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Sunday, January 12, 2014

Sec.145 Cr.P.C. proceedings - Civil suit - Pending of civil suit never bars the jurisdiction of executive Magistrate from initiating proceedings when breach of peace occurred - except in cases of Declaration of title or possession with consequential reliefs if any - SDM properly with draw the proceedings before recording final order as the suit is for declaration of title and injunction = PETITIONER: AMRESH TIWARI Vs. RESPONDENT: LALTA PRASAD DUBEY & ANR. = 2000 ( APRIL - VOL 4) JUDIS.NIC.IN /S.C. / FILE NAME =17206

Sec.145 Cr.P.C. proceedings - Civil suit - Pending of civil suit never bars the jurisdiction of executive Magistrate from initiating proceedings when breach of peace occurred - except in cases of Declaration of title or possession with consequential reliefs if any - SDM properly with draw the proceedings before recording final order as the suit is for declaration of title and injunction = 
Jhummamal alias  Devandas  versus  State of Madhya  Pradesh  &  Ors.,
reported in 1988 (4) S.C.C.  452.  
It is submitted that this
authority  lays  down  that merely because a civil  suit  is
pending  does  not mean that proceedings under Section  145
Criminal  Procedure  Code should be set at naught.   In  our
view  this  authority  does  not lay  down  any  such  broad
proposition.  In this case the proceedings under Section 145
Criminal  Procedure Code had resulted in a concluded  order.
Thereafter the party, who had lost, filed civil proceedings.
After  filing the civil proceedings he prayed that the final
order  passed in the Section 145 proceedings be quashed.  It
is  in that context that this Court held that merely because
a  civil suit had been filed did not mean that the concluded
Order  under  Section 145 Criminal Procedure Code should  be
quashed.   
This is entirely a different situation. 
In this
case  the  civil  suit had been filed first.   
An  Order  of
status quo  had already been passed by the competent  civil
court.  Thereafter Section 145 proceedings were  commenced.
No  final  order  had been passed in the  proceedings  under
Section  145.  In our view on the facts of the present case
the  ratio  laid  down in Ram Sumers  case  (supra)  fully
applies.   We clarify that we are not stating that in  every
case  where  a civil suit is filed, Section 145  proceedings
would  never  lie.  It is only in cases where civil suit  is
for possession or for declaration of title in respect of the
same  property and where reliefs regarding protection of the
property  concerned  can be applied for and granted  by  the
civil court that proceedings under Section 145 should not be
allowed  to  continue. This is because the civil  court  is
competent  to  decide  the  question of  title as  well  as
possession  between the parties and the orders of the  civil
Court  would be binding on the Magistrate.  .  In this view
of  the matter the appeal is allowed.  The impugned Order is
set   aside.   In  our view, the  S.D.M.   was  right  in
discontinuing  the  proceedings under Section  145  Criminal
Procedure  Code.  The Order passed by the S.D.M.  on 9th  of
June, 1999 is restored.

2000 ( APRIL - VOL 4) JUDIS.NIC.IN /S.C. / FILE NAME =17206

PETITIONER:
AMRESH TIWARI

Vs.

RESPONDENT:
LALTA PRASAD DUBEY & ANR.

DATE OF JUDGMENT: 25/04/2000

BENCH:
D.P.Mahapatro, K.T.Thomas, S.N.Variava




JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J


      S.  N.  Variava, J.



      Leave granted.

      This  appeal is against an Order dated 8th  September,
1999. By  this  Order the High Court has, in exercise  of
powers under Section 482 of the Criminal Procedure Code, set
aside an  Order  dt. 9th   June  1999,  passed  by the
sub-divisional Magistrate.  The SDM had dropped/discontinued
the  proceedings under Section 145 of the Criminal Procedure
Code.

      Briefly  stated the facts are as follows :  In respect
of  the property concerned the 1st Respondent had a  dispute
with Sharda Prasad and Shiv Kumar.  The 1st Respondent filed
Civil  Suit  No.  280 of 1990 in the Court of  Civil  Judge,
Gyanpur on 10th October, 1990. It is not denied that this
Suit  was  for declaration  of title, possession  and for
injunction.   On  10th October, 1990, itself an application
for  ad interim Order was made. An Order to maintain status
quo, as on that date, was passed by the Court.

      According to  the  Appellant, on 10th  October, 1990
itself the said Sharda Prasad and Shiv Kumar had executed a
Sale  Deed in favour of Smt.  Prem Kali, who was the  mother
of  the Appellant.  According to the Appellant possession of
the  property  was delivered to Smt.  Prem Kali on the same
day.   In  Suit No.  280 of 1990, on an application made  by
Smt.  Prem Kali, she was impleaded as a party defendant.  In
that  Suit  the pleadings are complete.  Issues  have been
framed. The suit is pending trial.

      While  this Suit was pending the S.O.  Police Station,
Aurai  made  a report to the S.D.M., Gyanpur  stating that
there  was a dispute regarding possession of land likely  to
cause  a  breach  of peace within his jurisdiction  and for
initiating   of proceeding  under   Section  145   Criminal
Procedure  Code.   On the basis of this report, the  learned
S.D.M. passed preliminary  Order   under  Section  145(1)
Criminal Procedure Code.  Pursuant to this preliminary Order
the   Appellant's  mother  appeared   and  filed  a  written
statement  stating that there was no dispute likely to cause
breach of peace regarding possession of the said  property.
It  was pointed out that the civil Suit was pending in the
court of  civil  jurisdiction  and  an  Order   directing
maintenance  of status quo had already been passed.  The 1st
Respondent  also  filed a written statement pursuant to the
preliminary  Order.   The  1st Respondent claimed  that the
property  which formed the subject matter of the civil Suit
was  different from  the  property   in  respect  of  which
proceedings  under  Section 145 Criminal Procedure Code had
been adopted.

      The  Appellant thereafter made an Application that the
proceedings  under  Section 145 Criminal Procedure  Code  be
dropped as a civil Suit in respect of the same property was
pending.   That Application was rejected by the S.D.M.  on
13th   September,  1991.   Against   the  Order dated 13th
September,  1991,  a Criminal Revision was filed before the
Additional  Session  Judge,  Gyanpur. The  said  Criminal
Revision was rejected by an Order dated 16th March, 1993.  A
Review Application  was  also dismissed by  the  Additional
Session Judge on 11th May 1993.

      Thereafter  the proceedings under Section 145 Criminal
Procedure  Code were resumed. Statements of  parties were
recorded.    In the  course  of   her statement  the 1st
Respondent, inter alia, stated as under :

      "The  Civil  Suit which has been filed regarding this
land  which  is Suit No.  280 of 1990. In respect  of the
disputed  land which is the subject matter of the  suit  an
order  for  maintain  status-quo has been  passed  The
Civil  Suit,  I have  filed  in  the  Civil  Court  is for
dispossession  of Amrit Lal and Prem Kali from the  disputed
land. This  suit has been filed for obtaining stay  order
against Sharda Prasad."


      Thus  the 1st Respondent admitted that the civil Suit
was  in respect of this land i.e.  the land in respect  of
which  proceedings under Section 145 Criminal Procedure Code
had  been adopted.  The 1st Respondent also admits that the
Suit  is  for  possession and for stay. Very fairly  it  is
conceded  before  us that the land in respect of  which the
proceedings  under  Section 145 Criminal Procedure Code was
adopted were part of the properties in respect of which Suit
No.  280 of 1990 had been filed.

      After  the statement of the parties had been recorded,
an   Application  was  made  by  the  Appellant  that the
proceedings under Section 145 Criminal Procedure Code may be
discontinued/dropped  in  view of the pending civil Suit  in
which an order of maintenance of status quo had already been
passed.  By  an  Order dated 9th June,  1999, the  S.D.M.
dropped the proceedings under Section 145 Criminal Procedure
Code by concluding that there was no propriety in continuing
the  proceedings  under Section 145 Criminal Procedure Code
when  the  civil  Court was in seisin of the matter  and  an
Order for maintaining status quo had already been passed.

      Against  the  Order  dated  9th June,  1991,  the 1st
Respondent  filed Criminal Revision No. 1230 of 1999 before
the Allahabad High Court.  The Criminal Revision Application
was  allowed by the learned single Judge, who set aside the
Order  dated 9th June, 1999 and remanded the matter back  to
the  trial  Court for resuming the proceeding under  Section
145  Criminal Procedure Code.  The only ground on which the
learned single Judge has set aside the Order dated 9th June,
1999  is  that earlier an  Application  for  dropping the
proceedings  under  Section 145 Criminal Procedure Code had
been  made and dismissed and that the Revision against that
Order  had also been dismissed by the Sessions Court by the
Order dated 11th May, 1993.  It was held that the Order 11th
May,  1993 had become final between the parties and was thus
binding.   It was held that in view of that Order the  trial
court could not have accepted the contention and should have
rejected  the Application for dropping the proceedings.  It
was  held that in view of that Order the only option left to
the  Magistrate was to decide the proceedings under  Section
145  Criminal  Procedure Code between the parties on  merit.
It is this Order which is assailed in this Appeal.

