Parvatawwa and Another vs Kamalawwa and Another

In this Petition, the order made in MAG/CR/36 dt. 26-8-1977 by the bub-Divisional Magistrate, Bailhongal, attaching the lands in dispute and appointing a receiver to look after them, is challenged by the members of the second party.

The facts necessary for the disposal of this petition may briefly be stated as follows: The properties about which there is dispute as to possession, originally belonged to one Shankaragouda, husband of Parvatawwa, the first petitioner herein The second petitioner is her power-of attorney-holder. The first respondent is the grand-daughter of 1st petitioner being her daughter''s daughter. The second respondent is the husband of the first respondent. It appears, after the death of Shankargouda dispute arose between the parties as to the possession of certain items of property situated in Ugargoli village of Saundatti Taluk.

The first petitioner has filed an original suit OS. 4 of 1976 on the file of the Civil Judge, Belgaum against the respondents herein and others and obtained an interim injunction restraining the respondents and others from interfering with the possession of the first petitioner. The respondents herein challenged the said interim order before thisCourt in MFA. 393 of 1976. This Court by the order it. 15-4-1976 granted a limited stay of the interim order keeping in force that portion of the interim order of injunction which related to restrain the respondents from obstructing the first petitioner in realising and harvesting the crop raised during the year 1976 on the suit lands. It appears, the dispute between the parties still persisted regarding possession of the suit properties which was likely to cause breach of the peace. Thereupon, the Sub-Inspector of Police, Saundari, made a report to the Sub-Divisional Magistrate, Bailhongal and on the basis of which the Sub-Divisional Magistrate initiated proceedings under Sec. 145 of the CrlPC., 1973 (shortly called the ''Code''), and passed a preliminary order under Sec. 145(1) of the Code on 9-5-1977 calling upon both the parties to attend his Court in person or by pleaders on 24-5-1977 at 3 p.m. and to put in written statements in respect of their respective claims as to the factum of possession ofthe properties in dispute and also to produce documents and evidence etc. The case appeared to have suffered some mora adjournments and when it came up for hearing on 23-8-1977, the Sub-Divisional Magistrate, Bailhongal, after rejecting the request made by the 2nd petitioner herein for adjournment, heard the Advocate for the respondents and passed the impugned order on 26-8-1977. It is the correctness of this order that is challenged in this criminal petition.

At the very outset Shri K.A. Swamy, learned Advocate appearing for respondent-1 raised a preliminary objection against the maintainability of the petition which is one under Sec. 482 of the Code on the ground that the impugned order is an interlocutory order, the correctness of which cannot be challenged under revisional jurisdiction of this Court in view of the bar contained in Sec. 397(2) of the Codeand as such it fails outside the purview of the inherent powers vested in this Court and therefore, the petition in question is not maintainable. In support of this contention, he placed reliance on a decision of the Supreme Court in Amar Nath v. State of Haryana, AIR. 1977 SC. 2185, In the said decision, the Supreme Court, while dealing with the scope of Secs. 397(2) and 482 of the Code, held in para 3 of the judgment as follows:

"While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-section (2) of Sec. 397 of the 1973 Code, the inherent powers contained in Sec. 482 would not be available to defeat the bar contained in Sec. 397(2). Sec. 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Secs. 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Sec. 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where there is an express provision barring a particular remedy, the Court cannot resort to the exercise of inherent powers."

The above statement of law enunciated by the Supreme Court would certainly sustain the contention of Shri K.A. Swami if the impugned order is an ''interlocutory order'' falling within the purview of sub-section (2) of Sec. 397 of the Code However, the Supreme Court in a later decision in Madhu Limaye v. State of Maharashtra, AIR. 1978 SC. 47, has modulated the above statement of law enunciated in Amar Nath''s casel (supra) in the following terms:

"As pointed out in Amar Nath''s Case (AIR. 1977 SC. 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Sec. 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order-on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Sec. 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Sec. 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Sec. 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play there being no other provision in the Code for the redress of the grievance of the aggrieved party: But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing contained in Sec. 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction."

The next question on this aspect that would arise for decision is whether the impugned order is an ''interlocutory order''? What amounts to an ''interlocutory order'' within the meaning of Sec. 397(2) of the Code, has been considered by the Supreme Court in Amarnath''s casel referred to above and his Lordship Fazal Ali, speaking for the Bench, observed in para 6 of the judgment as follows:

"....It seems to us that the term "Interlocutory Order" in S. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Sec. 397 of the Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding may no doubt amount to interlocutory orders against which no revision would lie under S. 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court."

