Senthamaraikannan and two others vs Govindarajulu Naidu

A. Raman, J.

This Revision is against the order of the Executive Magistrate passed u/s 145 of the Criminal Procedure Code in M.C.No. 4 of 1992 on

17.12.1993.

The respondent herein filed an application before the Executive IInd Class Magistrate, Tindivanam claiming that he is in peaceful possession and

enjoyment of the properties comprised in R.S.No. 378/18, R.S.No. 378/14, R.S.No. 280/5, R.S.No. 379/1 and R.S.No. 379/2. He further

contended that the petitioners herein are unlawfully interfering with the peaceful possession and enjoyment of the property and that there is

apprehension of breach of peace and therefore invoking the jurisdiction of the Executive Magistrate u/s 145, the respondent herein pleaded for an

order restraining the petitioners herein from interfering with his peaceful possession. Learned Executive Second Class Magistrate passed an order

on 17.12.1993 restraining the petitioners herein from interfering with the enjoyment of the property pending disposal of the Civil suit filed by the

respondent. Aggrieved by this order of the Executive Magistrate this Revision is preferred.

It is not in dispute that already a suit has been filed in O.S.No. 634 of 1992 by the respondent herein against the Revision Petitioners for

injunction. It is also stated that along with the suit an application was also filed seeking for interim injunction and that no injunction was ordered by

the District Munsif, Tindivanam. The suit relates to R.S.No. 265/4 and R.S.No. 266/2. Those two items are part of the properties relating to which

the relief u/s 145 was sought for. In (his connection it is fruitful to refer to the decision of His Lordship T.S. Arunachalam, J. reported in, Indira and

2 others v. Dr. Vasantha and 2 others, 1990 TLNJ 67. It has been held by His Lordship as follows:

The initiation of parallel proceedings when the identical matter in respect of the disputed property was pending in a Civil Court wherein the

question of possession was involved, initiation of parallel criminal proceedings u/s 145 of Cr.P.C. would not be justified.

Here the proceedings has been initiated u/s 145 after the filing of the suit before the Civil Court. The Executive Magistrate was also apprised of this

fact. When the Civil Court which is competent to grant injunction has not chosen to consider it as a fit case to grant interim injunction, it was not

proper on the part of the Executive Magistrate to have ordered injunction. It virtually amounts to usurping of jurisdiction, which he has none. The

Executive Magistrate ought not to have passed any order when a competent Court is seized of the same. Moreover, the order does not disclose

that the Magistrate apprehended breach of peace. Therefore, in such circumstances, the order passed by the Executive Magistrate is

unsupportable. It is beyond the jurisdiction of the Magistrate to have passed such an order. Therefore, the order passed by the Executive

Magistrate suffers from material irregularity and the irregularity is of such a nature that cannot be cured. Therefore, I held that the order passed by

the Executive Magistrate is liable to be set aside.

In the result, the Revision is allowed. The order passed by the Executive Magistrate dated 17.12.1992 is hereby set-aside.