit No.344 of 2020, present
respondent No.2 had sought relief of
cancellation of sale deed and permanent
injunction with regard to the land which
they claimed to have acquired through
registered gift deed dated 13.9.2017 from
his Bua Smt. Sageera Yusuf. In this suit the
main dispute with regard to plot and
question of having area 0.278 hectare,
0.147 hectare, 0.425 hectare, which are
equivalent to 5082.95 sq. yards, which is
demarcated by boundary marks. In this suit
the
sale
deed
executed
by
present
petitioners in faovur of the respondent No.3
has been challenged on the ground that the
vendors were not owner in possession of
this property. In operative portion of the
impugned
order,
learned
Up
Zila
Magistrate has observed that the first party
Mohd. Suleman Siddiqui was in possession
of the disputed property but he has not
referred to any evidence on the basis of
which he has reached this finding except
the report of Tehsildar, on which the
proceeding under Section 145 Cr.P.C. were
initiated. He has not referred any evidence
or police investigation report with regard to
finding that there was apprehension of
breach of peace on the spot, which required
initiation of proceeding under Section
145/146 Cr.P.C. In proceeding under
Section
145
Cr.P.C.,
the
Executive
Magistrate may treat a party in possession
who has been wrongfully dispossessed
within two months next before the date on
which the report of a police officer or other
information
was
received
by
the
Magistrate, or after that date and before the
date of his order under sub- section (1) of
Section
145
Cr.P.C.,
where
dispute
concerning land or water is likely to cause
breach of peace. Under Section 146
Cr.P.C., the Magistrate at any time after
making the order under sub- section (1) of
section 145 considers the case to be one of
722 INDIAN LAW REPORTS ALLAHABAD SERIES
emergency, or if he decides that none of the
parties was then in such possession as is
referred to in section 145, or if he is unable
to satisfy himself as to which of them was
then in such possession of the subject of
dispute, he may attach the subject of
dispute until a competent Court has
determined the rights of the parties thereto
with regard to the person entitled to the
possession thereof: Provided that such
Magistrate may withdraw the attachment at
any time if he is satisfied that there is no
longer any likelihood of breach of the
peace with regard to the subject of dispute.

11. In present case, the Magistrate has
not issued any attachment order with regard
to property in dispute instead he has passed
an injunction order in favour of the first
party against second party, who are
petitioners before this Court and such type
of order is beyond purview of the powers
exercisable by Executive Magistrate in
proceeding under Section 145/146 Cr.P.C.
and therefore, the impugned order is not
sustainable under law and deserves to be
set aside, on this ground also. In a recent
Judgement in the case of Mohd. Abid vs
Ravi Naresh, arising out of Special Leave
to Appeal (Crl.) No(s).5444/2022, Hon'ble
Apex
Court
vide
judgement
dated
1.11.2022 held that it was an admitted fact
that the petitioners have already filed a suit
for injunction in which ex-parte ad- interim
injunction has been granted by the Civil
Court,
Faizabad,
Uttar
Pradesh
on
05.12.2020. Once the Civil Court is seized
of the matter, it goes without saying that
the proceedings under Section 145/146
Cr.P.C. cannot proceed and must come to
an end. The inter- se rights of the parties
regarding title or possession are eventually
to be determined by the Civil Court. In
present case also, according to the
pleadings of the parties, both sides have
filed civil suits for cancellation of sale
deed/injunction before civil court where the
question of right, title or interest of the
party are to be attached on the basis of
evidence adduced by the parties. Therefore,
the impugned order dated 28.2.2022 passed
by learned Up Zila Magistrate is not found
within the four corners of the law and
consequently it is set aside. Consequently,
the impugned order dated 6.10.2022 passed
by Revisional Court affirming order of
Magistrate is also set aside.

12. Accordingly, the petition stands
allowed.

13. The parties are relegated to avail
their remedies available before Civil Court,
in respect of their respective suits filed by
them. With a view to preserve the property
in dispute to enable the parties to avail the
remedy before the civil court, the parties
are directed to maintain status quo of the
disputed party for a period of three months
from today, which will automatically
stands vacated, thereafter.
----------
(2023) 6 ILRA 722
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 30.05.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 267 of 1983

Karuna Shanker & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajesh Tiwari

Counsel for the Opposite Party: