Mst.Mehtabi vs Aziz Mir and Ors.

The short question which requires consideration in this revision petition is: Whether institution of a civil suit for injunction regarding the land which

is already attached under Sec. 145 of the Code Criminal Procedure would justify the dropping of the proceedings before the Magistrate seized of

the proceedings under Sec. 145 Cr, P.C. even when the civil court has yet to decide the question of possession ?

The back drop of the facts in which this question arises are the proceedings u/s 145 Cr. P. C. commenced on 941986 when while drawing up a

preliminary order the disputed land was also attached, While proceedings were in progress Aziz Mir, Sona Mir, Maqsud who constitute the

second party, instituted a suit for injunction on 2031985 in the court of Sub Judge Handwara. In this suit the following order came to be passed by

the SubJudge on 2031985:

Issue notice to other side for objections on or before 951985. In the meantime parties are directed to maintain status quo on spot with regard to

the suit property, till the next date of hearing & put up on due date.

This order was later on modified on 2931985 and reads as under:

2931985 Darkhast hiza aur report srishta mushida Kiyagia. Darkast dahinda sapurdar Police ke nam darkhast mazkura ke kuch hukam chahta hai

dave zere behes hai Na supardar freek hai aur na he police freek hai. Lehaza koi hukm sadar nahin kiya jata hai. Status quo ka hukum jo adalat

ne...... kia hai wo sirf mahbain freekaim mukadama per he havi hai. Lehaza darkhast hiza bagair kisi karwai ke kharaj kiya jata hai...Tehriri ul sadar

dastkhat sub judge Hindwara. Makrar ye savan supardari nisbet uper Tazkra kiya giya hai...Asal supardar freek mukdama hai.. supardar ne Agar

Arjae dava se kibal kabza rakba kiya hoga to kabza ke sat hukam zun ki tun halat mudakhlat na kar sakta hai. Tahrirul sadar..... dastkhat Sub

Judge Handwara:

A perusal of the aforesaid orders shows that the Civil court did not grant any interim relief of injunction Having failed to obtain any interim relief

from the civil court, the Secondparty applied to the Executive Magistrate for dropping the proceedings and on 981985, the impugned order was

passed dropping the proceedings and withdrawing the order of attachment,

The impugned order has been assailed by the petitioner (first party) in the proceedings inter alia on the grounds; that the order is illegal and is

required to be quashed as the judgment relied upon by the trial court for dropping the proceedings is not applicable to the facts of the case and that

the impugned order is against the mandate of Sec. 145 Cr. P.C.

Appearing for the petitioner Mr. Malik argued that the institution of a civil suit subsequent to the order of attachment passed u/s 145 Cr. P.C.

cannot be a ground to drop the proceedings, particularly. When the civil court has not issued any interm order determining possession. According

to him, the Supreme Court Judgment relied upon by the Magistrate is not applicable to the facts of the case because in the case before the

Supreme Court Criminal proceedings u/s 145 Cr. P.C. had been initiated subsequent in time to the decree of the civil court unlike in the present

case. For what follows on both the counts the petition must succeed.

In Ram Summer Puri Mahant Vs. State of U.P. and others, AIR 1985 SC 472, on which the reliance has been placed by the learned Magistrate it

was held:

when a civil litigation is pending for the property where in the question of possession is involved and has been adjudicated, initiation of a parallel

criminal proceeding under S. 145 of the Code, would not be justified. The 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.

The aforesaid observation unmistakably shows that the question of possession in that case had been adjudicated upon by the civil court and the

criminal proceedings were initiated at the instance of the party which had failed to the civil court as its suit for possession and injunction was

dismissed. It was in these circumstances that the aforesaid observations had been made. The factual position in the present case is entirely different

and the dictum therefore is clearly inapplicable.

The present case, however, is covered by the law laid down in Sujan Singh Vs. Sujan Singh and ors, 1970 UJ (S.C.) 75 where the facts were

as under :

One Sujan Singh s/o Jagan Nath Singh was in possession of a house. Another Sujan Singh S/o Bhairu Singh initiated proceedings u/s 145 Cr. P.

