Tek Ram vs Sub-Divisional Magistrate, Panipat

M.L. Koul, J.

Although no question of law has either been framed or formulated by the learned Single Judge for adjudication by a larger Bench but from the reference made by him vide his order dated May 2, 1996 it transpires that this Bench constituted by Hon''ble the Chief Justice has to determine and adjudicate upon a legal proposition as to whether when a civil litigation is pending with regard to a landed property wherein the question of possession is involved and on adjudication a temporary injunction has been granted in favour of the plaintiff the parallel criminal proceedings under Section 145 of the Code of Criminal Procedure initiated by the plaintiff are warranted and justified ?

This reference is born out of a petition under Section 482 of the Code of Criminal Procedure taken into consideration by the learned Single Judge for quashing the proceedings initiated under Section 145 of the Code of Criminal Procedure Code vide Kalendra dated 10.10.1991 (Annexure P2) and the orders passed thereon contained in Annexures P3 and P4.

It is the admitted case of the parties that the petitioners Tek Ram and his son Ramesh were the defendants in three suits filed by respondent Nos. 2 to 4 separately. In suit No. 529 of 1989 filed by respondent No. 3 Sube Singh for permanent injunction with regard to land measuring 3 Kanals and 14 Marlas comprised in Khasra No. 253 in the Court of Additional Senior Sub Judge, Panipat, an adinterim injuction was granted in favour of the said respondent against the petitioners. The said suit is still pending. In another suit filed by respondent No. 4 Randhir Singh against the petitioner Tek Ram with regard to land measuring 3 Kanals and 16 Marlas comprised in Khasra No. 267 a status quo order was passed by the Court on 28.9.1989 and this suit stood dismissed as withdrawn on 5.2.1992. The third suit was filed by respondent No. 2 Kidara against the petitioners with regard to land measuring 3 Kanals 18 Marlas comprised in Khasra Nos. 251 and 252 in which an injunction was granted by the trial Court. Appeal against the said order is pending in the Court of learned Additional District Judge, Karnal and status quo has been ordered to be maintained.

The whole land in these three suits consists of 11 Kanals and 8 Marlas and the dispute relates with regard to the question of possession wherein the petitioners and the respondents claim counter possession over it.

Ordinarily when a civil suit is pending before a competent Court of law and a temporary injunction has been granted in favour of the plaintiff restraining the defendant from interfering in the possession of the disputed property it falls within the judicial parlance and control of that Court alone to see whether any disobedience or breach of injunction granted or any other order passed by that Court is made by the defendant and if he is satisfied after hearing the parties that such a thing had happened he can pass the necessary orders in contemplation of JUDGMENT 39 Rule 2A of the Civil Procedure Code and can order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months unless in the meantime the Court directs his release. The Civil Court is not powerless and if the breach in any manner continues he can even get the receiver appointed and entrust the property to his care till the suit is decided on merits.

In the instant case the respondents Randhir Singh, Sube Singh and Kidara who were the plaintiffs in the three civil suits (supra) were able to seek the temporary injunctions in their favour restraining the petitioners from interring in their possession over 11 Kanals and 8 Marlas of land with regard to which dispute about the possession was under consideration before the Civil Courts. They did not wait for the final adjudication before the Civil Courts and instead managed to get the property attached by initiation of criminal proceedings under Section 145 of the Code of Criminal Procedure through Devi Singh, Station House Officer, Police Station, Urlana, on whose Kalendra the orders under Section 145 Cr.P.C. were passed and the property was attached. In this way the civil proceedings earlier in time and which were subsisting before the Civil Courts in a way were declared nonexistent by a Sub Divisional Magistrate who on the intervention of the police, as managed by the plaintiffrespondents attached the disputed land about which civil proceedings with regard to its possession between the parties were pending.

It is broadly known that the proceedings under Section 145 Cr.P.C. which are quasi civil in nature for the purposes of determination of the possessory rights of the parties within the ambit of Section 145 Cr.P.C. can remain in vogue if the civil proceedings with regard to the possession of the land are not pending before a Civil Court of law. In law the determination of the possessory rights of the parties pending before a Civil Court have precedence over the Criminal Proceedings initiated before a Criminal Court of law that too if the criminal proceedings are later in time. Often it has been held by the Apex Court that a criminal Court being seized of the proceedings under Section 145 of the Cr.P.C. shall hold its hands back from adjudication of such a matter which in other form is subjudice before a civil Court of law that too earlier in time.

