S.P. Nagarathinam vs Sub-divisional Magistrates and Sub-collector, Thanjavur and others

Counter petitioner No. 2 of ''B'' party in MC. 117/90 on the file of Sub-Divisional Magistrate and Sub-Collector, Thanjavur, has filed this

petition under S. 482, Criminal Procedure Code, praying to call for the records in the aforesaid case and quash the impugned order passed by the

first respondent in the above proceedings on 31-12-90.

Brief facts leading to this petition are :

The Sub-Inspector of Police (Law and Order) Thanjavur West Police Station, Thanjavur, had filed F.I.R. No. 1678/90, dated 1-11-90 in Crime

No. 1404/90 under S. 145, Criminal Procedure Code against counter petitioners A and B parties. On that complaint, both the counter petitioners

were directed to put in written statements of their respective claims concerning the fact of actual possession of the disputed site. Accordingly, they

had examined Mathivanan and Srinivasan. ''B'' party had examined Jayapal and Suriyamoorthy. The Sub-Inspector was also examined. Both the

parties have filed the documents in support of their respective claims. After elaborate enquiry, the lower authority had held that ''A'' party was in

possession but was unlawfully dispossessed on 28-10-90 when a suit was still pending. On that finding the lower authority had passed an order

directing that possession is restored to ''A'' party under S. 145(6)(a), Criminal Procedure Code, unless he is evicted by any other due provision of

law. Aggrieved by this order, counter petitioner No. 2 of ''B'' party has filed this petition invoking the extraordinary powers of this Court under S,

482, Criminal Procedure Code.

Mr. T. Susindran, the learned counsel appearing for the petitioner, would submit that the petitioner herein had filed a civil suit in O.S. 3564/89

on the file of District Munsif, Thanjavur against counter petitioner No. 1 of ''A'' party and four others in respect of the very same property

regarding which S. 145, Criminal procedure Code proceedings were initiated and that in view of the earlier civil suit, this proceedings and order

passed thereon are to be quashed. For contra, Mr. R. Karunakaran, the learned counsel appearing for respondents 3 and 4 would submit that

though the civil suit is anterior in point of time, no final order was passed in the civil suit and while so, the initiation of S. 145, Cr.P.C. proceedings

are not barred.

The copy of the plaint in O.S. 156489 before the District Munsif, Thanjavur is filed. From it, I find that the petitioner herein had filed the suit

against the counter petitioner No. 1 of ''B'' party and four others, arraying them as defendants 1 to 5 and has prayed for a relief of permanent

injunction in respect of the verandhah portion in Door No. 90. Manojiappa Street, which is the property concerned in S. 145, Cr.P.C.

proceedings. That suit was filed on 23-12-89. The proceeding under S. 145, Criminal Procedure Code was initiated on 1-11-90 in respect of

unlawful dispossession made on 28-10-90. After elaborate enquiry, in a well considered order, the lower authority had held that ''A'' party was in

possession but was unlawfully dispossessed on 28-10-90. The question is whether simply because a civil suit was filed, will it operate as a total bar

for initiation of any proceedings under S. 145, Criminal Procedure Code, whatever be the circumstances, when no final decree was passed in the

civil suit. My clear answer is in affirmative No. Unless there is order or decree binding upon the parties, mere filling of a civil suit at an earlier point

of time, cannot act as a cover up for all acts done by the plaintiff with regard to the suit property at any subsequent point of time though his action

gives rise to circumstances warranting initiation of proceedings under S. 145, Cr.P.C. In N.A. Ansary and Others Vs. Jackiriya and Others, ,

Justice Janarthanam had formulated two points for consideration. The first point is as follows :

(i) When a civil litigation is pending with regard to a property involving the question of possession and has been adjudicated, there is hardly any

justification for initiating parallel criminal proceedings under S. 145, Cr.P.C.

After considering the pronouncement of the Apex Court in Ramsumar Puri Mahant v. State of U.P., 1985 LW Cri 84 : 1985 Cri LJ 752 and of

this Court in Magdoon K.S. v. N. S. Jalal, 1988 LW 89 and Vallimalai v. Ayyannan Ambalam, 1986 LW 110, the learned judge had answered

the point as follows :

In the view, I have taken it goes without saying that the first point has to be answered in the negative.

In Venkarakrishnan v. State of Tamil Nadu, 1989 LW 44 : 1989 Cri LJ 1836 the same learned Judge had held that there is no legal bar for

proceedings under S. 145, Criminal Proceedings as well as proceedings before the civil Court and that they can go on simultaneously. The learned

Judge had further held that once a Civil Court passed a decree in respect of the subject-matter of the proceedings, it is binding upon the

Magistrate. If the Civil Court had passed a decree prior to the initiation of proceedings under S. 145, Criminal Procedure Code, then it may not be

possible for the Magistrate to proceed under S. 145, Criminal Procedure Code and decide the question of possession as the civil Court had

already decided such matter. In the instant case before me, the Civil Court had not decided the matter of possession, One party had approached

the Civil Court by filing suit for permanent injunction and it is pending. It did not get terminated at all in a decree in favour of one party. In such

circumstances, the proceedings under S. 145, Criminal Procedure Code, is not barred and an order can be passed in such a proceeding. In view

of the above, I am unable to accept the contention of the learned counsel Mr. T. Susindran that the order in M.C. 117/90 is liable to be quashed.

In view of the above, this petition which has got no merits, shall stand dismissed.

Petition dismissed.