Ujagar Singh vs Sub Divisional Magistrate, Malerkotla

G.S. Chahal, J.

Ujjagar Singh petitioner has come to this Court in this petition under Section 482 CrPC for quashing of orders dated April 24, 1992 Annexure P4 and dated October 13,1992 Annexure P6 passed by SDM Malerkotla and Additional Sessions Judge, Sangrur respectively,

Proceedings under Sections 145 and 146 CrPC were initiated on the basis of a Calandera filed by PS Malerkotla with respect to the lands measuring 67 Bighas and 3 Biswas situate at Village Hathan. Kishan Pal Kaur daughter of Thakra Singh was married to Surjit Singh son of Ujjagar Singh son of Sampuran Singh of Village Faridpur Khurd. Ujjagar Singh, Jora Singh, and Harbhajan Singh were the tenants on this land for many years. Proceedings for ejectment were initiated by Kishan Pal Kaur in the Court of SDM, Malerkotla which was decided in her favour on November 18, 1991 and excepting for Khasra No. 1749, the possession of remaining land was got delivered by Kanungo and Patwari to Kishan Pal Kaur and others and a report in the Roznamacha dated November 26, 1991 was recorded. Jawar and Wheat crops were standing in the land regarding which compensation of Rs. 5,000/ was assessed which amount had, however, not been deposited by Kishan Pal Kaur and others. Ujjagar Singh petitioner and others obtained a stay order from the Court of Deputy Commissioner Sangrur on November 27, 1991 which order was subsequently confirmed on December 23, 1991. The SDM Malerkotla vide his order dated December 12, 1991 did not give approval to the order dated November 18, 1991 for the reason that Kishan Pal Kaur had not deposited the amount of compensation. Ujjagar Singh and others then filed an application for cancellation of case No. 177, but this application was dismissed on 12.3.92 on the ground that the same should have been moved before the Additional Deputy Commissioner, Sangrur, where the appeal was pending. On April 9, 1992, Ujjagar Singh and others obtained as stay order from the Court of SDM Sh. Joga Singh, to the effect that Kishan Pal Kaur and others may not put any hindrance in the harvesting of the crop. In the Khasra Girdawari, there was no clear indication as to which of the party was in possession and entitled to harvest the crop. Both the parties were laying their claim on this crop and security proceedings had been initiated. The police, thus, made a prayer that proceedings under Section 145 CrPC be initiated.

There had been ejectment proceedings brought by the landlady Kishanpal Kaur against the petitioner and others who were claiming rights as tenants. On the basis of the orders passed by the SDM, the delivery of possession was ordered and possession was delivered. Since some crops were standing, only symbolic possession appears to have been delivered and with respect to the crops, the compensation had been assessed.

Counsel for the respondents urges that this amounted to a complete ouster of the petitioner and his cotenants for the very reason that the delivery of symbolic possession against a judgmentdebtor tentamounts to his complete ouster and since disputes had been raised by the petitioner with respect to the possession of Kishanpal Kaur and others, a dispute had arisen which needed adjudication in proceedings under Section 145 CrPC.

The petitioner and others had brought a suit registered at No. 211 dated April 9, 1992 in the Court of Sh. Joga Singh, Additional Senior Sub Judge, Malerkotla and vide order Annexure P4, the application for grant of temporary injunction had been dismissed and the exparte adinterim injunction already issued was vacated. Appeal against this order was preferred by the petitioner and others which was dismissed by the Additional Sessions Judge, Sangrur vide order Annexure P5.

The argument of the learned counsel for the petitioner is that since a civil suit was pending only civil Court could decide the matter and no proceedings under Section 145 CrPC should have been initiated.

Reliance is placed on the observations of their Lordships of Supreme Court in Ram Sumer Puri Mahant v. State of U.P., 1985(1) RCR 278 wherein it was observed that the criminal Court should not be allowed to invoke its jurisdiction while a civil Court is examining the matter of possession and the parties are in a position to approach the civil Court for interim orders such as injunction order, appointment of receiver for adequate protection of the property during the pendency of the dispute.

This judgment was explained by Pritpal Singh, J. in Jagdish v. Sub Divisional Magistrate, 1987(1) RCR 433 . Reference was made to the following observations of the Division Bench of this Court is Mohinder Singh v. Dilagh Rai, 1976 PLR 803 :

"In such cases involving the disputes of possession in my view three types of orders can be envisaged to be passed by the civil Courts: (i) the appointment of receiver to manage the properties in dispute; (ii) the restraining of one of the parties from interfering with the possession of the other party during the pendency of the suit; about which the civil Court prima facie feels satisfied and (iii) the maintenance of status qua about the possession of the property during the pendency of the case.

