Ashok Kumar Agarwala and Others vs Baljit Singh

P.G. Agarwal, J.—Heard Mr. R.L. Yadav, learned counsel for the petitioners and Mr. J.M. Choudhury, learned counsel for the respondent.

The facts in brief are that on an application filed by the respondent 1st party, a proceeding u/s 144, Cr.P.C., was drawn up in respect of a plot of land measuring 1K-13L out of 14K-10L covered by Dag No. 1211 of Patta No. 48 situated at Lanka Town under Mauza Lanka and bounded by North-P.W.D. Road, South-Heirs of Dinesh Dutta, East-Noorjahan Hotel and land of Late Rajendra, West-Bhawgatilal Agarwal, hereinafter referred as the D/L. The said proceeding u/s 144, Cr PC was converted to a proceeding u/s 145, CrPC and the D/L was attached, by a common order dated 1-2-92. Therefore on 19-2-92 the respondent 1st party informed the Court that he has instituted a civil suit in respect of the D/L. Learned Executive Magistrate thereafter vide impugned order dated 19-2-92 dropped the proceeding u/s 145, Cr PC. The petitioner 2nd party has filed the present revision challenging the impugned order of dropping the proceeding.

There is no dispute at the Bar that the proceeding u/s 145, Cr PC is the subject matter for consideration in the civil suit filed by the 1st party. In view of the decision of the Apex court in the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others, learned counsel for the petitioner submits that the facts of the case of Ram Sumer Puri Mohan (supra) was different as this is a suit based on title and possession. In the present case the civil suit filed by the 1st party is for declaration of plaintiff''s rightful posssession and for permanent injunction restraining the petitioner 2nd party from dispossessing the plaintiff. The ratio laid down in Ram Sumer Puri Mohan (supra) is when a civil litigation is pending parallel criminal proceeding u/s 145. Cr.P.C.will be justified. Whether civil suit is for recovery of possession or for confirmation of possession, the question is immaterial, as because in both events, the civil Court has been called upon to decide the possession of the party.

Relying on Ram Sumer Puri Mohan 1985 Cri LJ 752 (supra) this Court in the case of Smt. Sushma Rani Das v. Ashutosh Das, reported in (1990) 2 GauLR 215 : 1990 Cri LJ 157 held that pendency of civil suit is a bar for drawing up proceeding u/s 145, Cr PC.

Learned counsel for the petitioner has relied on a decision of the Apex court in the case of Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, In the said case the Apex Court held :

It is true that in cases of dispute regarding immovable property a party should not be permitted to litigate before the Criminal Court when the civil suit is pending in respect of the same subject matter. That does not however mean that a concluded order under Section. 145, Cr.P.C., made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil Court. An order made under Section. 145, Cr.P.C., deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil Court. The unsuccessful party therefore must get relief only in the civil Court. He may move the civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil Court has jurisdiction to give a finding different from that which the Magistrate has reached.

In the present case the proceeding u/s 145, Cr. P.C. was at the initial stage and no decision or final order was passed. At it was not a concluded order under Section. 145 proceeding the ratio laid down in the above case is not applicable. In view of the pendency of the civil suit between the parties there was no scope for allowing the proceeding u/s 145, CrPC in MR Case No. 8/92 to proceed further. The impugned order was just and proper and there was no illegality.

In the result, the revision petition is dismissed.