Sheomurti Pandey and Another vs Bharati Lai Pandey and Another

B.L. Yadav, J.—This revision u/s 397/401 of the Code of Criminal Procedure, 1974 (in short the Code), is directed against the order dated 16-12-85 passed by Sri. R.K. Gupta, Additional Sub-Divisional Magistrate, Varanasi, dropping proceedings under Sections 145/146 of the Code in Criminal Misc. Case No. 25/33 of 1985. The Criminal Misc. Application No. 64 of 1983 u/s 482 of the Code is directed against the order dated 27-11-82 passed, by the City Magistrate, Varanasi modifying the earlier order passed on 24-11-82 u/s 146 of the Code directing that as the City Magistrate was satisfied that there was apprehension of imminent breach of peace between the parties regarding the possession of the disputed properly and that immediate measures are necessary to avoid the breach of peace consequently it is directed that the property shall be attached u/s 146(1) of the Code. The next order of the same date was addressed to the Station Officer Daswasmedh Ghat directing him to attach the disputed property and take possession thereof and to keep the said property under attachment until a decree of the competent Court determining the rights of the parties has been passed. The order was to be executed by'' 26-11-82. The last order was passed on an application moved by 12 students, stating that they are students pursuing their studies in Banaras Hindu University; D.A.V. College, Harish Chandra Degree College, and they are roaming, here and there on account of the order of attachment of the accommodation in dispute. They were residing in the same accommodation which was being used as hostel. On that application the last order dated 27-11-80 was passed directing the Station Officer, Daswasmedh Ghat to continue the order of attachment as symbolic attachment and permit the 12 persons (students) to reside in their rooms. Both these applications relate to the same property and arise out of the same order including the order u/s 146 of the Code and the order dropping those proceeding. The parties also appear to be the same and, consequently, it is convenient to dispose of these two applications together. There was some delay in the revision, which I have condoned in the ends of justice.

The case was argued at great length from both sides. Sri. Mandhyan appearing for the applicant urged that the Magistrate illegally directed the proceedings u/s 145 in respect of building and land in dispute to be dropped as the civil suit was pending in respect of the land and building in dispute. No doubt civil suit was pending but the parties in proceedings u/s 145 are not the same as in the Civil suit. The learned Counsel for the opposite parties urged that order dropping the proceedings was correct as civil suit was pending even though parties may not be same and in some cases the parties cannot be the same.

The point for determination is as to whether proceedings u/s 145 can be dropped when a civil suit is pending in respect of the land and building in dispute even though parties are not the same in proceedings u/s 145 and in civil suit. It appears that a civil suit in respect of the same property, i.e., the building and the land in dispute is pending. It may be that the parties in the proceedings u/s 145 of the Code and in the civil suit may be different. But the land and building, the subject-matter of dispute remains the same. The concept of parties in civil suit is different than in the proceedings u/s 145. When a Plaintiff files a suit he would make those persons as Defendants against whom he wants to claim some positive relief in view of the provisions of Order 1 Rule 3 Code of Civil Procedure. Whereas in proceedings u/s 145 of the Code all those persons who were concerned with breach of peace in respect of the land or building, would be made parties either at the behest of the local police or at the behest of some private individual and such party would be directed to attend the Court of Executive Magistrate on specified date and time and would put in their written statements of their respective claims. It is, therefore, obvious that the concept of parties u/s 145 is entirely different from the concept of parties in civil suit. Except in some cases the parties to a civil suit need not be, and possibly could not be, the parties in proceedings u/s 145 of the Code. But as the civil suit was pending in respect of the same land in dispute and building, as was clear from the observation made in the order dated 16-12-85 passed by Sri. K.R. Gupta, Additional Sub-Divisional Magistrate, Varanasi, hence in view of the dictum laid down by their Lordships of the Supreme Court in Ram Sumer Das Puri Mahant v. State of U.P. 1985 A CR 108, there was no justification to continue a parallel proceeding u/s 145 of the Code. Further an observation has been made in the order dated 16-12-85 that from a perusal of record it appears that there was no continuing apprehension of the breach of peace. It means that on the date of order the Sub-Divisional Magistrate or the Additional Sub-Divisional Magistrate was satisfied that on the relevant date there does not appear to be any apprehension of the breach of peace. Under these circumstances, the learned Magistrate was justified in dropping the proceedings and quashing the orders dated 27-11-82 and 24-12-82 passed under Sections 145/146, and consequently further direction was issued to the Station Officer, Daswasmedh Ghat to deliver the possession of the disputed land or accommodation to the person or persons from whose possession the land or building was put under attachment. It appears that there was some injunction order passed by the civil Court. If any person feels aggrieved by the order dropping or quashing the proceedings under Sections 145/146, he can make an application for impleadment in the civil suit. In case the cause of action is different a fresh civil suit can be filed or any regular suit or proceeding can be initiated. But the order dropping the proceeding u/s 145/146 of the Code is perfectly correct and requires no interference.

In view of the discussions made above, the present revision and the application u/s 482 of the Code lack merits and the same are accordingly dismissed. The interim stay order dated 5-1-82 and other stay orders are vacated.

Office is directed to send back the record of the case immediately.