C. against the former. After passing the preliminary order, the Magistrate ordered attachment of the house. Sujan Singh s/o Jagan Nath Singh

applied to the Magistrate for dropping of the proceedings. However, while the proceedings were pending the said Sujan Singh s/o Jagan Nath

Singh filed a civil suit for permanent injunction against Sujan Singh s/o Bhairu Singh in which he also sought temporary injunction so that his own

possession might not be disturbed This temporary injunction was granted by the court. He then produced the order of injunction before the

Magistrate and asked that proceedings be stayed. The Magistrate dismissed the application and instead ordered the Tehsildar to take over the

house as a receiver. In revision, the learned Sessions Judge made a reference to the High Court reminding that appointment of receiver be set aside

The High Court of Rajasthan held that both the order of attachment of the house and the appointment of receiver were valid and that the civil

courts temporary injunction had no affect upon the proceedings before the Sub Divisional Magistrate. This order was challenged in the Supreme

Court where it was held:

In our opinion this case must go back to the SubDivisional Magistrate for decision of the proceedings before him. Those proceedings commenced

as far back as in 1967 and the question whether there is or there is not any apprehension of breach of peace will certainly have to be decided in

the light of the happening in the civil court. In the meantime we do not see any reason to order the staying the order of the High Court. It will be

open to the Sub Divisional Magistrate to consider whether the receiver should be continued or not but in any event, he shall not disturb the

possession of Sujan Singh son of Jagannath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings

under Sec 145 Cr. P.C. with the view to banding over the possession to the other side.

In the present case civil court has refused to grant injunction and therefore, it was all the more a reason for the magistrate to have continued the

proceedings and decide the question of possession as required by the section. In view of this the learned Magistrate clearly committed an error of

law by dropping the proceedings.

In 1977 Cr. L. J. 1029, their Lordships of the Punjab & Haryana High Court, while dealing with the scope of Sec. 145 Cr. P. C. during the

pendency of a civil suit, considered the following three types of orders of the civil court in this context:

(i) the appointment of Receiver to manage the properties in dispute;

(ii) restraining of one of the parties from interfering with the possession and other party during the pendency of the suit about which the civil court

prima facie feels satisfied; and

(iii) the maintenance of status quoabout the possession of the property during the pendency of the cases."" Leaving (i) and (iii) alone with which we

are not concerned, it is pertinent to refer to the (ii) type of cases and the observations of their Lordships in regard thereto:

In the second type of cases prima facie it appears that there may not be any scope for the criminal court to act under S. 145 Cr. P.C. because the

civil court prima facie feels satisfied about the possession of one of the parties to the litigation before passing the adinterim 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 adinterim 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, inspite of the stay order in his favour, leading to the apprehension of

the breach of the peace creating under Sec. 145 Cr. P.C. and attraction of its emergency powers under subsection (4), the Magistrate will then

step in, not to start parallel proceedings but to defend the orders of the civil court? by not allowing the aggressor to establish himself in possession

of the subject matter of 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 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 under S. 145 Cr. P.C. 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 agreement is accepted that when the Civil Court is seized of a case then the proceedings under 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 get the proceedings under S. 145

Cr. P.C. dropped. After this he can get the civil suit filed by him dismissed and thus perpetuate his wrongful possession.

I am in respectful agreement with the view that the proceedings under S. 145 Cr. P. C. cannot be frustrated by a party in the manner

enumerated above. Each case, therefore, will depend upon its facts and circumstances but the criminal court will not be justified to drop the

proceedings simply because civil court has in the meanwhile entertained a suit in respect of the same property even when it is yet to determine the

question of possession. the Bench while relying upon the dictum in Sujan Singh's case as also on AIR 1968 SC 1444 observed :

Ratio of both these judgments of the Supreme Court is that the pendency of the same matter between the same parties in civil court does not

mean the ouster of jurisdiction of the Executive Magistrate u/s 145 Cr. P.C. inspite of the stay order.

In the instant case, the civil court, as already noticed, had refused to grant any interim relief though even if it had, the proceedings, in view of

what has been noticed above could not be dropped because the civil suit was instituted subsequent to the drawing up of the preliminary order and

attachment of the property and, therefore, the criminal proceedings must be continued to restore possession of the property to the party found in

possession within two months from the date of the preliminary order unless there was an order to the contrary passed by the civil court later on.

Thus, for what has been said above, the order of the Executive Magistrate in dropping the proceedings is palpably wrong and against the law

and it is required to be quashed. I make the order accordingly and direct the parties to appear before the learned Executive Magistrate Handwara

on 30987, who shall proceed further in the matter.