In this view we are fortified in U.J. (S.C.) 1970 page 75 entitled Sajjan Singh son of Jagan Nath Singh v. Sajjan Singh son of Bhairu Singh and another, wherein their lordships of the Supreme Court have held that "it will be open to the Sub Divisional Magistrate to consider whether the Receiver should be continued or not, but in any event, he shall not disturb the possession of Sajjan Singh son of Jagan Nath Singh so long as the temporary injunction is outstanding and pending the decision of the proceedings under Section 145 of the Code of Criminal Procedure with a view to handing over the possession to the other side."

Even one of us in 1997(1) R.C.R. (Crl.) 573 : 1997(1) R.C.C. 332 while laying reliance on 1993(1) R.C.R. (Crl.) 437 (SC) : 1993(1) S.C.C. 435, has held that where the civil proceedings are already pending disposal before the Court of law who has passed the status quo order, the Magistrate by no stretch of imagination could pass the preliminary order and the final order within the provisions of Section 145 Cr.P.C. and place the subject matter in dispute under the control of a receiver by attachment.

It is clear that the respondentsplaintiffs who became the beneficiaries of temporary injunctions and status quo orders issued in their favour managed under the garb of the said orders to seek proceedings under Section 145 Cr.P.C. through police and got the property attached by a Magistrate. That way they rendered the Civil Court proceedings subservient to the orders of a Magistrate whose sphere in the proceedings under Section 145 Cr.P.C. is limited.

As already stated above a Magistrate has no role to play in a matter about the disputed possession of some property between the parties where a Civil Court has already granted an injunction and is debarred to invoke the proceedings under Section 145 Cr.P.C. In this view of the law, it is worthwhile to make mention of A.I.R. 1985 S.C. 472 wherein the Apex Court has held that :

"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of parallel criminal proceedings under Section 145 of the Code, would not be justified. The 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 an 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 view of the above observation of the Apex Court, we are afraid to hold that the view expressed by the Division Bench of this Court in Mohinder Singh v. Shri Dilbagh Rai, reported in 1976 PLR 803 still holds good and the parallel proceedings under Section 145 Cr.P.C. can be started to defend the orders of the civil Court by not allowing the aggressor to establish himself in possession of the subject matter.

Also we feel that by initiation of parallel proceedings by the same party, one before a Civil Court of law (which is earlier in time) and gets a temporary injunction on adjudication and the other before a Criminal Court of law who attaches the property by invoking powers u/s 145 Cr.P.C., both the parties are put to a legal jeopardy for there is every likelihood that two Courts may adjudicate differently and that way the parties may get deranged under the process of law.

Once the Apex Court by an authoritative pronouncement has held that when a civil litigation is pending for the property wherein the question of possession is involved and adjudicated, initiation of criminal proceedings under Section 145 Cr.P.C. would not be justified, the rulings of this Court on the subject whether of any learned Single Judge or that of the Division Bench contrary to that view are of no avail especially when the ruling reported in A.I.R. 1985 S.C. 472 is the latest on the subject and no other ruling was cited that the Hon''ble Supreme Court has afterwards held contrary to it and in line with the law laid down in 1976 P.L.R. 803.

In view of the above discussion this Criminal Misc. is allowed and the proceedings initiated before the criminal Court under Section 145 Cr.P.C. and the orders passed thereon being illegal and countrary to the settled law as mentioned above are quashed and the parties are left to be governed by the orders of the Civil Courts who shall see that their orders are maintained by the parties in accordance with law.

While parting with the judgment, we deemed it necessary that with the permission of Hon''ble the Chief Justice a copy of the judgment be sent by the Registry to all the Subordinate Courts working under the control of this Court and to all the District Magistrates of Punjab, Haryana and Union Territory, Chandigarh for its circulation amongst the Execution Magistracy working under their control.