# Jage Ram Bhati v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jage-ram-bhati-v-state-of-u-p-ors-49745
- **Pages:** 4

## Headnote

Criminal Law - Constitution of India, 1950
- Article - 227 - The Code of Criminal
Procedure, 1973 - Sections 145, 145(1),
146, 146(1), 397, 403 & 482 - Appointment
of Receiver - question of maintainability of
Revision against impugned orders passed under
section 145(1) or 146(1) which are interlocutory
orders simplicitor - in the light of judgment of a
Full bench rendered in the case of Munna
Singh's
the
revision
petition
would
be
maintainable and the impugned orders in
question cannot be termed as an interlocutory
order - hence, present writ petition is dismissed
- direction issued, for expedite disposal of
revision petition, accordingly.(Para - 7, 8, 10,
13)

Petition Dismissed. (E-11)

List of Cases cited: -

## Text

2 All. Jage Ram Bhati Vs. State of U.P. & Ors.
833

38. With regard to aforesaid question
formulated, it is relevant that Section 21 in its
explanation (i) to Section 21(1) of the Act of 1972
clearly indicates as follows:-

" S.21 - Proceedings for release of building
under occupation of tenant -

(1) .........................................

(a) ........................................;

(b) .......................................

Provided that ................

Provided further that ...................;

Provided also that ...................--

(i) .............................;

(ii) .............................;

(iii) ............................

Provided also that .........................

Explanation.--In the case of a residential
building:--

(i) where the tenant or any member of his
family who has been normally residing with or is
wholly dependent on him has built or has
otherwise acquired in a vacant state or has got
vacated after acquisition, a residential building in
the same city, municipality, notified area or town
area, no objection by the tenant against an
application under this sub-section shall be
entertained;

Note - For the purposes of this clause, a
person shall be deemed to have otherwise
acquired a building if he is occupying a public
building for residential purposes as a tenant,
allottee or licensee. "

39. In the written statement filed by
petitioner before the Prescribed Authority, in
paragraph 31, it has been specifically admitted that
defendant no.2 (petitioner no.2 herein) who is also
claiming through late Jai Narain Singh Kushwaha,
has purchased a residential accommodation in the
same city in Civil Lines, Hardoi and is the owner
in possession thereof. It has been further stated that
defendants 1 to 3 & 5, i.e. all the tenants in
common are living with him in the said
accommodation in Civil Lines, Hardoi.

40. In view of Explanation (i) to Section
21(1) of the Act of 1972, it is evident that no
objection by petitioner as tenant to the application
filed by answering opposite party-landlord was
entertainable as has been rightly held in impugned
orders.

41. Considering aforesaid, Question (b) is
also answered in negative against petitionertenant.

42. Resultantly, the petition being devoid of
merit is dismissed. The parties to bear their own
cost.

43. Learned counsel for petitioner(s) prays
for some time to hand over vacant possession of
the property in question to answering opposite
party.

44. In view of such prayer being made, it is
directed that petitioner(s) shall hand over peaceful
and vacant possession of the premises in question
to opposite party no.3-landlord within a period of
four months, i.e. by 02.06.2023 positively. In case
of failure to do so, opposite party-landlord is
granted liberty to approach this Court again by
filing an appropriate application in this petition.
----------
(2023) 2 ILRA 833
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matter Under Article 227 No. 7928 of
2022(Criminal)

Jage Ram Bhati ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Kamlesh Kumar Dwivedi

Counsel for the Respondents:
G.A., Sri Dharmendra Dhar Dubey, Sri R.P.
Pandey

Criminal Law - Constitution of India, 1950
- Article - 227 - The Code of Criminal
Procedure, 1973 - Sections 145, 145(1),
146, 146(1), 397, 403 & 482 - Appointment
of Receiver - question of maintainability of
Revision against impugned orders passed under
section 145(1) or 146(1) which are interlocutory
orders simplicitor - in the light of judgment of a
Full bench rendered in the case of Munna
Singh's
the
revision
petition
would
be
maintainable and the impugned orders in
question cannot be termed as an interlocutory
order - hence, present writ petition is dismissed
- direction issued, for expedite disposal of
revision petition, accordingly.(Para - 7, 8, 10,
13)

