Jagdish Alias Jagdish Kumar vs Sub Divisional Magistrate, Panipat and Others

Pritpal Singh, J.—The Respondents Nos. 2 to 4, namely, Ashok Kumar Lakhwinder Singh and Parduman Kumar filed a civil suit for injunction in the Court of Subordinate Judge, Panipat, on the allegations that they are in peaceful possession of the land in dispute and the present Petitioner Jagdish Kumar has threatened to dispossess them. Along with the plaint an application for temporary injunction was also moved restraining the Petitioner from interfering in their possession. The trial Court granted such a temporary injunction to the Respondents but on an appeal the learned District Judge converted the relief to that of status quo. The appellate Court was of the opinion that at that stage of the suit proceedings it could not be ascertained as to which of the parties was in actual possession of the land. The parties were, therefore, ordered to maintain status quo during the pendency of the suit.

The Respondents Nos 2 to 4 also initiated proceedings u/s 145 of the Code of Criminal Procedure (hereinafter called ''the Code'') on a police report in the Court of Sub Divisional Magistrate, Panipat, Respondent No. 1. The Sub Divisional Magistrate passed a preliminary order u/s 145 of the Code (Annexure P. 3) and also attached the disputed land u/s 146 of the Code (Annexure P.4).

In this petition u/s 482 of the Code, the Petitioner has sought quashing of the proceedings under Sections 145 and 146 of the Code taken by the Sub Divisional Magistrate, Panipat, on the ground that during the pendency of the aforesaid civil suit these parallel criminal proceedings cannot continue.

A Division Bench of this Court in Mohinder Singh v. Shri Dilbagh Rai (1976) 78 P. L. R. 803: (1976) 3 Cr. L. T. 530, authoriatively held that the mere pendency of a civil suit regarding the same subject matter between the parties does not bar the criminal Court from exercising jurisdiction u/s 145 of the ode. The learned Judges observed as follows:

In such cases involving the disputes of possession in my view, three types of orders can be envisaged to be passed by the civil Courts ; (i) the appointment of receiver to manage the properties in disputes: fin the restraining of one of the parties from interfering with the possession of that other party during the pendency of the suit; about which the civil Court prima facie feels satisfied and (iii) the maintenance of status quo about the possession of the property during the pendency of the case.

If a civil Court appoints a receiver then there is no possibility of any dispute of the possession as the receiver gets into the possession of the property on behalf of the Court and is to deliver it to that party in whose favour the Court ultimately decides. In such cases there cannot be any possibility of the dispute giving rise to the proceedings u/s 145, Criminal Procedure Code, as the Court removes apprehension of the breach of peace by putting the property in its custody.

In the second type of cases prima facie it appears that there may not be any scope for the criminal Court to act u/s 145, Criminal Procedure Code, because the Civil Court prima facie feels satisfied about the possession of one of the parties to the litigation before passing the ad interim order in his favour defending his possession. On giving a deeper thought I do not think that this jurisdiction of a criminal Court be restricted. Cases are not wanting where a party obtains an ad interim order in his favour to the effect that during the pendency of the suit the other party will not interfere in his possession. If the other party uses force to dispossess him, in spite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings u/s 145, Criminal Procedure Code, and attraction of its emergency powers under Sub-section (4), the Magistrate will then stop in, not to start parallel proceedings but to defend the orders of the civil Court but not allowing the aggressor to establish himself in possession of the subject matter of the dispute in violation of the orders of the Court. In such a situation if the Magistrate acts then he adds the weight of the executive authority to respect the order of the civil Court for maintenance of status quo and does not violate any law. Yet another type of cases can be anticipated where one may enter into wrongful or forcible possession of the property leading to proceedings u/s 145, Criminal Procedure Code. He may approach a civil Court and obtain an order in his favour that he may not be dispossessed from the property or for the maintenance of status quo. If this argument is accepted that when the civil Court is seized of a case then the proceedings u/s 145, Criminal Procedure Code, cannot continue and are to terminate, then armed with the order of the civil Court he may go to the criminal Court and the proceedings u/s 145, Criminal Procedure Code, dropped After this he can get the civil suit filed by him dismissed and thus perpetuate his wrongful possession.

The third type of cases, that is, maintenance of status quo during the pendency of the civil suit is a situation in which a civil Court does not prima facie feel satisfied about any party being in possession of the subject-matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or any one of them to get into actual possession. If the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace if they act in such circumstances and the Magistrate attaches the "subject matter of the dispute u/s 145, Criminal Procedure Code, then he would be acting to defend the maintenance of the status quo as ordered by the civil Court.

That present case falls under the third type of cases. Here maintenance of status quo during the pendency of the civil suit has been ordered because the Court is not prima facie satisfied about any party being in possession of the land in dispute. In this situation if the Magistrate, from the police report, is satisfied that there is liklihood of breach of the peace, he is competent to proceed under Sections 145 and 146 of the Code. Thus, according to the law laid down by the Division Bench in Mohinder Singh''s case (supra), the impugned proceedings under Sections 145 and 146 taken by the Sub Divisional Magistrate, Panipat, cannot be quashed simply because of the pendency of a civil suit filed by Respondents Nos. 2 to 4 regarding the same land.

Reliance has been placed by the learned Petitioner''s counsel on Ram Sumer Puri Mahant Vs. State of U.P. and Others, . In that case the Plaintiff''s suit for injunction was dismissed. The Plaintiff''s appeal was pending before the appellate Court. Some close relations of the Plaintiff intiated proceedings u/s 145 of the Code regarding the property in dispute. In these circumstances the Supreme Court 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 intiating a parallel criminal proceeding u/s 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 2-5 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.

These observations of the Supreme Court do not come in conflict with the law laid down by this Court in the case of Mohinder Singh (supra). It has not been ruled by the Supreme Court that in every case where a civil suit is pending regarding the same subject-matter, criminal proceedings u/s 145 of the Code cannot continue. The Plaintiff''s suit had been dismissed and the appeal against dismissal was pending. Question of possession was involved which had already been adjudicated upon by the trial Court. It is in these circumstances that the Supreme Court observed that the initiation of criminal proceedings u/s 145 at the instance of the close relations of the Plaintiff could not be permitted. This judgment of the Supreme Court is, thereof, of no help to the Petitioner. In the instant case none of the parties is found to be in prima facie possession of the land in dispute by the Civil Court. In such circumstances the proceedings taken by the Sub Divisional Magistrate, Panipat, under Sections 145 and 146 of the Code cannot be deemed to be parallel proceedings envisaged by the Supreme Court.

For the above reasons, there is no merit in this petition an it is hereby dismissed.