Khushal Singh vs Mohinder Singh and another

S. S. Grewal, J.

This revision petition is directed against the order of Sessions Judge, Ferozepore, dated August 24, 1993 whereby the order of the Sub Divisional Magistrate, Fazilka dated 31st July, 1992 for proceeding under Sections 145 and 146 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and the application of the present petitioner for dropping the proceedings was dismissed.

In brief facts relevant for the disposal of this case are that Gurdev Kaur entered into an agreement to sell 12 Kanals of land (out of her entire holding of 20 Kanals) situated in village Lamochar Khurd at the rate of Rs. 45,000/ per Killa and received Rs. 22,000/ as earnest money. The sale deed could not be executed and registered as dispute arose between the parties. Gurdev Kaur filed civil suit and obtained stay from the Court of Sub Judge, at Abohar, whereas, Mohinder Singh, Gian Singh and Khushal Singh are alleged to have taken possession of the land in dispute even though it was in the name of Gurdev Kaur. Mohinder Singh and Gian Singh filed suit in the Civil Court and the cases before the Civil Court were pending between the parties who asserted their rights in the land in dispute. There was dispute about the possession between the parties and as such police initiated proceedings under Section 145 of the Code;

While the proceedings under Sections 145 and 146 of the Code were pending before the Sub Divisional Magistrate, Mohinder Singh moved an application that he was in possession and that the proceedings may be dropped. This application was opposed by Gurdev Kaur.

The learned counsel for the parties were heard.

One of the reasons given by the learned Sessions Judge for passing the impugned order is to the effect that civil suits between the parties i.e. one filed by Mohinder Singh against Gurdev Kaur and another filed by Gurdev Kaur against Mohinder Singh were pending and since the Court was seized of the matter regarding the dispute over possession, therefore, proceedings under Section 145 of the Code cannot proceed.

In Ram Sumer Puri Mahant v. State of UP. and others, AIR 1985 SC 472, it was observed that in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when question of 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 the 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

While explaining the decision in Ram Sumer''s case (supra), it was observed by the apex Court in case Jhunamal alias Devandas v. State of Madhya Pradesh and others, AIR 1988 SC 1973, the ratio of the said decision is that 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 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.

Since the civil litigation between the parties was already pending according to the impugned order passed by the learned Sessions Judge, and the fact that dispute about question of possession in proceedings under Section 145 of the Code relates to a much later period than the one in respect of which civil suits were pending, it cannot be held positively at this stage that the parallel proceedings between the parties concerning the dispute about possession under Section 145 of the Code before the Court of Sub Divisional Magistrate cannot proceed, in view of the pending proceedings in the civil Court relating to the land in dispute. However, the decision of the Sub Divisional Magistrate in such proceedings would be subject to the final decision of the Civil Court.

The learned counsel for the respondents stated at the bar that both the civil suits had already been decided before the learned Sessions Judge passed the impugned order in this case. The fact remains that at the time when the proceedings under Sections 145 of the Code were initiated or even at the time when the learned Sub Divisional Magistrate passed the order for continuing the proceedings under Section 145 and 146 of the Code, the proceedings between the parties in the Civil Court were still pending. The learned Sessions Judge has thus erred in law in setting aside the order of the Sub Divisional Magistrate dated 31.7.1992.

Another important aspect of the case is that the revision petition before the learned Sessions Judge was directed against an interim/interlocutory order passed by the Sub Divisional Magistrate wherein the latter had merely dismissed the application of Mohinder Singh and another for dropping proceedings under Sections 145 and 146 of the Code and directed continuation of such proceedings. On the face of it, the order passed by the learned Sub Divisional Magistrate dated 31.7.1992 was an interlocutory order and no revision against the said order would lie before the Sessions Judge in view of sub section (2) of Section 397 of the Code.

For the foregoing reasons, the impugned order passed by the learned Sessions Judge, Ferozepure cannot be legally sustained, the same is hereby set aside and the learned Sub Divisional Magistrate is directed to dispose of this case expeditiously according to law and procedure. This petition is accordingly allowed. Both the parties, through their counsel, are directed to appear before the Sub Divisional Magistrate, Fazilka on 17.1.1994.