Smt. Chamano Devi vs Shankar

B.P. Singh, J.—Smt. Chamano Devi, the applicant, moved an application on 14-5-1985 in the court of S.D.M., Ghaziabad, to initiate proceedings u/s 145 Code of Criminal Procedure in respect of a piece of land which was detailed in the application. After getting the report from the local Police and the Tahsildar, the learned Magistrate was satisfied regarding, apprehension of breach of peace. Consequently, a preliminary order was passed on 27-6-1985. The land in dispute was attached.

The applicant as well as the opposite party filed their written statements before the learned Magistrate. After hearing the parties, the learned Magistrate stayed the proceedings u/s 145 Code of Criminal Procedure on 17-3-1986 as civil litigation was pending between the parties.

Aggrieved by the order of the learned Magistrate, Shanker opposite party went in revision and his revision-Criminal Revision No. 109 of 1986 Shanker v. Smt. Chamano Devi was allowed on 10-9-1986 by the IV Addl. Sessions Judge, Ghaziabad and the order dated 17-3-1986 was quashed and the entire proceedings u/s 145 Code of Criminal Procedure were dropped.

Aggrieved by the judgment and order dated 10-9-1986, Smt. Chamano Devi has come in revision.

I have heard the learned Counsel for the parties and I have gone through the record of the case.

The only question for determination in the case is whether the learned Sessions Judge was justified in dropping the proceedings u/s 145 Code of Criminal Procedure in view of the fact that civil litigation was going on between the parties in respect of the same land.

The contention of the learned Counsel for the opposite party is that the learned Magistrate was not justified in initiating the proceedings u/s 145 Code of Criminal Procedure. While the argument of the learned Counsel for the applicant is that in every case in which civil litigation is pending between the parties regarding the same subject matter, the Magistrate is not bound to drop the proceedings. Thus the simple question for determination in this case is whether the Magistrate is bound to drop the proceedings in all cases pending in his court u/s 145 Code of Criminal Procedure in respect of same property if a civil suit is pending in the civil court in respect thereof. In this connection, I may refer to the leading case on the subject. In the case of Ram Sumer Mahant v. State of U.P. (XXII) 1985 ACC (45), the Supreme Court has held as follows:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding u/s 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for Respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.

In the case of Ram Sumer Puri Mahant (supra), the question of title and possession over the subject matter had already been adjudicated and the suit had been dismissed by the Civil Judge. An appeal against the judgment and order of the Civil Judge was still pending. It was in this background that the Supreme Court did not approve the parallel proceedings u/s 145 Code of Criminal Procedure in respect of the same subject matter between the same parties. Thus, Ram Sumer''s case is not as authority on die question that proceedings u/s 145 Code of Criminal Procedure must be dropped in all cases whenever a civil suit is pending in respect of the same subject matter between the same parties or between the parties through whom the parties are claiming their rights. Of course, parallel proceeding should not be allowed to continue if a party u/s 145 Code of Criminal Procedure can seek an effective remed (sic) declaration from the civil court. Even in such a case the proceedings u/s 145 Code of Criminal Procedure should be dropped only when the civil court has passed some effective order indicating as to which of the parties was entitled to possession. In some cases the proceeding should also be dropped when the civil court has appointed a receiver or has made some arrangement for the maintenance of such a property. But when the civil court does not clarify the position regarding the possession of the contesting parties by passing an effective order and simply passes an innocuous order like maintenance of status quo, the criminal proceedings are not to be dropped because in that case both the parties may stake their claim for possession and the situation may lead to the breach of peace. In such cases, even proceedings under Sections 107/116 Code of Criminal Procedure may not prove to be effective and the subject matter may have to be attached by the criminal court. Of course, orders passed by the criminal court in such cases shall be subject to the decision of the civil court. Thus the Magistrate is not bound to drop the proceeding pending in his court in all cases u/s 145 Code of Criminal Procedure for the simple reason that a civil suit is pending in the civil court in respect of the same subject matter between the same parties or through whom they are claiming.

In the present case, Smt. Chamano Devi had filed a suit for declaration as well as for possession in the court of Munsif concerned against Shanker. The suit was decreed on 21-1-1982. Shanker went in appeal and the second appeal is still pending in this Court. In the second appeal, this Court has passed an order restraining Shanker Respondent not to alienate the property without the permission, of the Court. He was also directed not to damage the property in question during the pendency of the second appeal. Thus, the question has been adjudicated by the civil court. Under the circumstances, the learned Sessions Judge was perfectly justified in dropping the proceedings u/s 145 Code of Criminal Procedure.

The application for revision is hereby dismissed.