Rewachand vs State of Madhya Pradesh and Another

K.L. Issrani, J.

This is a revision petition against the order passed by the Sub-Divisional Magistrate, Katni, in Miscellaneous Criminal Case No. 130 of 1991 (Rewachand son of Sadrangmal v. Rewachand son of Udharam Sindhi) passed on 11-2-1991, by which procedings u/s 145 of the Code of Criminal Procedure were started and after passing a preliminary order of attachment, the case is fixed for evidence of the parties. Without filing criminal revision before the Sessions, Court it has been filed before this Court.

Admittedly, the shop in dispute belongs to the Municipal Corporation, Katni and the non-applicant No. 2 Rewachand son of Sadrangmal is the lessee of the Municipal Corporation, Katni. On 8-11-1985, one Mohandas son of Shri Meghraj, Rewachand son of Sadrangmal and Rewachand Lohani (the applicant) executed a deed of partnership, which was for a fixed period of five years.

Thereafter, it is alleged by the applicant that on 22-11-1985, the non-applicant No. 2 delivered the possession of the disputed shop to the applicant on tenancy basis on a rent of Rs. 750/- per month. Since then he is in peaceful possession of the shop known as Barrack No. 78. It is further submitted that on 24-11-1985, the applicant entered into a partnership agreement separately with one Mohandas and a partnership concern named and styled as M/s. Shree Narayan Tel Bhandar, Katni. Thereafter, the applicant and Mohandas, both, were in possession of the suit shop under their own partnership agreement between them. They used to pay the taxes. According to the agreement between them, this partnership firm was dissolved on 1-4-1989. The applicant used to pay monthly rent of ''Rs. 750/regularly to the non-applicant No. 2 but since the non-applicant No. 2 wanted to get the shop vacated, he filed an application u/s 145, Criminal Procedure Code on 23-1-1991. On 25-1-1991 the disputed shop was attached u/s 146, Criminal Procedure Code. The applicant challenged this order before the Court of Additional Sessions Judge, Katni, which was registered as Criminal Revision No. 5 of 1991. The learned Additional Sessions Judge, Katni, on 8-2-1991, set aside the attachment order of the Sub-Diviional Magistrate, Katni, dated 25-1-1991 and remanded the case back to the Sub-Divisional Magistrate, Katni, to decide it afresh according to la. Thereafter, the Sub-Divisional Magistrate, Katni, on 11-2-1991, passed a preliminary order u/s 145(1), Criminal Procedure Code and the property has been attached u/s 146(1), Criminal Procedure Code by order dated 11-2-1991, which is the impugned order under challenge before this Court.

The submission of the learned counsel for the applicant is that now since a civil suit for injunction has already been filed along with an application for temporary injunction by the applicant against the non-applicant No. 2 and the matter is seized by the Civil Court, the criminal Court has no jurisdiction. The police of Katni, on the strength of the impugned order dated 11-2-1991, has not only attached the shop but also seized the cash amount of Rs. 58,636/- from the counter and also stock worth Rs. 1,02,163/- and so also furniture worth Rs. 8845/- which are not immovable property and hence not liable to be attached under the provisions of Section 145, Criminal Procedure Code. The applicant has prayed for setting aside the impugned order and the proceedings before the Sub-Divisional Magistrate. The counsel for the applicant has relied on the principles laid down in Ram Sumer Puri Mahant Vs. State of U.P. and Others,

The learned counsel for the non-applicant No. 2 has vehemently opposed the contentions of the counsel for the applicant. He has supported the order passed by the Sub-Divisional Magistrate. According to him, the partnership deed dated 8-11-1985 was executed for a fixed period of five years between Mohandas son of Meghraj, the present applicant and the non-applicant No. 2, which period expired by efflux of time in November, 1990. Thereafter there was a settlement between the parties. On 20-1-1991, the applicant entered into an agreement with the non-applicant No. 2, whereby the applicant had shifted his stock and the non-applicant No. 2 came into exclusive possession of the shop premises of the place of business with all fittings and furniture. As such, on 20-1-1991, it was the non-applicant No. 2 alone, who was in exclusive actual physical possession of the suit shop but it was on 21-1-1991 that the applicant tried to dispossess the non-applicant No. 2. Therefore, a report in the police to that effect was lodged. On 23-1-1991, an application u/s 145, Criminal Procedure Code was filed before the Sub-Divisional Magistrate, Katni, on which the order of attachment was passed on 25-1-1991. It is only after the order was passed that the applicant had filed a civil suit. The applicant had also filed a revision against the order dated 25-1-1991, which was allowed on 8-2-1991 and the matter was remanded back to the Court of Sub-Divisional Magistrate, Katni, to decide the matter according to law and for passing a fresh order. The fresh order dated 11-2-1991 is a composite order Under Sections 145(1) and 146(1), Criminal Procedure Code, which is passed after hearing both the parties. It is thus conclusive and final till the matter is decided by the Civil Court. In the Civil Court, the applicant never tried to thrash any ground for ex parte temporary injunction etc. According to him, the orders passed by the Sub-Divisional Magistrate, Katni, Under Sections 145(1) and 146(1), Criminal Procedure Code are correct and call for no interference in criminal revision before this Court. Learned counsel for the applicant has relied on Bhinka and Others Vs. Charan Singh, Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, and Ram Kunwar v. Ramswarood 1986 (1) MPWN 118.

