CRM-M- 2270 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM-M- 2270 of 2009 Date of Decision: 15.9.2009 Bandeep Rekhi ..Petitioner. Vs. UT Chandigarh and another ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Rajnish Narula, Advocate for the petitioner. Mr.P.K.Khindiria, Advocate for UT Chandigarh. Mr.Puneet Bali, Advocate for respondent No.2. RAKESH KUMAR JAIN, J. This is a petition under Section 439(2) of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.') for cancellation of order of bail granted under Section 438 Cr.P.C. vide order dated 30.5.2008 by Additional Sessions Judge, Chandigarh in case FIR No.297 dated 17.5.2008 registered under Sections 452/380/201 IPC at Police Station Sector 17, Chandigarh. Initially, the aforesaid petition was filed with FIR (Annexure P- 1) and impugned order (Annexure P-2) in which notice of motion was issued for 11.2.2009. But later on, the petitioner filed CRM No.7212 of 2009 in order to place on record documents (Annexures P-3 to P-11). The said application was allowed on 11.2.2009. The respondent No.2 also filed reply along with some documents, which was taken on record vide order dated 5.3.2009. As per the averments made in the petition, the petitioner is co- CRM-M- 2270 of 2009 -2- owner of SCO No.129-130, Sector 17, Chandigarh to the extent of 10% in view of a family settlement dated 6.5.2004 and that share pertains to the basement portion of the aforesaid premises. The said basement portion was given on rent by the father of the petitioner to M/s Juneja Trading Agency vide rent agreement dated 28.6.1979. It is alleged that Naresh Kumar Juneja, partner of M/s Juneja Trading Agency and brother of Ajay Kumar Juneja (respondent No.2) was occupying 600 sq.feet area in the basement of the premises in dispute by virtue of family settlement, entered into between the the family of respondent No.2. On 7.12.2007, Naresh Kumar Juneja handed over possession of 600 sq.feet area of the basement to the petitioner who put his own lock on the said portion on 7.12.2007 and on 9.12.2007, the petitioner kept his goods in the said premises and again locked the door. According to the petitioner, the lock of the door of the premises in possession of the petitioner in the basement was broken by respondent No.2. The petitioner made a complaint to the SSP Chandigarh on the basis of which an enquiry was conducted on 14.1.2008 in which it was reported that door lock was cut out from the main door and the material lying in the premises was taken away. As no FIR was registered by the police, therefore, the petitioner was constrained to file a complaint under Section 156(3) of the Cr.P.C. in which directions were issued by the competent Court to respondent No.1 to investigate the matter. Eventually, FIR No.297 dated 17.5.2008 under Sections 452/380/201 IPC was registered against Ajay Kumar Juneja (respondent No.2). Apprehending his arrest, Ajay Kumar Juneja (respondent No.2) had filed an application under Section 438 Cr.P.C. before the Court below which was allowed by Additional Sessions Judge, Chandigarh vide order dated 30.5.2008. CRM-M- 2270 of 2009 -3- The grievance of the petitioner in this case is that at the time of granting anticipatory bail, the learned Court below had ignored the first enquiry report conducted on 14.1.2008 and had also not recovered stolen articles from respondent No.2. In the reply, respondent No.2 has alleged that SCO No.129- 130, Sector 17, Chandigarh was taken on rent by M/s Juneja Trading Agency, Sector 17, Chandigarh from its owner Amrit Pal Singh vide agreement dated 28.6.1979. The said agreement was extended and rent was enhanced to Rs.2400/- per month. M/s Juneja Trading Agency was reconstituted after Naresh Kumar Juneja i.e. elder brother of respondent No.2 retired from business in the year 1988. A family settlement took place on 21.10.2008 as per which out of total area of 2400 square feet of the basement of the said premises, an area of 600 sq. feet was given to Naresh Kumar Juneja and balance area of 1800 square feet remained with Des Raj Juneja and respondent No.2. In the year 1998 M/s Juneja Trading Agency was converted into Juneja Trading Agencies Pvt. Ltd. In the year 2003, a family dispute arose between Juneja Family and respondent No.2 and since then they are in litigation. It is also alleged that the petitioner claiming himself to be the co-owner of the premises in question on the basis of family settlement dated 6.9.2005, filed a petition under Section 13 of The East Punjab Urban Rent Restriction Act seeking eviction of the agency from the demised premises. The said Naresh Kumar Juneja, though was arrayed as respondent in the eviction petition yet he has nothing to do with the tenancy as M/s Juneja Trading Agencies Pvt. Ltd. was paying full rent of the said basement and at no occasion Naresh