Kulwant Singh vs State of Punjab

S.C. Mital, J.

By the impugned order Annexure P.1, the SubDivisional Magistrate, Samana, initiated proceedings under section 145 of the Code of Criminal Procedure and also passed order under section 146(1) of Code attaching the land in question and appointing S.H.O. Police Station, Samana, as receiver. The revision petition filed by Kulwant Singh and others was dismissed by the Additional Sessions Judge, Patiala. Feeling aggrieved, the present petition under section 482 of the Code has been preferred.

The salient facts are that Radha Kishan of the first party entered into agreement to sell the land in question to Kulwant Singh and others (second party). It was said to be in the possession of Manak Chand and others (third party) who claimed to be tenants. As dispute arose between the three parties about the possession, the first party filed a suit for mandatory injunction in which the third party was not impleaded. Be that as it may, the suit was dismissed. The second party''s suit for specific performance of the agreement to sell against the first party is pending. During the pendency thereof the Civil Court ordered that second party, who claims to be in possession, be not dispossessed. Again, in this suit the third party has not been impleaded. In the situation, the third party filed a suit for which is also pending. Therein, the Civil Court has ordered that status quo be maintained. Apprehending breach of the peace, the police reported the matter to the SubDivision Magistrate, Samana who upon a consideration of the entire matter and the hearing the learned counsel for the three parties, passed the impugned order.

It may be said that the second party challenged the legality of the order on the ground that such a composite order under sections 145(1) and 146(1) of the Code was not maintainable. The matter was referred to a larger Bench. It having been held by the Division Bench that the challenge was not valid, the matter has been sent back to the Single Bench.

As regards the next question during the pendency of the abovementioned civil suits, the SubDivisional Magistrate had no jurisdiction to invoke the provisions of section 145 of the Code, suffice it to say that the authorities including Mohinder Singh v. Shri Dilbagh Rai, 1976 PLR 803 (DB) were considered by the Magistrate in the impugned order and the objection was rightly overruled. All the same, learned counsel for the second party cited some other rulings of learned Single Judges. Suffice it to say here that these three rulings do not run counter to the wellsettled view of this Court that pendency of a civil suit between the parties does not operate as a bar to the proceedings under section 145 of the Code of Criminal Procedure. However, in the given facts of those cases, owning to the pendency of the suits and the orders passed by the Civil Courts, the learned Judges expressed the view that continuance of proceedings under section 145 of the Code was not called for. As none of these precedents has any bearing on the facts of the case in hand, I do not want to burden this judgment with these citations.

Before proceedings with the last contention of the learned counsel for the second party, it deserves mention that the learned counsel for the third party raised an objection that second revision petition against the impugned order in this Court was clearly barred by the provisions of subsection (3) of section 397 of the Code of Criminal Procedure. In the situation, the extraordinary powers of this Court under section 482 of the Code cannot be lightly invoked. To meet this situation, learned counsel for the second party was at pains to argue that the SubDivisional Magistrate has not referred to any of the ingredients of subsection (1) of section 146 of the Code for passing the attachment order. On the other hand, learned counsel for the third party rightly contended that the impugned order read as a whole clearly makes out that the Magistrate was unable to satisfy himself as to which of the parties was in possession of the land at the relevant time. That being so, I decline to invoke the inherent powers of this Court.

In the result, this revision petition fails and the same is hereby dismissed.