Petition Dismissed. (E-11)

List of Cases cited: -

1. Munna Singh @ Shivaji Singh & ors. Vs St.of
UP & anr. (2011 (3) JIC 628 (All) FB),

2. Indramohan Gautam Vs St. of UP & ors.
(2018 1 ADJ 550),

3. Ashok Kumar Vs St. of Uttrakhand & ors.
(Criminal Appeal No. 2038/2012 arising out of
SLP No. 3932 of 2012.

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

1. Heard learned counsel for the
petitioner and Sri Dharmendra Dhar Dubey,
learned counsel for the respondent and Sri
R.P. Pandey assisted by Manoj Mishra,
learned AGA for the State.

2. Present petition under Article 227
of the Constitution of India is filed by the
petitioner against the impugned order dated
30.8.2022 passed by learned Additional
Sessions Judge, court no. 2, Ghaziabad in
Application 30-kh dated 17.8.2022 filed by
the petitioner in Criminal Revision no. 387
of 2022 (Raj Bhati vs. Jage Ram Bhati and
another) under Section 146(1) Cr.P.C., P.S.
Loni Border, District Ghaziabad. By the
impugned
order
learned
Additional
Sessions Judge has rejected the application
30-kh moved by opposite party no. 1, who
is
petitioner
before
this
Court,
in
application 30-kh and opposite party before
the Revisional court had challenged the
maintainability
of
revision
preferred
against the impugned order dated 20.7.2022
passed by learned Magistrate under Section
146 Cr.P.C., while rejecting the application
30-kh
learned
Revisional
court
has
observed that question of maintainability of
revision would be decided with the revision
petition.
Feeling
aggrieved
by
the
impugned order passed by Revisional court
present petition is filed wherein main
ground has been taken that the impugned
order is illegal and contrary to the law, as
question of maintainability of revision may
not be decided at the time of disposal of
revision and Revisional court is bound to
decide the same at the preliminary stage.

3. In application 30-kh, applicant,
who is petitioner before this court, has
stated that impugned order passed by
learned Executive Magistrate on 20.7.2022
in the case under Section 146 Cr.P.C. was
an interlocutory order against which
revision is not maintainable.

4. Learned counsel for the petitioner
submits that learned Executive Magistrate
has passed the order under Section 145
Cr.P.C. on 24.11.2020 in which a finding
was recorded that there was sufficient
ground to proceed in the case under Section
145 Cr.P.C. where dispute of a house lying
in an agricultural plot was involved
2 All. Jage Ram Bhati Vs. State of U.P. & Ors.
835
between the parties and the parties were
directed to appear before the court
alongwith
their
respective
evidence/
clarification. Subsequently, case u/s 145
Cr.P.C. was decided vide order dated
20.7.2022 under Section 146(1) Cr.P.C.
wherein learned Magistrate has passed an
order for attachment of the disputed
property in exercise of power vested to him
u/s 146(1) Cr.P.C. and SHO, concerned,
was directed to appoint a receiver, who will
take the property in his custody and keep it
under attachment until any party moves
regarding ownership or possession with
respect to property in question.

5. Learned counsel for the petitioner
cited Full Bench judgement of this Court in
the case of Munna Singh @ Shivaji Singh
and others vs. State of U.P. and another,
reported in 2011 (3) JIC 628 (All) (FB) as
well as subsequent judgement of Single
Bench of this Court in the case of
Indramohan Gautam vs. State of U.P.
and others reported in (2018) 1 ADJ 550.

6. Per contra, learned counsel for the
respondents
submits
that
petition
is
misconceived and as per law of this Court
in the said Full Bench decision, impugned
order against which revision is filed by the
respondent before the court of Session
Judge, cannot be held as an interlocutory
order and revision is maintainable against
the impugned order passed under Section
146(1) Cr.P.C. Learned counsel has cited
judgement of Hon'ble Apex court in Ashok
Kumar vs. State of Uttrakhand and
others decided in Criminal Appeal No.
2038 of 2012 arising out of SLP No. 3932
of 20212.