Kumar Juneja had ever paid any rent in respect of the basement. Naresh Kumar Juneja who was having dispute with CRM-M- 2270 of 2009 -4- respondent No.2, in order to harass him, filed an affidavit dated 7.12.2007 before Rent Controller, Chandigarh stating therein that he had handed over vacant possession of 600 square feet area from basement to the petitioner. Since Naresh Kumar Juneja and the petitioner were hands in gloves therefore, respondent No.2 had to file a civil suit bearing No.232/2000 as a director of M/s Juneja Trading Agencies Pvt. Ltd. seeking permanent injunction, restraining the petitioner from taking possession of 600 sq. feet area in the basement of the premises in question. It was specifically averred in the civil suit that Naresh Kumar Juneja, even if presumed to be in possession of 600 sq. feet of the basement premises, the possession had to revert back to the tenant i.e. M/s Juneja Trading Agency and could not have been surrendered to the landlord in view of Clause 19. It is also alleged that in the suit following order was passed on 12.12.2007: “Present : Counsel for the plaintiff. Suit received by entrustment. Court fee is reported to be correct. Suit be registered. Notice of the suit be given to the defendants for 19.12.2007. Dasti summons may be taken. Along with the suit, an application u/o 39, Rules 1 and 2 CPC has also been filed praying for restraining defendant No.1 from taking the possession of 600 Sq. ft. area in the basement of SCO No.129-130, Sector 17 C, Chandigarh on the basis of documents dated 7.12.2007 executed by defendant No.2 and further prayer to restrain respondents from interfering in the peaceful use and occupation of that premises and to restrain defendant No.2 from proclaiming himself to be the director/promoter/shareholder of M/s Juneja Trading Agencies Pvt. Ltd. This application of the plaintiff is supported with an affidavit and documents. In view of the pleadings of the plaintiffs and the documents placed on file by him, prima facie it has come on CRM-M- 2270 of 2009 -5- record that plaintiff is tenant in that SCO under the defendants and as such, I am of the view that purpose of filing the present suit shall be defeated if no ex parte injunction is granted to him. Accordingly, the defendants are restrained from taking the possession of 600 sq. ft. area in the basement of that SCO and from interfering in the peaceful use and occupation of that premises, till further orders. Compliance of Order 39 Rule 3 CPC be made within 48 hours and objections if any, to this ex parte injunction order can be filed, if any.” It is pertinent to mention that in the said civil suit, while disposing of the application under Order 39 Rules 1 & 2 CPC, following observations were made: “..........Later on, there is memorandum of family settlement dated 21.10.1998. In clause No.10 of this family settlement, it has been mentioned that 600 sq. ft. area of this basement shall go to Naresh Kumar and remaining area of that basement shall remain with Des Raj and Ajay Kumar, but the account statement on record are revealing the fact that the entire tenancy was finally @ Rs.2400/- per month and that rent was paid by M/s Juneja Trading Agencies. That otherwise also, in view of the citations as detailed above, that tenancy may split up against co-tenants, but that was not split up for the owner landlord. Moreover, there is nothing on record for exclusive possession/partition of that portion of 600 sq. ft. in favour of respondent from the rest area to his father and brother. In nutshell, the entire tenancy is a one unit. Moreover, regarding delivery of possession has not been complied with and on the other hand, the plea of the respondents is that the applicant by breaking open the lock has put his articles as argued by learned counsel for the parties. Accordingly, these arguments require proper evidence of the parties, but at this stage, being one unit of entire tenancy and moreover for the business purposes, no CRM-M- 2270 of 2009 -6- specific portion from the entire basement can be separated and surrendered to the owner/landlord by a co-tenant from the premises. Moreover, as per the business concern of the applicant and the respondent No.2, respondent No.2 cannot be restrained from claiming himself Director of that Juneja Trading Agencies Pvt. Ltd. as it is a business concern definitely with the documents of their registration and on wrong proclamation by him, he would face the consequences thereof. That for the tenancy premises, the citations as relied upon learned counsel for the applicant are supporting his contention. Accordingly, a prima-facie case, balance of convenience is made out in favour of the applicant for the purpose of that tenancy as that citations are supporting the contentions of the applicant.” Learned counsel for the respondent has