Learned counsel for the applicant has admitted execution of the partnership deed dated 8-11-1985 between Mohandas, applicant and the non-applicant No. 2 but submits that it was never acted upon. He also does not dispute the execution of he documents of the final settlement and agreement dated 20-1-1991 arrived at between the parties but states that it was obtained by fraud or coercion. The originals of these two documents are also shown by the non-applicant No. 2 for perusal of this Court. Signatures thereon are admitted except the above pleas of the applicant. The applicant has nowhere challenged the execution of the Annexure R-2 on the basis of fraud and coercion. He has not made any report to the police to that effect. In his civil suit for permanent injunction also, he has not challenged the same by stating that the deed was obtained by fraud and coercion. He has also not stated in the plaint (Annexure R-5) that the document i.e. the partnership deed (agreement) between Mohandas, himself and the non-applicant No. 2 on 8-11-1985 was neither executed nor acted upon. In para 4 of the above Annexure R-5, he only states that from 22-11-1985, the plaintiff and Mohandas started their wholesale business in partnership. The applicant has nowhere stated or argued that now there is no apprehension of breach of peace,. In such a case, it is to be seen whether the Court of Sub-Dividional Magistrate, Katni, was within its jurisdiction to continue the proceedings u/s 145, Criminal Procedure Code or they stand terminated by filing of the civil suit by the applicant against whom the order was passed after hearing both the parties. Proceedings u/s 145, Criminal Procedure Code are started under emergency and in case of breach of peace amongst the parties. The Sub-Divisional Magistrate has not to see and undergo a question of title of the parties but has only to see and undergo a question of title as to who was in actual physical possession of the disputed shop on 20-1-1991 or on the date of passing of the preliminary order. From the final settlement deed of agreement dated 20-1-1991, as it stands today, it is very much clear that one Mohandas, the applicant and the non-applicant No. 2 had earlier on 8-11-1985 entered into a partnership deed for a fixed period of five years, which period expired on 7-11-1990 and on that date, the applicant had shifted his stock and, the non-applicant No. 2 came into exclusive possession of the suit premises and the place of business along with fittings and furniture. On the police report, the application u/s 145, Criminal Procedure Code and other material on record, the Sub-Divisional Magistrate came to the conclusion that there is an apprehension of breach of peace in the dispute of possession over the disputed shop. He, therefore, had the jurisdiction to entertain and pass a preliminary order and an order for attachment.

Regarding the contention of the learned counsel for the applicant that the criminal court u/s 145, Criminal Procedure Code has no jurisdiction to attach the movable property and the order on this count is also bad, the contention of the learned counsel for the applicant has also no force. No doubt, the Magistrate acting u/s 145, Criminal Procedure Code has no jurisdiction to pass an order of attachment specifically with respect to movable property but where an order is passed in respect of immovable property, which may incidentally include movable property, which is either pertaining to or lying in the immovable property, the order cannot be said to be suffering from any such infirmity. I am fortified with the view taken in Sidiq Khan v. Qadir Khan AIR 1963 J.& K. 2.

Now the only question remains to be answered is whether after filing of the civil suit by the applicant after the order dated 25-1-1991 was passed by the magistrate Under Sections 145 and 146, Criminal Procedure Code, the jurisdiction still remains with him to decide the application u/s 145, Criminal Procedure Code. In this case, the applicant has not yet been able to seek an order from the civil Court. He has also not stated that now there remains no apprehension of breach of peace between the parties. However, the applicant is free to move the magistrate showing such circumstances; and the magistrate will be free to consider either to drop the proceedings u/s 145, Criminal Procedure Code or not. However, his order u/s 146, Criminal Procedure Code attaching the property will continue till the matter is finally decided by the civil court, as held in Ram Kunwar''s case (supra).

Thus there is no merit in the present revision petition and it is, therefore, dismissed.