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Judgment
M.M. Punchhi, J (Oral.)
The SubDivisional Magistrate, Ballahgarh, vide his order dated January 24, 1985 (Annexure P7) passed a preliminary order initiating proceedings under section 145 of the Code of Criminal Procedure between the petitioners and respondent at the instance of a complaint of the respondent. Subsequently, on January 24, 1985. The attached the land in dispute and put it under the control of The Court adinterim as an emergent measure. It is the initiation and continuation of such proceedings which have been challenged by the petitioners on the unvil of the law as laid down in Ram Sumer Puri Mahant v. State of UP & others AIR 1985 SC 472; 1985 (1) Recent C R. 278 for there was earlier civil litigation pending between the parties. The details are these.
The petitioners claim to be owner/perpetual lessees in possession of the land in dispute. Statedly effort was made by the State of Haryana to acquire the said land under the provisions of the Land Acquisition Act and after acquisition was suggestedly put in, possession of the respondent. The action of the State was challenged by means of a writ petition and this Court quashed the acquisition proceedings Now, the case of the respondent was that it was remains in possession of the land in dispute, whereas the petitioners maintain that they were and are in possession of the land in dispute. To settle their respective claims, the respondent, in the first instance, filed a civil suit, seeking permanent injection restraining the present petitioners from forcibly interfering in its possession Shri B B Parsoon Additional Senior Sub Judge Faridabad, vide order dated October, 1984. after taking into account the respective contentions of the parties, declined temporary injunctions. that order is Annexure P3 to the petition. Similarly, the petitioners too had in the meantime filed a civil suit for permanent injunction against the respondent. The same presiding Officer of the Civil Court vide order October 17, 1984, (the same day as of the other case) decided in favour of the petitioners, restraining it from dispossessing the petitioners from the land in dispute. As is the case of the respondent, it has filed two appeals in the Court of the District Judge and these are pending disposal
After its failure in the Civil Court, the respondent resorted to filing a complaint under section 145 of the Code of Criminal Procedure before the Sub Divisional Magistrate, Ballabgarh, on January 18, 1985, which led to the passing of a preliminary order and the sequel order of attachment, as referred to earlier. The point thus which has come handy to the petitioners to be agitated is that in view of Ram Sumer Puri Mahant''s case (supra) of the Supreme Court, when the civil litigation regarding the property in dispute was pending before the Civil Court and where the question of possession was actively involved and had even prima facie been adjudicated for the interim relief, parallel proceedings under section 145 of the Code of Criminal Procedure, were unwarranted. The argument, as it seems to me, is irrefutable. Learned counsel for the respondent has not been able to meet it by any means The Civil Court having decided prima facie that the petitoners were in possession of the land in dispute and it was essential to restrain the respondent from interfering in their possession, it was idle for the Sub Divisional Magistrate to have stepped in and cause dent to the Civil Court''s order not only by initiating the proceedings but by keeping them alive fully aware of the proceedings in the Civil Court. Thus, the proceedings in this situation would be nothing but an abuse of the process of the Court, requiring scuttling at this end, by invoking inherent powers of this Court under section 482 of the Code of Criminal Procedure.
Accordingly this petition is accepted the impugned orders Annexures P7 and P8 are quashed, leaving it open to the Sub Divisional Magistrate to take preventive steps regarding breach of peace if there is any apprehension in that regard. What is meant is that he can have resort to employment of section 107 of the Code of Criminal Procedure if the situation so warrants.
JUDGMENT accordingly.