Ram Kishan vs Ram Dia and Others

Nirmaljit Kaur, J.

CRM 13209 of 2011

This is an application for restoration of the main case.

For the reasons mentioned in the application, the order dated 17.08.2010, dismissing the main case for non-prosecution is recalled and the main case is restored to its original number and the same is being taken up for final hearing today itself.

Application is allowed.

Main case

This is a petition u/s 482 Code of Criminal Procedure for setting aside the impugned order dated 04.04.2009 (P2) passed by the learned Additional Chief Judicial Magistrate, Panipat as well as the impugned order dated 20.01.2010 passed by the Additional Sessions Judge, Panipat vide which the complaint as well as revision of the Petitioner has been dismissed.

The present Petitioner filed complaint dated 11.12.2007 before the trial Court, alleging therein, that he is a resident of village Khukhrana, Tehsil and District Panipat and is having a right in Jumla Mushtarka Malkan, Samlat Deh and Gora Deh of Village Khukhrana, Tehsil and District Panipat. It was further alleged in the complaint that the judgment and decree dated 03.01.1989 passed in Civil Suit No. 1368/88 titled as Ram Dia v. Sumer Singh etc. passed by the T.C. Tanwar, SJIC, Panipat has been obtained by playing fraud in Court and the mutation of the above said land was illegally got sanctioned in favour of the accused persons. The said criminal complaint after recording of preliminary evidence was dismissed by the Additional Chief Judicial Magistrate, Panipat, vide order dated 04.04.2009 (P2) on the ground that a civil suit was pending and the civil Court has yet to give its finding qua specific averments of fraud and forgery as alleged by the Petitioner and the finding of the civil Court is binding on the criminal Court. Aggrieved, the Petitioner filed revision petition before the Additional Sessions Judge, Panipat, who too dismissed the revision petition, vide its judgment dated 20.01.2010. Thereafter, the Petitioner has filed the present petition u/s 482 Code of Criminal Procedure before this Court.

After hearing the learned Counsel for the Petitioners as well as perusal the impugned orders, this Court finds no merit in the submissions made by the learned Counsel for the Petitioner.

Second revision is barred u/s 397(3) Code of Criminal Procedure The present petition is nothing but a second revision under the garb of Section 482 Code of Criminal Procedure It is well settled proposition of law that second revision u/s 482 Code of Criminal Procedure is not maintainable until and unless, there is a miscarriage of justice. Learned Counsel for the Petitioner herein has not been able to point out any such miscarriage of justice and has raised no argument which may enable this Court to set aside the order dated 04.04.2009 (P2) passed by the learned Additional Chief Judicial Magistrate, Panipat as well as the impugned order dated 20.01.2010 passed by the Additional Sessions Judge, Panipat, vide which, the complaint as well as revision of the Petitioner was dismissed.

Even on merit, the Petitioner has no case. As discussed above, the main allegation in the complaint is that the judgment and decree dated 03.01.1989 passed in Civil Suit No. 1368/88 titled as Ram Dia v. Sumer Singh etc. passed by Shri T.C. Tanwar, SJIC, Panipat has been obtained by playing fraud. Whereas, on the calling of the report u/s 202 Code of Criminal Procedure the Magistrate found that the aforesaid judgment and decree and mutation in pursuance to the said decree has already been challenged by the complainant. The said civil suit challenging the sale deed is pending. The allegations in the present case are such which are already the subject matter of the civil suit filed by the Petitioner. Till as such time, the civil suit is disposed of or finding is recorded that the earlier civil suit No. 1368/88 titled as Ram Dia v. Sumer Singh etc. and decree dated 03.01.1989 was forged and fabricated, the very complaint is pre-mature.

Accordingly, the present petition is dismissed being devoid of merits and there is no ground to interfere in the well reasoned orders passed by both the Courts below.