If a civil Court appoints a receiver then there is no possibility of any dispute of the possession as the receiver gets into the possession of the property on behalf of the Court and is to deliver it to that party in whose favour the Court ultimately decides. In such case there cannot be any possibility of the dispute giving rise to the proceedings under Section 145, Criminal Procedure Code, as the Court removes apprehension of the breach of peace by putting the property in its custody. In the second type of cases prima facie it appears that there may not be any scope for the Criminal Court to act under Section 145, Criminal Procedure Code, because the Civil Court prima facie feels satisfied about the possession of one of the parties to the litigation before passing the ad interim order in his favour defending his possession On giving a deeper thought I do not think that this jurisdiction of a criminal Court be restricted. Cases are not wanting where a party obtains an ad interim order in his favour to the effect that during the pendency of the suit the other party will not interfere in his possession. If the other party uses force to dispossess him, inspite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings under Section 145, Criminal Procedure Code, and attraction of its emergency powers under sub. Section (4), the Magistrate will then step in, not to start parallel proceedings but to defend the orders of the civil Court not allowing the aggressor to establish himself in possession of the subjectmatter of the dispute in violation of the orders of the Court. In such a situation if the Magistrate acts then he adds the weight of the executive authority to respect the order of civil Court for maintenance of status quo and does not violate any law. Yet another type of cases can be anticipated where one may enter into wrongful or forcible possession of that property leading to proceedings under Section 145, Criminal Procedure Code. He may approach a civil Court and obtain an order in his favour that he may not be dispossessed from the property or for the maintenance of status quo. If this argument is accepted that when the civil Court is seized of a case then the proceedings under Section 145 Criminal Procedure Code, cannot continue and are to terminate, then armed with the order of the civil Court he may go to the criminal Court and get the proceedings under Section 145 CrPC dropped. After this he can get the civil suit filed by him dismissed and thus perpetuate his wrongful possession.

The third type of cases, that is maintenance of status quo during the pendency of the civil suit is a situation in which a civil Court does not prima facie feel satisfied about any party being in possession of the subject matter of the suit. In such cases when both parties claim possession, dangerous situation can develop with the anxiety of both or any one of them to get into actual possession. If the situation deteriorates then the police or the Magistrate cannot act as silent spectators to witness the breach of the peace if they act in such circumstances and the Magistrate attaches the subject matter of the dispute under Section 145, CrPC, then he would be acting to defend the maintenance of the status quo as ordered by the civil Court."

After referring to these observations, the Hon''ble Judge held that the observations of Supreme Court in Ram Sumer Puri Mahant''s case do not come in conflict with the law laid down by this Court in Mohinder Singh''s case, and the Supreme Court has not laid down the Rule that in every case where a civil suit is pending regarding the same subject matter, proceedings under Section 145 CrPC cannot continue.

In Kehar Singh v. Satnam Chand and others, 1990(3) RCR 219 , Chowdhri, J. again explained the principles of Ram Sumer Puri Mahant''s case and considering the facts of the case before him, made the following observations :

" The authority is clearly distinguishable from the facts of the present case. There the civil Court had adjudicated with regard to possession as well as title of the land in dispute in favour of one party against the other. It was observed by their Lordships that the decree of the civil Court is binding on the criminal Court in a matter of the present nature. It was, therefore, felt to be an abuse of the process of Court to invoke the jurisdiction of the criminal Court in the facts and circumstances of that case. It was in the peculiar facts of that case that it was held that parallel proceedings should not continue and order of the learned Magistrate was quashed."

In the present case, the civil Court had, while deciding the interim application found that the petitioner was not in possession and vacated the interim injunction. Since there was imminent danger of disputes relating to possession and the police was satisfied that in spite of the proceedings under Section 107/151 initiated vide Annexure P2 instituted on April 17, 1992, it was considered a valid advice (dence ?) to initiate proceedings under Section 145 CrPC. In the facts of the present case, it cannot be said that the continuation of proceedings under Section 145 CrPC during the pendency of the civil Suit amount to abuse of process of Court.

No case is made out for quashing the proceedings under Section 145 CrPC. This petition is hereby dismissed. The parties are directed to appear before the SDM Malerkotla on August 30,1993.