K.S. Magdoom vs N.S. Jalal and another

Padmini Jesudurai, J.—The petitioner, who belonged to ''B'' party in M.C. No. 36 of 1985 instituted by the Sub-Divisional Magistrate and Revenue Divisional Officer, Cheranmahadevi, under S. 145(1) . Crl.P.C. invokes the inherent powers of this Court under S. 482, Crl. P.C. to quash the above proceedings on the ground that the civil Court has already been seized the matter and that, therefore, continuing parallel proceedings before the Executive Magistrate is in violation of the law laid down by the Supreme Court.

Facts briefly are: house bearing Door No. 61, Periyapallivasal Street, Kallidaikurichi, Ambasamudram Taluk, is the property in dispute between the petitioner and the first respondent. Admittedly, the above property belongs to the first respondent. It is the case of the petitioner that the same had been orally leased out to him and he was in possession of the same. The above oral lease is denied by the first respondent. According to the second respondent, who is the concerned Inspector of Police, on 13.4.1985, on a complaint given by the father-in-law of the first respondent, a case in Crime No. 123 of 1985 was registered against the petitioner and his party men for offences under Ss. 147, 148, 380, 448, 457 and 506(2), I.P.C. For having broken the door of the house and for committing theft of the articles kept inside the house. As against that, the petitioner has given an application to the police that the people belonging to the first respondent''s party were attempting to commit theft from the disputed house, which was in his possession and police protection was immediately required. On the basis of these facts, the second respondent moved the Executive Magistrate, Cheranmahadevi, for initiating proceedings against the petitioner and the first respondent. Accordingly, the Executive Magistrate passed the impugned order attaching the property and directing the ''A" party as well as the ''B'' party not the enter into the possession of the property under dispute until the attachment continues.

Thiru V. Sairam, learned counsel for the petitioner, contended that the property had always been in his possession on the basis of an oral lease, that it was the first respondent who was trying to dispossess him and that, and therefore, the impugned order restraining both the parties from entering into the house should not be sustained in view of the fact that the dispute between the parties had already been taken to the civil court and on 16.6.1986 he had filed O.S. No. 341 of 1986 before the District Munsif''s Court, Ambasamudram, against the first respondent, and the Tahsildar, Ambasamudram had been appointed as the Receiver and who had taken possession of the house. A copy of the plaint has been made available to this Court and the same shows that the petitioner rests his claim on an oral lease in August, 1983. Reference is also made to the alleged attempt made by the persons managing the property on behalf of the first respondent to take forcible possession of the house from the petitioner. It is also mentioned that the impugned order has been passed and that the proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act have also been taken. According to the first respondent the petitioner is said to have surrendered possession of the house to him and had executed vathasthu on 15.6.1985 to evidence the same. The petitioner, however, would allege that the said vathasthu is a rank forgery and he had never executed the same and he had not surrendered possession. It is, therefore, for the Civil Court to go into all these questions, and find out whether the vathasthu was in fact executed and if so what would be the legal effect of that vathasthu. Once the matter is seized by the civil court and the dispute involves determination of the respective legal rights of the parties, it would not be open to the Executive Magistrate to go into these very same issues and try to decide the legal issues involved. As the Supreme Court has observed there should not be parallel proceedings.

Reference may be made to the decision in Ram Sumer Puri Mahant Vs. State of U.P. and Others, , wherein the Supreme Court, while the civil court had passed a decree, which was challenged in the appellate court and the appeal was pending, quashed the proceeding under S. 145, Crl.P.C. between the same parties in respect of the same property, not only on the ground that the decree of the civil court was binding on the parties, but also on the ground that when the matter is seized of by the civil court there should be no parallel proceedings under S. 145, Crl.P.C. Finally, the Supreme Court observed that it would be open to the parties to seek necessary relief from the appellate court, by way of interim applications. The decision clearly shows that when the civil litigation is pending between the same parties in respect of a land, parallel proceedings under S. 145, Crl. P.C., ought not to be conducted. Whatever relief that could be obtained under S. 145. Crl. P.C., would also be available to the parties in the civil court. Appointment of a Receiver to manage the property pending the civil suit or an order of injunction protecting the possession of either party, would all be interim relief''s that could be sought for and obtained in a civil court. Following the above decision of the Supreme Court, I have no other option, except to terminate the proceedings commenced by the Executive Magistrate. Learned Public Prosecutor is not in a position to tell the Court as to whether there is any apprehension of breach of peace. He has stated that he has not received any instructions from the second respondent. The property is in the possession of the Tahsildar, Ambasamudram by virtue of the order passed by the Executive Magistrate in these proceedings. Since it is not known as to whether there is any apprehension of breach of peace and since neither party has chosen to obtain any interim order in the civil court, the Tahsildar, Ambasamudram, who is in possession of the property will continue to be in possession, till either of the parties get an interim order regarding interim possession from the civil Court or in the absence of any such order till the judgment is pronounced in O.S. No. 341 of 1986 before the District Munsif''s Court, Ambasamudram.

In the result, the petition is allowed and the proceedings in M.C. No. 36 of 1985 pending before the Sub-Divisional Magistrate and Revenue Divisional Officer, Cheranmahadevi are hereby quashed.