This revision petition is directed against the order of Mr. M. Jamil Asghar, Sessions Judge, Lahore, dated 13th of February 1963 whereby he dismissed the petitioner's revision petition against the order of Mr. Ijaz Ahmad Cheema, Magistrate First Class, Lahore, dated 27th of August 1962, passed under section 522 of the Criminal Procedure Code (hereinafter called the Code) restoring the possession of the house in dispute to the respondent.
2. The petitioner was convicted under section 448, P. P. C. On 9th of August 1960. The learned Magistrate who had convicted the petitioner also passed an order on 16th of August 160, restoring the possession of the house in dispute to the respondent under section 522 of the Code. An appeal was taken against the order of conviction and during the pendency of the appeal, a stay order was also obtained with regard to the order passed for restoration of the possession of the house. The appeal was dismissed on 25th of November 1960, but the sentence of fine was reduced from Rs.
500 to Rs. 300. A revision against the dismissal of the appeal was filed in the High Court, but failed.
On 17th of May 1961, the petitioner filed a revision petition against the order dated 16th of August 1960, restoring the possession of the house to the respondent. Mr. Saad Saood Jan Additional Sessions Judge, Lahore, dismissed this revision petition on 22nd of June 1961. The contention of the petitioner is that the respondent again moved Mr. Ijaz Ahmad Cheema, M. I. C. On 27th of August 1962. The learned Magistrate passed an order on 30th of October 1962. Against this order, a revision petition was taken to the Sessions Court. Mr. M. Jamil Asghar Sessions Judge, Lahore, dismissed the revision petition on 13th of February 1963.
3. This petition was admitted on the ground that no use of force as defined in section 349, F. P. C.
Had been made in the process of the trespass for which the petitioner had been con--victed and an order under section 522 of the Code was therefore, bad in law.
4. I have heard the learned counsel at length in this case and I find that this petition deserves dismissal for reasons more than one. It will be seen from the history of the case given above that the appellate Court did not set aside the order of restoration of possession of the house to the respondent which it was competent to do under section 423 (1) (d) of the Code although it granted a stay order during the pendency of the appeal. A revision separately filed about nine months after the passing of the impugned order was dismissed by Mr. Saad Saood Jan, Additional Sessions Judge, Lahore, on 22 of June 1961. The matter was not taken up to the High Court. The petitioner claims to have got a fresh cause of action because of fresh order passed by Mr. Ijaz Ahmad Cheema on 30th of October 1962. I have seen the record concerned and I find that Mr. Ijaz Ahmad Cheema did not pass any fresh order under section 522 of the Code nor was there any necessity for passing such an order as a valid order had already been passed by Mr. Ghulam Murtaza Who had convicted the petitioner. Before Mr. Ijaz Ahmad Cheema, the respondent had filed an application on 27th of August 1962; praying that there was no stay order in the field and that the order passed by Mr. Ghulam Murtaza be implemented. The learned Magistrate, thereupon, passed an order directing the delivery of possession to the respondent on 30th of October 1962, against which order the revision petition was dismissed by Mr. Jamil Asghar. It would, therefore, appear that from 25 November 1960, on which date the appeal of the petitioner was dismissed, he did nothing to have this order set aside by the High Court. He filed a belated revision petition before Mr. Saad Saood Jan which was dismissed on 22nd of June 1961, and this finally settled the matter between the parties. The revisional jurisdiction has been conferred on the superior Courts as a supervisory jurisdiction and. There is no time limit for its exercise but it does not mean, that a party who has accepted a particular order passed by, a competent Court can at any time re-agitate the matter on one pretext or the other. The order passed by Mr. Ijaz Ahmad Cheema on 30th of October 1962, in my view, did not give any fresh cause of action to the petitioner. The matter stood finally concluded by the pronouncement of Mr. Saad Saood Jan. The revision petition deserves dismissal on that ground alone.
5. I would, however, like to examine the legal argument advanced before me. According to the allegations in the com--plaint filed under section 448, P. P. C. Against the petitioner, he had broken open the lock of the house in dispute in the absence of the owner and had taken illegal possession thereof. On this fact, the learned counsel has built up an argument that since no force as defined in section 349, P. P. C. Was used at the time of the trespass, no order under section 522 of the Code was competent. He has, in this connection, referred to Ram Chand and another v. Emperor (AIR 1939 Lah.184), Bhani and others v. Narbin Singh (AIR 1940 Lab. 84) and Narain Singh and another v.