      We  have heard the parties at length.  In our view the
High Court has committed an error in setting aside the Order
of  the Magistrate on the basis that the earlier Order was
final  and binding.  The earlier Orders were interim Orders.
They  were passed before any evidence or statements had been
recorded.  Those Orders were passed only on the basis of the
contentions  of the  parties. At   that  stage  the 1st
Respondent  had contended that the civil proceedings did not
relate to  the same  properties in respect  of  which the
proceedings  under Section 145 Criminal Procedure Code were
adopted.  Thereafter statements were recorded in the Section
145  proceedings.   In her  statement the  1st  Respondent
admitted  that proceedings  under   Section  145   Criminal
Procedure  Code were in respect of property which formed the
subject-matter of the civil Suit and in respect of which an
Order  for maintenance of status quo had been passed by the
civil  Court. The  S.D.M.  was bound to  take a  decision
afresh based  on the statements before him.  It is  settled
law  that  interim  Orders, even though they may  have been
confirmed  by  the  higher  Courts, never bind and  do not
prevent passing  of  contrary Order at the stage  of  final
hearing.  The learned single Judge of the High Court appears
to have lost sight of this.

      The  learned  single Judge also failed  to  appreciate
that  the earlier Orders were passed on the footing that the
civil  proceedings related to different properties and were
between different  parties.  Subsequently, when  it  became
clear that the civil proceedings were in respect of the same
properties  and between the same parties even the  factual
position  had  changed.  For that reason also the  earlier
Order would not be binding.

      The question then is whether there is any infirmity in
the Order of the S.D.M. discontinuing the proceedings under
Section 145  Criminal Procedure  Code.  The  law  on this
subject-matter has  been  settled by the decision  of this
Court  in  the case of Ram Sumer Puri Mahant vs.   State  of
U.P.   &  Ors., reported in 1985 (1) S.C.C.  427.   In this
case it has been 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 under Section 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.  We are, therefore, satisfied that
parallel proceedings should not continue."


      We  are  unable  to  accept the  submission  that the
principles laid down in Ram Sumers case would only apply if
the  civil  Court  has already adjudicated  on the  dispute
regarding the property and given a finding.  In our view Ram
Sumers case is laying down that multiplicity of litigation
should be  avoided  as it is not in the  interest  of the
parties and  public time would be wasted  over meaningless
litigation.   On  this principle it has been held that when
possession  is being examined by the civil Court and parties
are  in a position to approach the civil Court for  adequate
protection  of the  property  during the  pendency  of the
dispute,   the parallel  proceedings i.e.   Section 145
proceedings should not continue.


      Reliance has  been  placed on the case  of  Jhummamal
alias  Devandas versus State of Madhya  Pradesh  &  Ors.,
reported in 1988 (4) S.C.C.  452.  It is submitted that this
authority  lays down  that merely because a civil  suit  is
pending does  not mean that proceedings under Section 145
Criminal  Procedure  Code should be set at naught.   In our
view  this  authority  does  not lay  down  any such  broad
proposition.  In this case the proceedings under Section 145
Criminal  Procedure Code had resulted in a concluded  order.
Thereafter the party, who had lost, filed civil proceedings.
After  filing the civil proceedings he prayed that the final
order  passed in the Section 145 proceedings be quashed.  It
is  in that context that this Court held that merely because
a  civil suit had been filed did not mean that the concluded
Order  under  Section 145 Criminal Procedure Code should  be
quashed.  
This is entirely a different situation.
In this
case  the  civil  suit had been filed first.   
An  Order  of
status quo  had already been passed by the competent  civil
court. Thereafter Section 145 proceedings were  commenced.
No  final  order  had been passed in the  proceedings  under
Section 145.  In our view on the facts of the present case
the  ratio  laid  down in Ram Sumers  case  (supra)  fully
applies.   We clarify that we are not stating that in  every
case  where  a civil suit is filed, Section 145 proceedings
would  never  lie.  It is only in cases where civil suit  is
for possession or for declaration of title in respect of the
same  property and where reliefs regarding protection of the
property  concerned  can be applied for and granted  by the
civil court that proceedings under Section 145 should not be
allowed to  continue. This is because the civil  court  is
competent  to  decide  the  question of title as  well  as
possession  between the parties and the orders of the  civil
Court  would be binding on the Magistrate.  .  In this view
of  the matter the appeal is allowed.  The impugned Order is
set   aside.   In  our view, the  S.D.M.   was  right  in
discontinuing  the  proceedings under Section  145  Criminal
Procedure  Code.  The Order passed by the S.D.M.  on 9th  of
June, 1999 is restored.

      Before  we  part it  must be mentioned  that  in the
impugned  Order the High Court has passed strictures against
the  S.D.M.   The High Court has also directed the  District
Magistrate  to transfer the proceedings from the S.D.M. who
passed the  Order  dated 9th June, 1991.  In our  view the
strictures  were  uncalled for. We hope that in future the
High  Court  would not pass such strictures.  Two views are
always possible.   Merely  because the High Court  takes  a
different  view is no ground for passing strictures  against
the lower court.




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