R.N. Sonthaliya and Others vs Ram Prasad and Another

M. Wahajuddin, J.—The applicant has prayed that the Receiver be ordered to deliver possession of the attached land to the applicant. The present applicant was a party to proceedings u/s 145, Code of Criminal Procedure. That proceeding was decided by the Magistrate on 12-4-1973. The Magistrate held the opposite party to be in possession within two months of the preliminary order and made such declaration directing that his possession shall not be disturbed, unless he is evicted in due course of law. A revision was preferred and a reference was made therein and the High Court rejecting that reference upheld the order of the Magistrate as per this Court judgment dated 21-5-1974 (Annexure "1"). The order of the Magistrate, thus, became final as far back as in May 1974.

The applicant''s submission is that after the dismissal of the injunction suit subsequently he applied to the Magistrate that the possession of the Immovable property may be delivered to him, as the injunction suit filed by the opposite party No. 1 has been dismissed. The Magistrate rejected that application and directed that delivery be made to the opposite party No. 1. Feeling aggrieved from the same this application u/s 482, Code of Criminal Procedure has been filed by the applicant.

The law is well settled that the jurisdiction of the Magistrate u/s 145, Code of Criminal Procedure, is independent of any civil jurisdiction. It has also been held that the civil or revenue court decree etc. may have only persuasive value during hearing and the Magistrate is not bound by the same. The case of Kalapdin v. State 1970 AWR 410, Jafar Hussain v. State 1969 AWR 199, Mst. Hosanki v. State 1955 AWR 64and Tikandra v. State ILR Raj 657 are authorities on the point. It has been even held that even if there is any temporary injunction order the Magistrate can proceed. In the case of R.A. Bhutani v. Miss Mani, 1969 AWR 59it was held that once a preliminary order is passed the Magistrate has to decide the matter u/s 145(4), Code of Criminal Procedure, as to pass a final order accordingly. The case of Kalapdin (supra) relied upon by the applicant''s Counsel does not lay down any different proposition of law. It was urged that if the decision of the civil court was later determining the rights, the Magistrate has to give effect to the same. Such observations are made in the context of the provisions corresponding to the provisions of Section 145(4) and Sub-clause (6) of the pressnt Code of Criminal Procedure. It may be desirable to add at this stage the Scheme contained in Section 145 Code of Criminal Procedure. Section 145(1), Code of Criminal Procedure, provides for preliminary order, Sub-clause (4) provides for a decision on the right of possession and subclause (6) then provides that if the Magistrate decides that one of the parties was or should be treated being in such possession, he shall issue an order declaring such party to be entitled for possession thereof, until evicted there from in due course of law, and forbidding any disturbance until such eviction. This in itself makes abundantly clear that the party, who is declared in possession in the proceedings u/s 145, Code of Criminal Procedure is to have possession undisturbed by other parties, unless he is evicted in due course of law. Reliance was further placed upon the case of case of Nata Padhan and Others Vs. Banchha Baral and Others, . What has been held in that case is that if final order is passed in a pending suit later, that may take away the effect of the order passed u/s 145, Code of Criminal Procedure.

I have already refered to the relevant sub-clauses of Section 145 Code of Criminal Procedure and the express provisions are that the party declared in possession shall remain in such possession undisturbed unless evicted in due course of law. So the crucial matter is whether the dismissal of the suit of opposite party No. 1 for injunction will have the effect of any decree of eviction against him. This I do not think will be the case. If a party has been agitating the matter in two forums and in the civil court (sic) only prayer is for injunction, simply because the injunction suit has not (sic) the order u/s 145 Code of Criminal Procedure would not become ineffective. (sic) there should be a proper order of the competent court within the meaning (sic) 145 (6) Code of Criminal Procedure and to the effect as provided under that section. I have also perused the judgment in the injunction suit, which has been annexed. I find that the civil court did not decide the question of possession. The entire judgment and decree is based on the reasoning that as the lease in favour of the present opposite party No. 1 stand terminated, he cannot claim any injunction in his favour. When that is the position, that judgment and decree will not have the effect of a decree for eviction of the opposite party No. 1.

It was urged that in any case the ex parte decree in favour of Paras Nath, opposite party No. 2, may have that effect, if the present applicant is not held entitled to possession, Paras Nath as per judgment of the civil court will be held entitled to possession. I have perused that judgment, that judgment relates to only moveable propoerty and not to the land. If Paras Nath wants execution of that decree of the civil court, he can well seek its execution from the civil court concerning the moveable for which the decree has been obtained. This Court in the application u/s 482, Code of Criminal Procedure will not give any relief to him as such. The inherent powers are meant to prevent the abuse of the process of law, they are not meant to undo any final decision which had taken place in a proceeding long ago. The applicant has the remedy of having a resort to civil suit, which will have the effect of a decree of eviction of the opposite party No. 1. But merely because the injunction suit of the opposite party No. 1 has been dismissed, he may not be granted any relief by this Court in a proceeding u/s 482, Code of Criminal Procedure.

This application is, therefore, dismissed. The stay order, if any, is vacated.