In the light of the above enunciation by the Supreme Court, the nature of the impugned order whether it is an ''interlocutory order'' or not will have to be considered.

Under the impugned order, the Sub-Divisional Magistrate, attached the subject matter of the dispute and appointed a receiver to look after the properties. It is true that the proceeding initiated by the Sub-Divisional Magistrate, involves the question as to who, between the two parties, was in possession of the subject matter of the dispute at the time of passing the preliminary order. It does not pre-suppose that none of the parties was in possession of the properties in dispute at the time of passing the preliminary order. A dispute as to possession of the properties that would give rise to a proceeding u/S. 145 of the Code, in the normal course, would arise when a party, who is not in actual possession of the property, puts forward a claim for possession under the pretext that he has got the right to the property or, when both the parties put forward their rival claims to the subject matter of the dispute for the first time when either of them was not in possession thereof and such other circumstances when one party asserts his right to be in possession which the other would deny. However, it cannot be assumed on the mere fact that a proceeding under S. 145 of the Code has been initiated that none of the parties was in possession of the properties at the time of passing the preliminary order. In that view of the matter, it cannot be contended with any amount of force that the order appointing a Receiver to take possession of the properties and to manage them which are the subject matter of dispute, is an order of a purely interim or temporary nature which does not decide or touch the important rights or the liabilities of the parties. Certainly, it would be an order which is a matter of moment so far as the party who was in possession of the properties at the time the Receiver is appointed to take possession of them depriving his possession and management thereof. In that view of the matter, it cannot be said that the impugned order appointing the Receiver to the subject matter of dispute is purely of an interlocutory character which could be corrected in exercise of the revisional powers of the High Court under the 1898 Code so as to disentitle the petitioner to invoke the inherent powers of the High Court under S. 482 of the Code. Therefore, I hold that there is no substance in the preliminary objection raised by Shri K.A. Swami learned Counsel for respondent-1.

In regard to the merits of the petition, it was argued by Shri K.I. Bhatta, learned Counsel for the petitioners that the impugned order is based primarily on arguments advanced by the Advocate for the first party who are the respondents herein, and not on any material placed before the Sub-Divisional Magistrate so as to reach the conclusion that the case was one of emergency calling for the attachment of the subject-matter of dispute and appointment of the Receiver to manage the same. His second contention was that the second party, who are the petitioners herein, were not given an opportunity to make their submissions in the matter thereby denying them to put forward their case and as such the impugned order is opposed to the principles of natural justice. It seems tome that both the contentions are well-founded.

It is provided in sub-sec. (1) of Sec. 146 of the Code that if the Magistrate at any time after making the order under sub-sec. (1) of S. 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Sec. 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court would determine the rights of the parties thereto with regard to the person entitled to the possession thereof. Under sub-sec. (2), the Magistrate may appoint a Receiver to look after the property which is the subject-marter of attachment. From the above, it is clear that the power of the Magistrate to attach the subject-matter of dispute is dependent upon the three conditions referred to in sub-sec. (1) of S. 146. In this case case the Sub-Divisional Magistrate invoked his jurisdiction to attach the subject matter of dispute and to appoint the Receiver on the ground of emergency. As rightly contended by Shri K.I. Bhatta the impugned order is based mainly on the arguments advanced by the Advocate for the first party (the respondents herein) as could be seen from the impugned order. The Sub-Divisional Magistrate has not referred to any other material which impelled him to consider the case as one of emergency. Besides, the impugned order also reveals that no proper opportunity was given to the second party (the petitioners herein) to put forward their case as the time sought for by the scond petitioner herein who was present before the Sub-Divisional Magistrate, had been refused. It seems to me that the impugned order does not satisfy the legal requirement for taking action under Sec. 146 of the Code as no material, placed before the Sub-Divisional Magistrate to reach the conclusion that the case was one of emergency. In view of the infirmities pointed out above, the impugned order cannot be sustained in law, and therefore this petition is entitled to succeed.

In the result, this petition is allowed and the impugned order dt. 26-8-1977 passed by the Sub-Divisional Magistrate, Bailhongal in No. MAG/CR/36 is set aside.

This does not preclude the Sub-Divisional Magistrate to take action under Sec. 146 of the Code if the circumstances of the case would call for such action.