Narinder Kumar vs Sub Divisional Magistrate, Karnal

V.S. Aggarwal, J. (Oral)

Narinder Kumar petitioner seeks quashing of the order passed by the Sub Divisional Magistrate, Karnal in proceedings under Section 145 of the Code of Criminal Procedure whereby the land in dispute has been attached.

The relevant facts alleged are that petitioner had two brothers Rajinder and Surinder. Surinder is respondent No. 6. They were having joint land measuring 113 Kanal19 Marlas comprised in Khewat No. 61, Khatauni No. 75, Rectangle No. 4, Khasra Nos. 21, 22, 23, 24/1, Rectangle No. 18, Khasra Nos. 1, 2, 3, 4, 7/1, 8/2, 9/1, 13, 14, 16, 18/2, Rectangle No. 19, Khasra Nos. 19/2, 20, 26 and Ractangle No. 140 situated in village Panori, Tehsil and District Karnal. Each of them had 1/3rd share. Rajinder got land in khewat No. 61, Khatauni No. 75, Rectangle No. 4 situated in village Panori. He was unable to cultivate the land himself and is alleged to have given the same to the petitioner for cultivation on payment of 1/3rd batai. An application even had been filed before the Assistant Collector, Gharaunda for correction in favour of the petitioner. Rajinder suffered a decree in favour of respondent No. 6 on 6.11.1993. The mutation was accordingly sanctioned in favour of Surinder Kumar respondent No. 6. It is contended that respondents 2 to 5 fabricated certain documents and stated to have executed at Delhi. Since then the whereabouts of Rajinder are not known.

The petitioner contends that respondents thereafter continuously tried to take forcible possession of the land in question. The proceedings under Section 107/151 Cr.P.C. had been initiated. The private respondents were admitted to bail. The respondents continuously tried to take forcible possession. An application was filed in the form of a Kalandra for taking action under Section 145 Cr.P.C. A preliminary order was passed by the Sub Divisional Magistrate. Reply was filed by the respondents and thereupon the Sub Divisional Magistrate dropped the proceedings.

By virtue of the present petition the order passed by the Sub Divisional Magistrate dropping the proceedings is challenged alleging that petitioner is in possession. Merely because the civil suits were pending is no ground to drop the proceedings under Section 145 Cr.P.C.

The same has been contested. In the reply filed by respondents 2 and 5, preliminary objection has been taken that the proceedings under Section 145 Cr.P.C. had been initiated on 12.8.1994 and the present petition had been filed after 11/2 years. The petitioner is stated to be simply trying to dispossess respondents 2 to 5. It is contended that there are several civil suits filed by the parties against each other. They are pending. A suit has been filed by respondents 2 to 5 against the petitioner and is pending in the court of learned Senior Sub Judge, Karnal. Even the petitioner filed a suit for permanent injunction but it was dismissed on 2.8.1995. It was denied that the petitioner is in possession and reiterated that the order passed by the learned Sub Divisional Magistrate is in accordance with law. Similar reply is forthcoming from respondents 3 and 4.

During the course of arguments, learned counsel for the petitioner urged that merely because the civil suit is pending, is no ground to drop the proceedings under Section 145 Cr.P.C. On the contrary, the attention of the court was drawn by the respondents to the decision of the Supreme Court in the case of Ram Sumer Puri Mahant v. State of U.P. and others, 1985(2) RCR 43. It was concluded that when civil litigation is pending, where question of possession is involved, proceedings under Section 145 Cr.P.C. should be dropped. The Supreme Court held :

"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 25 was not in a position to challenge the proposition that 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. Multiplity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed."

That being the position of law, there appears to be no illegality in the order passed by the Sub Divisional Magistrate. In fact it transpires that in the facts of the present case, there is further no ground to exercise the inherent powers of the court in quashing the impugned order. This is for the reason that petitioner Narinder Kumar had filed a Civil suit for permanent injunction. The said suit was contested and on 2.8.1995 (after initiation of proceedings under Section 145 Cr.P.C.) the petitioner did not appear and allowed the suit to be dismissed in default under JUDGMENT 9, Rule 8 CPC. When the civil suit of the petitioner had already been dismissed in default and he was seeking an injunction to protect the possession, it is unfortunate that he still questions the order of the Sub Divisional Magistrate.

Taking stock of the facts and totality of circumstances, there is no ground to interfere in the impugned order passed by the Sub Divisional Magistrate. Therefore, the petition being without merit fails and is dismissed.