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Jamshed Butt Vs. State Govt. of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1957CriLJ382
AppellantJamshed Butt
RespondentState Govt. of Madhya Pradesh
Excerpt:
- - the learned trial judge observed that butt could include the plaintiff as well as amir murtaza who had also styled himself as butt in the application......findings on the issues framed as the preliminary issues for trial. the plaintiff instituted the suit claiming damages amounting to rs. 18,000. the claim was based on the allegation that his property was seized wrongfully in criminal case no. 111 of 1947 as belonging to one sardar khan who was the accused in that case. according to the plaintiff, he filed an objection under section 88(6-a) of the code of criminal procedure praying that the entire property attached belonged to him and that sardar khan had no interest of any kind in it. the sub-divisional magistrate, harda, investigated the claim preferred by the plaintiff and passed an order on 9-3-1948 allowing the objection to the extent of a -/12/- interest in the property seized but disallowing it to the extent of -/4/-. the.....
Judgment:

R. Kaushalendra Rao, J.

1. This appeal Is by the plaintiff against the dismissal of his suit on the ground that it was barred by limitation consequent on the findings on the Issues framed as the preliminary issues for trial. The plaintiff instituted the suit claiming damages amounting to Rs. 18,000. The claim was based on the allegation that his property was seized wrongfully in criminal case no. 111 of 1947 as belonging to one Sardar Khan who was the accused in that case. According to the plaintiff, he filed an objection under Section 88(6-A) of the Code of Criminal Procedure praying that the entire property attached belonged to him and that Sardar Khan had no interest of any kind in it. The Sub-Divisional Magistrate, Harda, investigated the claim preferred by the plaintiff and passed an order on 9-3-1948 allowing the objection to the extent of a -/12/- interest in the property seized but disallowing it to the extent of -/4/-. The magistrate sold the properties for Rs. 49,880 and retained Rs. 12,470 as the -/4/- share of Sardar Khan. Stock of coal worth Rs. 2,120 remained undisposed of. Sardar Khan's share in the latter also was -/4/- i. e. Rs. 530. The suit was therefore instituted on 6-3-1949 claiming Rs. 13,000 as the price of the goods withheld and Rs. 5,000(reduced in appeal to Rs. 2000/-) as damages for the wrongful and illegal attachment of the plaintiff's property and for cessation of the plaintiffs work in the Banapura shop due to the closure of the shop and its being sealed up by the police.

2. The defendant denied that the plaintiff filed any objection claiming release of the entire property on the ground that it belonged to him. It was asserted that an application was made by one Amir Murtaza on 17^12-1947 claiming release of the entire property and that no claim of the plaintiff was investigated by the Sub-Divisional Magistrate, Harda. It was further pleaded that the plaintiff was not a party to those proceedings ' and that the order by the magistrate on 9-3-1948 afforded no cause of action to the plaintiff. According to the defendant, the suit was accordingly barred by time, it having been brought after one year of attachment on 12-12-1947.

3. The learned trial judge found that the plaintiff did not prefer any objection through Amir Murtaza, that the objection filed .by Amir Murtaza was not for the plaintiff and the subsequent proceedings were not conducted by the plaintiff. On these findings, the learned trial judge held that the plaintiff could not invoke Section 88(6A) of the Code of Criminal Procedure and the suit was governed by article 29 of the Limitation Act. As the suit was instituted more than one year after the date of attachment, the learned judge dismissed the suit as barred by time.

4. The view of the learned trial judge that the plaintiff could not invoke Section 88(6D) cannot be upheld so far the claim for Rs 13,000 was concerned.

5. We have on record the order passed by the magistrate on 8-3-1S48 in criminal case No. 111 of 1947. In paragraph 1 of the order the learned magistrate observed:

On 10-1-48, one Butta filed an objection claiming the seized property to be his. The case was, therefore, enquired into, as required by Section 88(6-a) of the Code of Criminal Procedure.

After holding that Sardar Khan's interest in the property was limited to ./4/- and releasing 3/4 share of the entire property under seizure the learned magistrate concluded:

It must be noted here that Butt has not appeared in this Court after his statement was recorded. His pleader Mr. S. R. Pande may, therefore, be informed of the decision of this case. Copy of this order will also be sent to S. O. Seoni-Malwa, for action as pointed out in the order.

(vide Exh. P-1).

The statement referred to above by the learned magistrate is on record as Exh. P-3. In that statement the plaintiff claimed the seized property as belonging to him.

6. It is evident from the order sheets (Exh. D-3) in the case that the property (3/4 of the entire seized property) was returned to the plaintiff (vide order sheets dated 26-10-1948 and 11-12-1948). The latter order sheet reads as under:

Jamshed Butt present. The entire sum of Rs. 49,880 representing the auction price has been deposited by the auction purchaser Mastan Singh. According to the order of S. D. M. Harda dated 9-3-1948 in Criminal Case no. 111 of 1947 K. E. versus Sardarkhan under Section 19(f) Arms Act, Jamshed Butt is entitled to 3/4th share while Sardarkhan is entitled to 1/4th share. Rs. 326 have been deposited as Miscellaneous Revenue Forest. Dept. vide Ch. No. 3 dated 4-12-40 in accordance with the D. P. O's memo on account of the technical help and advice given to the forest staff, stationed at the forest Depot., Banapura, in connection with the auction. Property of Jamshed Butt was wrongly attached along the (sic) that of Sardar Khan. It was (3/4th the entire seized property) was (sic) subsequently ordered to be released.