Patina Lai (AIR 1940 Lab. 460) and has urged with some force that these authorities clearly indicate that no force, as defined in section 349, P. P. C. Can be used against inanimate things and, therefore, the order is not correct. In the second case relied upon by the learned counsel, the proposition raised by him before me was not decided. In that case a Bench of Honorary Magistrate had convicted the petitioner but another Bench had passed the order under section 522 of the Code. The High Court agreed with the recommendation of the learned Additional District Magistrate that the subsequent Bench had no jurisdiction to pass such an order. The two other cases, however, support the contention of the learned counsel. In the case of Ram Chand and another v. Emperor; the lock of the house had been broken in the absence of the owner, as in the present case. The conviction was maintained but the order under section 522, Cr. P. C. Was set aside on the ground that no force had been used at the time of the entry. Similarly; in the case of Narain Singh and another v. Panna Lai the complainant was dis--possessed of the vacant site while he was absent, and the accused had started building on it. It was held that since the entry had been made without any show of force, an order under section 522, Cr. P. C. Was not justified.nd th
6. The present case, in my view, is distinguishable from the cases relied upon by the learned counsel. No doubt that according to the complaint the entry in the disputed house was effected in the absence of the owner by breaking open the lock, but it was also alleged in para. 6 of the complaint that when the complainant went to the petitioner and asked him to give up his illegal possession, the later threatened him and assumed a fighting attitude. This would show that force, as defined in section 349, P. P. C. Was used for maintaining the possession of the house. It is not clear from the facts narrated to the reports of the cases relied upon by the learned counsel whether any show of force was made in those cases by the accused subsequently. In my view, therefore, the show of force to maintain the trespass after a surreptitious entry of the disputed property would entitle a complainant to an order under B section 522 of the Code. Any other interpretation would amount' to putting premium on the strategy of a wily trespasser who may by some device gain entry in a property and in spite of subsequent show of force may deprive an aggrieved person from the benefit of an order under section 522 of the Criminal Procedure Code. I am fortified in my view by a judgment of the Allahabad High Court i.e. Mst. Chhabla v. Ram Charan (AIR 1943 All. 7). In that case a woman had taken possession of a house by breaking open the lock in the absence of the lawful occupant. When he returned, the woman abused him and threatened him and would not let him in. A reference was made to the Allahabad High Court to quash the order under section 522 of the Code as no show of force had been made at the time of the entry.
The High Court rejected the reference. It was observed that it must be remembered that criminal trespass is not confined only to the mere entry on the property, but it also includes the act of remaining on the property, and if force or intimidation was used to prevent the owner from returning to the property, the Magistrate would be justified in acting under section 522 of the Code.
7. I may also observe that this Court will be very slow in upsetting an order in exercise of its revisional jurisdiction, which appears to be just. In Haji Mahmood and others v. Mir Akhtar Ali (PLD 1963 8 J 27) the petitioners had been convicted under section 453, P. P. C. And an order under section 522 of the Code had also been made for restoration of possession. The conviction was set aside on appeal. The petitioners had also filed a revision petition against the order passed under section 522 of the Code which was dismissed by the learned Sessions Judge on the same day on which the appeal was dismissed, on the ground that the position of the petitioners was of mere licensees and they had no legal right to the possession of the house. The learned Single Judge referred to the case of Abdul Ghani v. Crown (PLD 1950 Lah. 154) and held that the High Court will not fetter its discretion under section 439 of the Code and will always pass an order according to the justice of the cause. In this latter case also, conviction under section 453, P. P. C. Had been set aside and cancellation of an order passed under section 522 of the Code was claimed on the basis of the acquittal. The Division Bench of the High Court in the circumstances of the case refused to set aside the order passed under section 522 of the Code and refused to restore possession to the petitioners.
8. It has been urged that civil litigation is pending with regard to the same house and impugned order should be set aside also on that ground. I am afraid I cannot accede to that request. The civil litigation will have its own course. The order passed by Mr. Ijaz Ahmad Cheema on the basis of the order passed earlier by Mr. Ghulam Murtaza, in my view, is quite in consonance with the demands of justice and should not be disturbed by the revisional jurisdiction of this Court. I find no force in this revision petition which is, hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.