Aijaz Ahmad Fazili and Others vs Arshid Ahmad Maqdoomi and Another

R.C. Gandhi, J.—This reference is made by the learned Sessions Judge, Budgam, recommending set aside the order passed by learned

Chief Judicial Magistrate, Budgam, whereby proceedings u/s 145, Cr.P.C, pending before him has been stayed till final disposal of the suit.

Proceedings u/s 145, Cr.P.C. were instituted in February, 2000 before the learned Chief Judicial Magistrate, Budgam, Along with the

proceedings, an application under Sub-section (iv) of Section 145, Cr.P.C. was also moved. The learned Chief Judicial Magistrate, after drawing

the preliminary order on 29th Feb. 2000, attached the property in exercise of the powers under Sub-section (iv) of Section 145, Cr.P.C. Later on

vide order dated 26th June, 2000, the proceedings were dropped by the learned Chief Judicial Magistrate. The order of dropping of the

proceedings was challenged by means of Revision Petition before the learned Sessions Judge, Budgam, who upheld the order. The said order

were challenged before this Court. This Court vide order dated 21st Dec. 2000 set aside the orders of the trial Court and the revisional Court and

directed the learned Chief Judicial Magistrate, Budgam, to decide the proceedings finally in accordance with law. Pursuant to the order of this

Court the learned Chief Judicial Magistrate proceeded to adjudicate the proceedings.

On 3rd July, 2001 the respondent herein moved in application for staying the proceedings on the ground that a suit with regard to the same

property is pending and the civil Court has passed interim direction of maintenance of status quo. Objections to the application were filed by the

petitioners herein. The learned Chief Judicial Magistrate, after considering the rival contentions, stayed the proceedings vide order dated 30th July,

2001.

Aggrieved by this order the petitioners, who have initiated the proceedings u/s 145, Cr.P.C. challenged the order by means of Revision Petition

before the learned Sessions Judge Budgam. The learned Sessions Judge, after hearing learned counsel for the parties and relying upon the

judgments cited before him, has recommended for setting aside the order of the learned Chief Judicial Magistrate observing that the jurisdiction of

the Magistrate to proceed in the matter is not ousted because of the pendency of the civil suit.

Heard learned counsel for the parties.

It is seen from the pleadings that this Court vide order dated 21st Dec. 2001 directed the learned Chief Judicial Magistrate, after quashing the

order, to finally dispose of the proceedings in accordance with law, The respondents thereafter instituted a suit with respect to land covered by

survey Nos. 2345/165 whereas the proceedings u/s 145, Cr.P.C. relate to survey Nos. 3355/140 and 3358/142. Thus the land in dispute in

proceedings u/s 145, Cr.P.C. and the civil suit is not the same.

Learned counsel for the respondents has submitted that the proceedings before the Magistrate cannot proceed unless there is a proper

identification of the land. It is seen from the pleadings that there is no dispute with regard to the identification of the land. The land is identified by

survey numbers. His submission, therefore, has no substance.

Proceedings u/s 145, Cr.P.C. cannot proceed if the civil Court has passed some order deciding the rights of the parties with regard to its

possession. Mere pendency of the suit or existence of an ad interim direction directing maintenance of status quo by the civil Court in a suit

instituted after the initiation of proceedings u/s 145, Cr.P.C. does not debar the Magistrate to decide the proceedings. This preposition of law has

been settled by this Court in Ghulam Mohi-ud-Din v. Gani Joo reported in 1987 J&K LJ 538 and Abdul Rashid Wani v. State reported in 1987

Srinagar LJ 389. Dealing with the same preposition of facts and law, this Court in para 6 of the Judgment in Abdul Rashid Wani v. State (supra)

held as under :--

It is true that the proceedings u/s 145, Cr.P.C. are liable to be stayed or dropped if their rights have been adjudicated upon by a civil Court or

in a pending civil action temporary injunction or interim direction with respect of the subject matter of dispute had been issued by the civil Court or

the rights of the parties had been finally determined by any other competent Court of jurisdiction under any particular statute. It does not, however,

mean that a clear party to a litigation u/s 145, Cr.P.C. can defeat the provisions of law by initiating civil action after the Magistrate had taken the

cognizance with respect to the property as contemplated u/s 145, Cr.P.C. If the proceedings Were held to be liable to be dropped merely on the

ground of filing of a civil suit and obtaining an order of status quo after the initiation of the proceedings u/s 145, Cr.P.C., that would mean to render

the provisions of Section 145, Cr.P.C. redundant and non-existent. In the instant case an application was filed before the Superintendent of Police,

Budgam by one Mohd. Akram Wani with the prayer of initiating action u/s 145, Cr.P.C. consequently upon which the police station, Budgam,

submitted a petition in the Court of Munsiff Magistrate, 1st Class Chandoora on 21-10-1986 with the submission that as there existed a dispute

with respect to the property, proceedings u/s 145, Cr.P.C. be initiated against the parties named in the said application. The Magistrate passed a

preliminary order on 23-10-1986 by issuing notice to the parties to file their claims and objections in accordance with the provisions of law. It

appears that Gh. Mohd. Wani and others filed a suit for permanent injunction against Mohd. Akram Wani and others in the Court of Munsiff,

Chadoora on 30-10-1986 and filed an application for the grant of temporary injunction on 6-10-1986 when the Munsiff issued notice to the other

side for filing objections and directed that the status quo shall be maintained on spot till further orders. It clearly shows that the no civil proceedings

were pending nor any interim order issued against any one of the parties by a civil Court when the preliminary order was passed. The trial

Magistrate was, therefore, justified in proceeding with the case and passing appropriate orders in atcordance with the provisions of law.

It is not in dispute that the Civil suit was filed after the institution of proceedings u/s 145, Cr.P.C. The interim direction issued by the Civil Court

is directing the parties to maintain status quo. The status quo order does not decide the rights of the parties with regard to possession of the land.

Such ad interim direction does not oust the jurisdiction of the Magistrate to proceed in the matter. The order of the learned Chief Judicial

Magistrate staying the proceedings, therefore, is not sustainable under law. The learned Sessions Judge has rightly appreciated the facts and the

law while making recommendation for setting aside the order of the learned Chief Judicial Magistrate. I concur with his findings and

recommendation.

The reference is, accordingly, accepted and order of the learned Chief Judicial Magistrate, Budgam, is set aside, He shall determine the

proceedings as directed by this Court earlier vide order passed 21st Dec. 2001.