Gurmej Singh vs State of Haryana

V.S. Aggarwal, J.

This is a petition filed by Gurmej Singh (hereinafter described as ''the petitioner'') under Section 482 of the Code of Criminal Procedure seeking quashing of the impugned orders dated 2.5.1996 passed by the Executive Magistrate, Panipat under Sections 145 and 146 of the Code of Criminal Procedure.

The relevant facts alleged by the petitioner are that respondent No. 2 was owner in possession of agricultural land measuring 42 Kanals 9 Marlas. In August, 1989 respondent No. 2 entered into an agreement with the petitioner to sell 32 Kanals out of the above said land. Rs. 1,74,000/ were paid as earnest money. It is asserted that petitioner was put in possession of the land measuring 32 Kanals. The remaining amount of Rs. 30,000/ was to be paid at the time of registration. Petitioner claims to be in continuous cultivation possession over the said land. In December, 1989 the petitioner constructed a pucca residential house and cattleshed in Khasra No. 114/7. He also made an application to the Tehsildar for certification of residential house. It was certified that petitioner has constructed residential house.

Respondent No. 2 is alleged to have filed a civil suit accompanied by an application for adinterim injunction. The learned Subordinate Judge, Panipat on consideration of the application of respondent No. 2, passed an ex parte temporary injunction in favour of respondent No. 2. The petitioner had put in appearance in the civil court and the case had been adjourned. After adinterim injunction had been granted, respondent No. 2 filed an application before the Executive Magistrate under Section 145 of the Code of Criminal Procedure without disclosing the fact that application for temporary injunction is pending before the civil court. A report was received and the learned Executive Magistrate passed an order appointing Station House Officer, Police Station, Madlauda as Receiver.

Petitioner''s grievance and the ground seeking quashing of the order is that he is not in cultivating possession of the property in dispute. Once the civil suit is pending and dispute of possession is before the civil court, the Executive Magistrate could not take up the same issue and pass orders under Section 146 Cr.P.C.

In the reply filed, the petition has been contested by the State. The Officerincharge, Police Station, Madlauda denies knowledge that petitioner has constructed pucca residential house but states that keeping in view the dispute, the Executive Magistrate was justified in passing the order. The City Magistrate on behalf of respondent No. 1 also had filed the reply who justifies the order passed under Sections 145 and 146 Cr.P.C.

Respondent No. 2 in his separate reply asserts that petitioner had filed an application for correction of Khasra Girdawari. The said application was dismissed by the Assistant Collector IInd Grade on 28.2.1995. The impugned order was stated to be an interlocutory order and it is pointed that in such like cases, it is improper for this court to exercise inherent powers. It is denied that petitioner is in possession of the property.

The main question agitated was that since civil court is seized of the matter, proceedings under Sections 145 and 146 Cr.P.C. could not be initiated and the impugned orders could not have been passed. To this respondent''s learned counsel argued that adinterim injunction had been passed in favour of respondent No. 2 and, therefore, the petitioner indeed can have no grievance when the impugned order is passed by the Executive Magistrate.

In the peculiar facts, the contention of the petitioner must prevail. It is an admitted fact that dispute is pending before the civil court in the suit filed by respondent No. 2. The application for adinterim injunction is still pending. When such is the case, then Supreme Court has held that proceedings under Section 145 can well be quashed. In the case of Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) RCR 43 the Supreme Court considering this aspect held :

"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 25 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed."

Same view prevailed with the Supreme Court in the case of Dharampal and others v. Ramshri and others, 1993(1) RCR 696. The latest view of this court is on the same lines and in the case of Jasbir Singh v. State of Haryana, 1997(1) RCR 573 (Crl. Misc. No. 13267M) of 1995, decided on 3.1.1997) this Court keeping in view that civil suit was pending felt that multiplicity of litigation is not in public interest. The net result is that once the civil suit is pending and question of possession can well be gone into by the said Court, it was improper for the executive magistrate to pass the impugned order. The same was not called for. If there is any apprehension of breach of peace, the executive magistrate can take resort to proceedings under Sections 107 and 151 Cr.P.C. Consequently, the impugned orders must be quashed.

For these reasons, the petition is allowed. The impugned orders are quashed. It is, however, clarified that nothing said herein is any expression of opinion that who is in possession of the property or corelated matters pending before the civil court.