Ishar Dass vs Gauri Lal

The sole question upon which the decision of this reference turns is : is an application u/s 145 Cr. Pr. Code maintainable when the dispute in

regard to possession of the land is already pending disposal before a civil court in which it has also issued a temporary injunction restraining one

party from interferring with the possession of the other party over it.

The petitioner filed an application u/s 145 Cr. Pr. Code against the respondent before Tehsildar Executive Magistrate, Bhadarwah, on

1471979, alleging that the latter was trying to forcibly interfere with his possession over the proprietary land. On this, preliminary order was also

passed on the same day. The parties filed their claim and counter claims and also supported the same by affidavits and other documentry evidence.

The case was later on transferred to S. D. M Bhadarwah. At the time of final arguments before him, it was urged on behalf of the respondents that

a civil court being already seized of a suit relating to the same subject matter, and the said court having also issued a temporary injunction that was

still in force, proceedings u/s 145 were not maintainable. This contention having prevailed with him, the learned S. D. M. finally disposed of the

application by his order dated 251981 in these words :

For the reasons stated above, I have reached to the conclusion that as a temporary injunction has been granted by a civil court, this court has no

jurisdiction to make any order u/s 145 Cr. Pr. Code till the temporary injunction is in force. These proceedings u/s 145 Cr. Pr. Code are therefore,

dropped.

The petitioner challenged the aforesaid order in revision before Sessions Judge Bhadarwah, who being of the opinion that the learned S. D. M.

could not have dropped the proceedings except on the grouud that breach of peace had ceased to exist, has made a raference to this court that the

order of the S, D. M. may be set aside and he be directed to conclude the proceedings in accordance with the provisions of Section 145 giving

due consideration to the evidence produced by the parties. According to the learned Sessions Judge, once proceedings u/s 145 have been

commenced, the Magistrate is bound to conclude them in accordance with the procedure laid down in the section and cannot drop them midway

except on the ground that the breach of peace which originally existed has ceased to exist He cannot drop the proceedings merely because the

same disputeis subjudice before a civil court in a civil suit that has been instituted prior to the commencement of those proceedings.

The raison detre of Section 145 is to prevent breach of peace that owes its genesis to dispute between the parties relating to possession of ""land

or water boundary thereof"" It is the existence of breach of peace that confers jurisdiction upon the Magistrate to deal with the rival claims of the

parties concerned regarding possession of such land, which in its absence would be the exclusive domain of a civil court. The final order that may

be passed in a proceeding u/s 145 is therefore, always subject to the decision of a competent civil court, which alone is the final arbiter in the

matter. It necessarily follows that the civil court's decision, whether it determines the conflicting rights of the parties in regard to possession of the

land before or after the commencement of proceedings u/s 145, has to be respected by the Magistrate and the apprehension of breach of peace

prevented by him by upholding its decision as a civil court alone can determine the rights of the litigating parties. Mere pendency of a civil suit will

of course not be enough to disentitle the Magistrate from arriving at his own independent finding as to who out of the contesting parties was in

actual possession of the land oa the date of the preliminary order as by not doing so he would be indeed failing in his duty to prevent the breach of

peace for which alone Sec. 145 has been enacted. But, where the civil court has already decided the question of possession, the Magistrate must

uphold such finding unless there has been a sufficient time gap between that finding and the commencement of proceedings u/s 145 and new rights

appear to have come into existence during the intervening period.

Furthermore, finding of a civil court which has been recorded by it even for giving interim relief is as such binding on the Magistrate as a decree

passed by it on conclusion of the trial of the suit. Where, therefore, a civil court has issued a temporary injunction in favour of party to a suit,

restraining the other party from interferring with its possession over the suit land, that finding is as much binding on the Magistrate as the finding

recorded at the conclusion of the trial. The Magistrate while such an injunction is still in force, cannot start or continue parallel proceedings u/s 145

merely to end them up with repeating the same finding as has been recorded by the civil court. If he is bound to ultimately uphold that finding,

which in fact he is, he should either stay his hands off and leave the civil court to enforce its own order by taking coercive measures against the

party in fault, or should proceed u/s 107 Cr. Pr. Code against the said party, in case he is of the opinion that to do so would be necessary for

prevendting breach of peace. Commencement or continuance of parallel proceedings u/s 145 in such a case will be clearly unnecessary and

unwarranted. There is ample authority for this view. See Imambu Vs. Hussembi AIR 1960 Mysore 20, Shankarappa Gurappa Kirahagi Vs.

Ramanagowda Sahehagowda Patil, AIR 1969 Mysore 297, Bhima Nayak and others Vs. Panjashaw Durgah and others, 1979 Cr. Law Journal

(Orrissa) 1200, and K. Amaranath Vs. R. Manjunath and another, 1977 Cr. L. Journal (NOC) (Kant.) 216.

The temporary injunction issued by the civil court in the instant case being still in force, the learned S. D. M. was justified in dropping the parallel

proceedings u/s 145. The view taken by the learned Sessions Judge that he could not have done so, is untenable. The reference is accordingly

rejected.