Mukand Singh and Others vs Sub-Divisional Magistrate and Others

V.K. Jhanji, J.—This petition u/s 482, Cr. P.C. has been filed by one Mukand Singh and his three grandsons namely Surjit Singh, Amarjit Singh and Gurdeep Singh sons of Naranjan Singh, for quashing of order dated 13-7-1995 passed by Sub-Divisional Magistrate,Talwandi Sabo, initiating proceedings u/s 145, Cr. P.C. on a complaint made on behalf of respondents 2 and 3, and the order appointing Tehsildar, Talwandi Sabo, as Receiver of the land in dispute.

Quashing has been sought on three grounds, namely, (i) that civil litigation in regard to the land in dispute is pending on one side between Mukand Singh and Ajit Singh etc. and on the other side, suit has been filed by respondents against petitioners 2 to 4. Mukand Singh filed suit on 4-4-1995 for declaration and injunction alleging that Mutation No. 2335 in favour of respondents 2 and 3 on the basis of writing dated 3-1-1995 allegedly to be an exchange is null and void and not binding on him. An application was filed by him under Order 39, Rules 1 and 2, Code of Civil Procedure, in which ex parte injunction order was passed on 5-7-1995 restraining them from taking forcible possession from Mukand Singh. The other suit, a reference of which has been made by counsel for the petitioners, is by respondents 2 and 3 filed on 6-5-1995 against petitioners 2 to 4, restraining them from interfering in their possession. In that suit, order of status-quo has been passed by the Civil Court. It was during the pendency of these two suits that complaint dated 2-7-1995 was filed before the Sub Divisional Magistrate for initiating proceedings u/s 145, Cr. P.C. and order dated 13-7-1995 was passed.

Counsel for the petitioners has contended that parallel proceedings in regard to question of possession of land are pending and therefore, initiation of proceedings u/s 145, Cr. P.C. is an abuse of process of the Court. In this regard, he has cited judgments in Ram Sumer Puri Mahant Vs. State of U.P. and Others, and 1994 (3) RCR 217. Counsel has further contended that Mukand Singh, petitioner No. 1 was not made a party to the proceedings u/s 145, Cr. P.C. and he being a necessary party and not having been joined as such, the proceedings have to be quashed on this score alone. In support of this proposition, he cited 1990 Cri.LR 255 : ILR (1893) Cal 29 and ILR (1901) Cal 446. Finally, he contended that order of the Sub-Divisional Magistrate is a non-speaking one and has been passed without application of mind and therefore, this petition has to be allowed and the proceedings have to be quashed.

Notice of the petition was issued to the respondents. Respondents 2 and 3 have filed reply.

Having heard the learned counsel, I am of the view that the petition has to be dismissed. In this petition u/s 482, Cr. P.C. the petitioners are invoking inherent powers of this Court to quash proceedings u/s 145, Cr. P.C. and the order passed thereon. The inherent powers can be exercised in favour of a party who comes to the Court with clean hands and only to meet the three situation contemplated u/s 482, Cr. P.C. i.e. (i) to give effect to any order under the Cr. P.C; (ii) to prevent abuse of process of any Court; and (iii) to secure the ends of justice. A party who has concealed material facts cannot seek any indulgence of this Court because that would be encouraging the abuse of its process. The present petition was filed on 30-7-1995 and came up for hearing on 2-8-1995 when this Court, on the prayer made by counsel for the petitioners, stayed the proceedings and also order dated 13-7-1995 appointing Tehsildar, Talwandi Sabo, as Receiver. In the petition, petitioners failed to disclose that applicatiop under Order 39 Rules 1 and 2 Code of Civil Procedure, filed by Mukand Singh in his suit, has finally been disposed of on 27-7-1995 by the learned Sub-Judge. On appreciation of material on record, the learned Sub-Judge found as follows :-