7. I have gone through the various
judgements of this Court cited by learned
counsel for the petitioner and perused the
material on record. This Court has held in
the Full Bench judgement in Munna Singh
(supra) the question was referred "where
the orders passed by the Magistrate under
Section
145(1)
of
the
Code
are
interlocutory order simplicitor and no
revision petition under Section 397 or 403
of the Code or petition under Section 482
of the Code is maintainable against the
same".

8. The reference was answered in
para-41 of the judgement of Full Bench,
wherein, it is held "our answer to the
question referred would be therefore in the
negative and we hold that orders passed
under Section 145(1) and 146(1) of the
Code are not in every circumstance, orders
simplicitor, and therefore a revision would
be maintainable in the light of observations
made in this judgement depending on the
facts involved in each case.

9. Above precedent of Full Bench was
relied upon by Single Judge of this Court in
Indramohan Gautam vs. State of U.P.
and another reported in (2018) 1 ADJ
550 wherein this Court observed in para 6
and 7 as under:

It is settled principle of law that title of
a property may only be decided by the
competent Civil Courts and under the
provisions of Sections 145 and 146 Cr.P.C.,
the Executive Magistrate may take action
in respect of a dispute only about actual
possession over the property, where there is
apprehension breach of peace due to above
dispute. Prior to 2011 in a number of cases,
it was held that an order of attachment
under Section 146(1) Cr.P.C. is an
interlocutory order against which revision
is not maintainable under the provisions of
Section 397 Cr.P.C. However, in due course
of time, the matter of maintainability of
836 INDIAN LAW REPORTS ALLAHABAD SERIES
revision was referred to full Bench and the
full Bench of this Court in the case of
Munna Singh @ Shivji Singh and others Vs.
State of U.P. 2011 (9) ADJ 1998 held that

"An order of attachment under Section
146(1) Cr.P.C. is an order of movement
which has effect on the right of party in
possession-cannot therefore, be said to be
mere interlocutory order so as to bar
revisional jurisdiction of High Court.

Invoking of the emergency powers
under Section 146(1) Cr.P.C. is dependent
on satisfaction of Magistrate-When none of
parties are in possession, or Magistrate is
unable to decide as to which of the parties
was in possession, exercise of emergency
power can be resorted to.

Where rights of parties affected, that is
not an interlocutory order of attachment
and depends upon facts of each particular
case.

Order under Sections 145(1) & 146(1)
Cr.P.C. are not in every circumstance,
orders simplicitor- therefore a revision
would be maintainable depending on facts
involved in each case."

In view of the law laid down by the full
Bench of this Court, the contention of
learned A.G.A that impugned order is an
interlocutory order and revision against the
same is not maintainable may not be
accepted and the revision may not be
dismissed as not maintainable. In view of
above case law by Full Bench, the
judgment passed in the case of Yaqub Ali
(supra) by a single judge of Rajasthan High
Court has no force.

10. Considering the submissions of
learned counsel for the parties and on
perusal of materials available on record
including impugned judgement and order
of learned Magistrate, this Court is of the
opinion that learned Sessions Judge had
committed no illegality or infirmity while
passing
the
impugned
order
dated
30.8.2022 and judgement of learned
Magistrate dated 20.7.2022 against which
revision
was
preferred
by
present
respondent no. 3, cannot be termed as an
interlocutory order in the light of the
judgement of this Court cited as above.

11. The petition is devoid of merits
and is liable to be dismissed.

12. The writ petition is dismissed
accordingly.

13. The Revisional court is directed to
decide the revision petition expeditiously in
accordance with law after giving due
opportunity of hearing to the parties.
----------
(2023) 2 ILRA 836
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matter Under Article 227 No. 11711 of
2022(Civil)

Smt. Rashida Begum & Ors. ...Petitioners
Versus
Arshad Hussain & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh Chandra Shukla, Sri Jitendra Pratap
Shahi

Counsel for the Respondents:
Sri Namit Srivastava, Sri Kshitij Shailendra

Civil Law - Constitution of India, 1950 -
Article
- 227,
- The Code of Civil
Procedure, 1908 - Section - 47 - Order
XXI - Rule 15, 16 - Suit for Specific
performance - appeal - second appeal -
Execution of decree - - during appellate stage a
substitution application to substitute the legal