argued that insofar as the enquiry report dated 14.1.2008 is concerned, it has been specifically mentioned therein that “Forwarded with report that in light of the “SHO's report, we may obtain legal opinion from Dy.D.A. so that the complaint could be disposed of accordingly, pl.” In the report dated 31.3.2008, the following observations were made by Sanjeev Kumar, SI: “It is submitted that the matter has been discussed with L. Dy.D.A. Legal regarding the complaint made by Bandeep Rekhi for trespassing against Ajay Juneja. The order of copy dated 18.3.2008 passed by Shri Ram Kumar Singla, P.C.S. Civil Judge (Jr.Division), Chd. also examined. The order cleared that Shri Naresh Kumar Juneja restrained from delivering possession of 600 sq. ft. area of basement of SCO to respondent No.1 i.e. complainant Bandeep Rekhi s/o Amrit Pal Singh, R/o 1381, Sector 33-C, Chandigarh. Both the respondents i.e. Naresh Kumar Juneja/Bandeep Rekhi are also restrained from interfering into the possession of the applicant. CRM-M- 2270 of 2009 -7- However, the respondent No.2 can also use the said portion as co-tenant subject to payment of his share of rent. Accordingly, the application is hereby partly allowed. So, it is therefore, requested that the possession of Naresh Juneja given to applicant is not proved so far physically. So, there is no trespassing proved. Hence, the complaint may please be filed. The copy of order of Court dated 18.3.2008 passed by Shri R.K.Singla, C.J.(Jr.Division), attached herewith.” On the basis of the above report, ASP Central made the following observation: “Forwarded with report that as desired by the Dy.D.A., the matter has been discussed by the I/O. The alleged trespassing has not been proved. Hence, we may file the complaint please.” Report which has been submitted by Deputy District Attorney to S.S.P.Chandigarh reads as under : “Subject: Complaint dated 1.1.2008 made be Mr.Bandeep Rekhi for trespassing against Mr.Ajay Juneja. Ld.SSP may kindly see the further report of SI Sanjeev Kumar and comments thereon of SHO P.S. 17 and A.S.P./Central. Mr.Bandeep Rekhi, the owner, had made a complaint against Mr.Ajay Juneja for trespassing by breaking open the lock into the area of the tenanted premises which was surrendered by Mr.Naresh Juneja to him after taking consideration amount. During the inquiry, it was found that the Civil Court has granted stay order in favour of Mr.Ajay Juneja. Now the said court has decided the matter vide order dated 18.3.2008 (Flag `Z') stating therein that Mr.Naresh Kumar Juneja shall not deliver possession of 600 sq. ft. area of basement of SCO to Mr.Bandeep Rekhi, and they shall also not interfere into the CRM-M- 2270 of 2009 -8- possession of Mr.Ajay Juneja. The Inquiry Officer has also reported that the handing over of physical possession by Mr.Naresh Juneja to the complainant Mr.Bandeep Rekhi does not stand proved, and there is no trespassing. Mr.Naresh Juneja was not competent to surrender the tenancy to the owner as the tenant was in fact Juneja Trading Agencies. In view of the court order and finding of the Inquiry Officer regarding non-handing of physical possession to the complainant Mr.Bandeep Rekhi, the complaint may be filed as suggested by the I.O. and his supervisory officers. For consideration/decision please.” Counsel for respondent No.2 has further argued that in view of prima-facie finding recorded by the Civil Court that there is nothing on record to show exclusive possession/partition of that portion of 600 sq. ft in favour of Naresh Kumar Juneja from the rest of the area, the entire tenancy is presumed to be one unit and since he was not given any exclusive area, therefore, the same could not have been surrendered by Naresh Kumar Juneja to the petitioner (landlord). Similarly, it is argued that as per the report of Deputy District Attorney, handing over physical possession by Naresh Kumar Juneja to the petitioner does not stand proved, therefore, prays for trespassing. It is further argued by counsel for respondent No.2 that after the grant of anticipatory bail, a legal right vests with the petitioner and the same cannot be taken away on the basis of frivilous material which cannot be taken into consideration by the Addl.Sessions Judge, Chandigarh. He relied upon a judgment of the Apex Court in Savitri Agarwal and Others Vs. State of Maharashtra and another 2009(3) RCR (Criminal) 792. CRM-M- 2270 of 2009 -9- After hearing the learned counsel for the parties and keeping in view the facts and circumstances of the case much less the finding recorded by the Civil Court as well as the reports dated 18.3.2008, 31.3.2008, 1.4.2008 and 4.4.2008, I do not find any justification in interfering in the order passed by the Court below. As such, the present petition is hereby dismissed. (Rakesh Kumar Jain) 15.9.2009 Judge Meenu