(Prayer: Petition (disposed of on 25-3-1946) under Ss. 435 and 439 Crl. P.C. 1898 praying the High Court to revise the order of the Court of the Additional first Class Magistrate, Rajahmundry, dated 2-3-1945 in M.C. No. 12 of 1944.)

This is a petition to revise the order of the Additional First Class Magistrate of Rajahmundry in M.C. No. 12 of 1944 dropping further proceedings under S. 145(5) of the Code of Criminal Procedure. The petitioner had taken on lease the Hanuman Picture Palace also called Amrit Talkies in Lakmivarapetta at Rajahmundry from the respondent and another, and he was in possession of the same till 9th September 1944. The petitioner is a person who belonged to Bangalore and he had taken this building on lease for running cinema shows. The petitioner had taken a licence. Representing to the District Magistrate that under the terms of the lease the licence should be taken by him only in the name of the lessor, the lessor, the respondent, got the licence issued to himself, and a notice was also issued saying that the respondent was entitled to possession. The notice ran as if the District Magistrate had consulted the Government Pleader and had accepted his opinion. Accordingly, when the petitioner was absent his manager and others were sent out and, the respondent went to the Talkies, got possession of the property and began to run the show. The petitioner got information from his manager and Other servants and came to Rajahmundry and filed this petition. A preliminary order was issued by the Magistrate, saying that there was a dispute about possession and an apprehension of a breach of the peace. The respondent was directed to file a statement. Inquiries were also made. Documents were filed. The learned Magistrate found that the petitioner was in possession till 9th or 10th October 1944 when he was dispossessed; but he was of opinion that as there was no subsequent actual breach of the peace and as the parties were peaceful, no action need be taken and dropped the proceedings.

The Magistrate has found on the evidence that the petitioner was in possession, and it is also in evidence that the notice was issued on incorrect information. There is nothing in the lease to indicate that the petitioner was not to obtain the licence in his own name but should obtain it in the lessors name. To that extent, the representation was wrong, and the Magistrates notice was therefore based on incorrect information. This is not disputed before me. But what is urged before me is that the lease contained a clause of forfeiture for non-payment of rent. As a matter of fact, the lease was originally for one year, and there was a subsequent settlement under which a larger rent was payable, and the petitioner was paying it. It is also in evidence that there was a suit for the rent prior to these proceedings and there was no prayer in that suit for enforcing the forfeiture. From the records, it is clear that the petitioner was in possession till the date on which he was evicted, and it is true that they did not take up cudgels or use violence to resist the entry by the respondent. But there is no doubt that in the absence of the petitioner the manager and other servants had no other go, since the notice of the Magistrate was shown to them; and since it was a notice issued on a mistake, such an eviction should be considered to be an eviction by force. It is not in all cases that actual force should be used before it could be said that the eviction is a forcible one. Misrepresentation and improper threats besides these are sufficient to constitute forcible dispossession, and there were these in this case. It was by getting the licence cancelled and by getting it issued in the name of the lessor and by having the notice issued by the Magistrate that the servants and others were made to leave. Therefore it cannot be said that the preliminary order of the Magistrate saying that there was an apprehension of breach of the peace and that there was forcible dispossession was incorrect. As a matter of fact, the further proceedings clearly indicated this. But what happened is that the petitioner did not take the law into his own hands and enter on the property. If the contention of the respondent is to be accepted it would mean that law-abiding citizens who are prepared to leave the matter to be decided by the Court instead of taking the law into their own hands are not to have the benefit of an order under S. 145, if they are peaceful. This is not a case in which matters should have to be dropped by reason of S. 145(5). It is only if there has been a subsequent settlement or if the petitioner agreed to give up the leasehold right and not claim to get back possession of the property, action can be taken under S. 145(5). Merely because there has been no further violence, it could not be said that there cannot be a breach of the peace and proceedings should be dropped. As it was found that the petitioner was in possession and had been evicted only by notice obtained on incorrect representation to the Magistrate and only by the issue of a notice on such incorrect recitals that the petitioners servants have been made to vacate the building, it will have to be considered that there was a forcible eviction of a person entitled to be in possession.

As pointed out in Kamal Kutti v. Udayarama Raja Valia Raja of Chirakkal (36 Mad. 275) [LQ/MadHC/1912/463] , it is not necessary that the continuance of a breach of the peace is necessary before a final order could be passed. Vide also Bai Jiba v. Chandulal Ambalal (A.I.R. 1926 Bom. 91) [LQ/BomHC/1925/167] and Gurditta v. Taza (A.I.R. 1939 Lah. 108).

I accordingly set aside the order of the lower Court and instead declare that the petitioner is entitled to be in possession, that he was in possession, that he was forcibly ousted by the respondent, that he is entitled to have his possession restored, and that he will be put in possession of the property which is the subject matter of these proceedings.