1 appw146.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.146 OF 2011 In CRIMINAL WRIT PETITION NO.437 OF 2011 Shri Sachin Praful Desai Through C/A Anil Gulabdas Shah : Applicant (Orig.Resp. no.3) V/s. Shri Purandar Pathak & Ors. : Respondents .... Mr.Anil Shah, Constituted Attorney of applicant present in person. Mr.Mayur Khandeparkar with Mr.Sunil Chaturvedi i/b. T.N. Tripathi & Co., for respondent no.1. Mr.D.P.Adsule, Addl. Public Prosecutor for respondent nos.2 & 3. Mr.Ravindra Lokhande for respondent no.7. .... CORAM : A.M. KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE : MAY 03, 2011. P.C.: Heard the applicant in person and the learned Addl. Public Prosecutor for the respondent nos.2 & 3 as well as the counsel appearing for the respondent no.1 as also the respondent no.7. 2. The principal grievance in this application is that the order dated 2 appw146.11 22.2.2011 which came to be passed in Criminal Writ Petition No.437 of 2011 is without giving notice to the applicant and that has caused immense prejudice to the applicant. According to the applicant, the panchanama dated 30.12.2010 clearly reveals that the applicant was in possession of the premises and was forcibly dispossessed on the night of 31.12.2010. 3. As regards this grievance, we have noticed from the panchanama dated 30.12.2010, that there are two entrances to flat no.1139 which is the subject-matter of the present proceedings. On one entrance which is wooden door, the name-plate of Sachin Desai was displayed. Much emphasis is placed on this factual position stated in the said panchanama. However, the said panchanama clearly records that person present at the said premises was the respondent no.1 in the present application, the original writ petitioner. He claimed to be the owner of the premises and also in occupation thereof. The panchanama records that repair work in the flat was going on. Further, the argument clearly overlooks the basis on which Criminal Writ Petition No.437 of 2011 came to be decided. Notably, the grievance in the said Writ Petition was answered essentially on the basis of the last panchanama in point of time dated 5.1.2011, which reveals that the writ petitioner and his relatives were seen inside the flat in 3 appw146.11 which painting work was going on. In the context of that factual position, the Court proceeded to answer the controversy by directing the police to remove the seal and allow the petitioner and his relatives to enter upon the flat and leave the private parties to resolve their grievance in appropriate proceedings, including action under section 145 of the Cr.P.C. The Court made it abundantly clear that the issues to be raised by the writ petitioner or for that matter the applicant will have to be examined by the concerned Court on its own merits on the basis of material to be produced by the parties. 4. Significantly, the writ petitioner after the disposal of the Writ Petition proceeded to file a suit before this Court for a declaration and injunction in which the applicant has been impleaded as the defendant no. 1. The applicant resisted the Motion for ad-interim relief and after hearing the applicant and detailed scrutiny of the material produced by the respective parties, the Court has granted ad-interim relief in terms of prayer clause (a) of the Motion except the words “dealing with”, pending the hearing and final disposal of the Notice of Motion. The applicant argues that the said decision of the learned single Judge of this Court in Notice of Motion no.1016 of 2011 is essentially based on the position emanating from the order passed by the Division Bench of this Court on 4 appw146.11 22.2.2011. However, on going through the decision of the learned single Judge, we do not agree with this submission. 5. As aforesaid, the ad-interim order in the Notice of Motion is passed after analysis of all the relevant aspects and documents produced before the learned single Judge in the pending suit. The apprehension of the applicant that his claim in the pending civil proceedings or for that matter in criminal action under section 145 of the Cr.P.C. is likely to be affected because of our order dated 22.2.2011, is misplaced. As aforesaid, this Court in the order dated 22.2.2011 has made it abundantly clear that the order was not an expression of opinion either way as to whether the writ petitioner and his relatives were in legal or juridical possession of the premises in question, as that is a matter which will have to be addressed in appropriate proceedings. It is not the case of the applicant that he has resorted to any substantive proceedings against the writ petitioner or any third party. Suffice it to observe that the decision in Criminal Writ Petition No.437 of 2011 dated 22.2.2011 will not and cannot come in the way of the applicant in pursuing his legal remedy and contention before the appropriate forum. All questions in that behalf will have to be decided on its own merits and uninfluenced by the fact of order dated 22.2.2011. 5 appw146.11 6. The applicant has relied on the unreported decision of the apex Court in Md. Sukur Ali v. State of Assam in S.L.P. (Cri.) No.679 of 2011 decided on 24.2.2011 to contend that the hearing of the Writ Petition could not have proceeded ex parte against him and without notice to him. Indeed, the applicant was made a party in the said Writ Petition. He was impleaded as a respondent in the said Writ Petition in the context of relief claimed therein of quashing of F.I.R. filed by the applicant naming the writ petitioner as accused. However, during the hearing, the writ petitioner did not press for the said relief of prayer clause (c) of the Writ Petition. Insofar as the relief granted to the writ petitioner, that is in respect of the unauthorised action taken by the local police in unilaterally throwing out the petitioner and his relatives who were seen in the flat in question in which painting work was going on, on 5.1.2001, and sealing the said flat. The Court has merely noted that that action of the local police cannot be sustained and for which reason, directed the local police to remove the seal of the flat and put the writ petitioner and his relatives in possession thereof, which means status quo ante as on 5.1.2011 was to be restored. That, however, was without prejudice to the rights and contentions of the parties. It was also clarified that on account of the restitution of the petitioner in the flat, that would not mean that the 6 appw146.11 petitioner and his relatives were in legal occupation of the premises. 7. For all the aforesaid reasons, we are of the considered opinion that this application deserves to be rejected with liberty to the applicant to pursue his remedy before appropriate forum. Ordered accordingly. 8. As regards the criminal action under section 145 of the Code which is still pending, it will be open to the applicant to approach the concerned Magistrate for expediting the said proceedings and if such request is made, the concerned Court shall proceed to decide the said proceedings as expeditiously as possible and, in any case, not later than six months from the date of accepting such request. We make it clear that even those proceedings will be decided on merits, in accordance with law. (A.M. KHANWILKAR, J.) (MRS.MRIDULA BHATKAR,J.)