I have given my careful consideration to the submissions of both sides, gone through the above authorities cited by the Id. counsel for the defendants-respondents. Plaintiff has claimed his ownership to the suit land on the basis of entries in jamabandi and has denied his execution of writing dated 3-1 -95. A perusal of the plaint reveals that the plaintiff has not claimed his ownership qua the suit land but he has simply stated that mutation No. 2335 is illegal, null and void. On the other hand, the defendants have placed on record copy of writing dated 3-1-95. This document is executed by the plaintiff as well as the defendants and is attested by Tehal Singh Sarpanch and Karam Singh Nambardar. Mutation No. 2325 is sanction in the presence of the plaintiff as well as the defendants and this mutation was sanctioned on the basis of writing dated 3-1 -95. Rapt roznamcha No. 193 is also placed on the file. A perusal of this document is also shows that the plaintiff has admitted before Halqa Patwari regarding the execution of writing dated 3-1-95 and regarding compliance of this writing. Case of the defendants is that plaintiff has exchanged the suit land with their land measuring 119 kanals 3 marlas. Copy of mutation No. 1536 sanctioned in the name of the plaintiff qua land measuring 119 kanals 3 marlas situated at village Singhpura previously owned by defendants has also been placed on record. A rapt roznamcha No. 161 was lodged with the Patwari Halqa Dharampura regarding the delivery of possession of land previously owned by the defendants now transferred to the plaintiff. A perusal of this document also goes to show that the matter was reported to Patwari Halqa by the plaintiff as well as the defendants in the presence of Harnaik Singh Nambardar and Member Panchayat Ajaib Singh. Correction in latest Khasra girdawari Nos. has also been made in the name of the defendants. All these documents goes to show that the writing dated 3-1-95 was acted upon and possession were transferred. Moreover, plaintiff has neither disclosed the lodging of report with Patwari Halqa nor produced any copy of its documents. Execution of these documents was within the knowledge of the plaintiff and the plaintiff has intentionally withheld these documents. Moreover, plaintiff has also concealed the material facts from this Court.

In the second suit, i.e. suit filed by respondents 2 and 3 against petitioners 2 and 3, the Sub Judge had also found that respondents 2 and 3 i.e. plaintiff therein, are in possession of the suit land and in case they are dispossessed forcibly, they can suffer an irreparable loss. In para 6, he concluded as follows:-

As a result of my above discussion I have come to the conclusion that the plaintiffs are in possession of the suit land and in case they are dispossessed forcibly and except in due course of law, they can suffer irreparable loss. Therefore balance of convenience is also in favour of the plaintiffs-applicants and prima-facie case is also made out in favour of the plaintiffs-applicants. Consequently, the defendants are restrained from dispossessing the plaintiffs from the suit land forcibly and except in the due course of law till the disposal of the suit.

Not only these two orders have been concealed, but the petitioners have also suppressed that in pursuance of the order of Sub Divisional Magistrate, Tehsildar Talwandi Sabo, took possession of the land on 14-7-1995 as Receiver and a report in this regard was entered in the Rapat Roznamchan for the year 1994-95. It also deserves to be mentioned that respondents 2 and 3 had challenged the order impugned in this petition, before the Additional Sessions Judge, Bhatinda, but there the petition was got dismissed as withdrawn. Though the counsel for the petitioners has contended that since the revision petition was got dismissed as withdrawn in order to file petition u/s 482 Cr. P.C. in this Court, it was not necessary to make a mention of this fact in the present petition, but I do not agree with this submission of counsel for the petitioners. The petitioners were required to disclose/make mention of each and every fact having a bearing on the controversy between the parties. The proceedings, a reference of which has been made in the earlier part of this judgment, were between the same parties and therefore, petitioners were required to disclose the orders of the Civil Court passed in those proceedings before a prayer was made for staying proceedings u/s 145 Cr.P.C. If all these facts had been brought to the notice of this Court in the petition, I am sure this Court would not have passed an order staying the operation of order of Sub-Divisional Magistrate which had already been put into effect. As I have come to the conclusion that the petition has to be dismissed solely on the ground of suppression of material facts, it is not necessary to go into the merits of contentions of counsel for the petitioners.

Consequently, this petition shall stand dismissed with costs. Costs are quantified at Rupees 5000/- to be paid to respondents 2 and 3.