7. The learned trial judge held that there was no objection by the plaintiff because the application (Exh. D-10) filed by Amir Murtaza on 17-12-47 was not on behalf of the plaintiff. The learned trial Judge observed that Butt could include the plaintiff as well as Amir Murtaza who had also styled himself as Butt in the application. The learned trial judge was in error in holding that Amir Murtaza had also styled himself as Butt. The latter did not so describe himself in the application. In the application Amir Murtaza claimed some of the property attached as belonging to his brother Jam-shed Butt and prayed for its release.

8. It is true that the plaintiff averred in his plaint that he had put in an application through Amir Murtaza. But apart from that it is evident from the order of the magistrate himself (on 9-3-1948) that he was enquiring into an objection filed by Butta (sic) on 10-1-48 claiming the property to be his.

That such an objection was filed by Butt is clear from the magistrate's order sheet dated 10-1-1948(vide Exh. P-2). The magistrate therefore enquired into that objection as stated by him in his order (Exh. P-1) under Section 88(6A) and allowed the objection with respect to a part of the property. Having regard to the course of the proceedings culminating in the order of 9-3-1948, it must be held that the objection disposed of on that date was in fact that one filed by the plaintiff himself or at any rats treated by the magistrate as having been filed by him.

The magistrate expressly stated that the case was enquired into under Section 88(6A) of the Code of Criminal Procedure. The findings on issues (a), (b) and (c) are reversed.

9. It is however contended for the respondent that Section 88(6D) can have no application when the suit is, as here, for the sale proceeds of the property seized and not the property itself. Not-Withstanding the observations in Secretary of State v. Ahalyabai Narayan ILR (1938) Bom 454 : AIR 1938 Bom 321 in favour of the contention of the respondent, we prefer the view taken in Gangayya v. Lakshmi Devi AIR 1942 Mad 93.

The words, 'to establish the right which he claims in respect of the property in dispute' are not rendered inapplicable because subsequent to the order disallowing the claim or objection, the property has been sold. It has been ruled that a suit under Order XXI, Rule 63 of the Code of Civil Procedure for the recovery of sale proceeds of the property sold subsequent to the rejection of a claim or objection is covered by the similar expressions, 'the right which he claims to the property in dispute' in Order XXI, rule 63 and 'to -establish the right which tie claims to the property comprised in the order' in Article 11 of the Limitation Act. See Basivi Reddi v. Ramayya ILR 40 Mad 733 : AIR 1917 Mad 393.

10. Reliance is placed for the respondent on the decision in Muthuswami v. Dhanushkodi : AIR1950Mad734 in support of the contention that the entire suit fell under Article 29. But that case was not concerned with a suit for property or its price consequent upon a disallowance of the claim to such property under Section 88(6D) of the Code of Criminal Procedure. So the case cannot assist the respondent. We are of opinion that the claim for Rs. 13000 is governed by the specific provision in S 88(6D) and cannot therefore be held to be barred by time.

11. That leaves for consideration the question whether the rest Of the claim for Rs. 2,000 can also be held to be within time. Rs. 2000 are claimed as damages. The allegations in paragraph 6 of the plaint make it clear that the damages are claimed independently and quite apart from any right to the property which was claimed under Section 88(6) of the Code of Criminal Procedure or its value which part of the claim we have already dealt with.

A claim for damages unconnected with any right to the property cannot be said to have been raised or disallowed under Sub-section (6A) so as to attract Sub-section (6D). According to the allegations in the plaint, damages are claimed for wrongful and illegal attachment or, in other words, illegal seizure of the plaintiff's property and also for cessation of the plaintiff's work in the shop due to its closure by the police. The claim in so far as it is founded on illegal seizure must be held to fall under Article 29 of the Limitation Act.

As the suit was not brought within one year from the date of seizure i.e. 12-12-1947, it must be held to be barred by time in so far as the claim for Rs. 2000 is based on wrongful and illegal attachment. So far as the claim is based on wrongful closure of the shop, it cannot be said to be covered by Article 29.

That portion of the claim being founded on tort not specially provided for is governed by Article 36 of the Limitation Act. See Chiranji Lal v. Bhib Lal AIR 1926 Lah 242. The suit was brought within two years from the date of the closure of the shop.

12. In the result, the appeal is allowed in part. The decree of dismissal is affirmed in so far as the suit for damages for Rs. 2000 based upon wrongful and illegal attachment was held to be barred by time. The suit is however held to be in time and the decree of dismissal is set aside in so far as claim is for Rs. 13,000 and also for damages for Rs. 2000 only m so far as it is founded on illegal closure of the shop. The case is sent back for trial and disposal in conformity with this decision. Costs of the appeal shall abide the event.


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