Delhi High Court
Gurbachan Singh vs State And Others on 22 February, 1994
Equivalent citations: ILR1994DELHI469
JUDGMENT Jaspal Singh, J.
1. Here is yet another son crossing swords with his father. The fall out is litigation, civil as well as criminal. The present is a revision petition seeking to quash the proceedings initiated by a Sub-Divisional Magistrate under Section 145 of the Code of Criminal Procedure initiated on the complaint of the son. Obviously, the revision petitioner is the father.
2. Let me first provide the backdrop.
3. Inderjit Singh Sahni and his father Gurbachan Singh entered into partnership vide deed of Partnership dated May 1, 1992. The business was to be run under the name and style of M/s. Bakshi Transport Service from the premises bearing shop No. 468, First Floor, Old Lajpat Rai Market, Chandni Chowk. Soon enough the venture ran into rough weather and saw the son petitioning this court under Section 20 of the Arbitration Act. Gurbachan Singh, the father, was arrayed as the respondent, Along with petition was moved an application under Section 41 read with Schedule II of the Arbitration Act and so also under Order 39 Rules 1 and 2, Order 40 Rule 1, Order 26 Rule 9 and Section 151 of the Code of Civil Procedure. The petition and the application noticed above, were taken up by the court on January 5, 1993 when the following order was passed on the application.
"Notice returnable before the Joint Registrar on 16.2.1993. The defendant is restrained from selling, transferring, disposing of or parting with possession of shop premises No. 468, Old Lajpat Rai Market, Delhi, till further orders"
4. On January 15, Inderjit Singh Sahni moved an application under Section 145 of the Code of Criminal Procedure and on January 20, the Sub-Divisional Magistrate passed the following order under sub-section (1) of Section 145 of the Code :
"Whereas on receipt of a petition under Section 145 Cr.P.C. from the petitioner that there is a dispute of possessions which is likely to cause breach of peace between the above mentioned parties over the possession of the shop No. 468, Old Lajpat Rai Market, Delhi-6.
And whereas I have heard the petitioner at great length and also gone through the Kalandra, I am satisfied that such a dispute of possession likely to cause breach of peace does exist between the above said parties.
And whereas it is necessary to decide the factum of actual possession with regard to the disputed premises, I, R. C. Meena, SDM, Kotwali having the local jurisdiction in the area do hereby call upon both the parties to appear in person or through pleader on 27.1.1993 at 10.00 a.m. and put in there written statements and other evidence as they deem fit with regard to the actual possession of the disputed premises.
S.H.O., P.S. Kotwali is directed to serve a copy of the order to each of the parties and also to affix a copy of the same at some conspicuous place or near the subject of dispute. The compliance report should reach to the undersigned within three days.
Given under my hand land seal of this court on 20.1.1993.
(R. C. MEENA) SUB-DIVISIONAL MAGISTRATE KOTWALI, DELHI"
It is claimed by the father that although the learned Sub-Divisional Magistrate was made aware of the civil litigation and the order passed by this court on January 5, 1992, he appeared to be determined to pass an order under Section 146 of the Code. Hence this petition for quashing of the proceedings on the ground that the dispute being of civil nature and being already under adjudication, parallel proceedings under Section 145 of the Code should not be allowed to proceed.
5. Having provided the spectrum, it is time to deal with the arguments advanced.
6. During arguments it was contended by Mr. P. C. Jain, Senior Advocate appearing for the petitioner father, that as in the petition under Section 20 of the Arbitration Act and so also in the application accompanying it, Inderjit Sahni had admitted himself to be out of possession of the premises and the present petitioner to be in actual physical possession of the same and as the interim order passed by the court on January 5, 1993 also accepted the possession of the present petitioner and further as the court had passed an order of injunction specifically with regard to possession, therefore, for that reason, parallel proceedings under Section 145 of the Code would not be permissible. In support, he drew my attention to the judgment of the Supreme Court in Ram Sumer Puri v. State of U.P. , and more particularly to the following observations made therein :
"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 and the order of the learnded Magistrate should be quashed."
Mr. Jain also drew my attention to two judgments emanating from the Punjab and Haryana High Court namely. Madan Lal and others v. Krishan Lal and others (1987 C.C. Cases 92 (HC)), and Karanail Singh and others v. Sub-Divisional Magistrate and others (1992 (2) R.C. Rep. 526) which, I must say, do lend support to the plea raised by the petitioner.
7. However, on the other hand, the learned counsel for the respondent contended that since the court in the petition under Section 20 of the Arbitration Act had merely passed an interim order, the dispute with regard to possession could not be taken to have been "adjudicated" and for that reason the judgment of the Supreme Court in Ram Sumer Puri's case could not be held to be applicable. It was further contended that mere pendency of civil litigation involving the possession of the premises would not oust the jurisdiction of a competent Magistrate, in appropriate cases, to proceed under Section 145 of the Code and since, in the present case, the learned Sub-Divisional Magistrate had issued the notice under sub-section (1) of Section 145 after having fully apprised himself of the prevailing situation, it could not be said that he had acted beyond his jurisdiction and, if that be so, the proceedings could not be quashed.
8. I may hasten to add that in support of the first submission made by the learned counsel for the respondent, reliance was placed on a judgment of a single judge of this court in lqbal Singh v. The State and others and particularly to the following observations made therein :
"Ram Sumar Puri Mahont v. State of U.P. and others, (supra) which speaks of dropping of the criminal proceedings in the face of a pending civil litigation wherein the question of possession is involved and has been adjudicated upon is not attracted for the reason that the civil litigation has not been adjudicated upon as yet",
9. Yet another judgment to which my attention was drawn is also from this court. It it Tirath Das v. State (1989 Rajdhani L.R. 115), wherein it was held by a learned single Judge that proceedings under Section 145 of the Code cannot be quashed only on the ground that a suit had been filed and was pending.
10. With regard to the second contention, the learned counsel for the respondent had learned heavily on Sajjan Singh v. Sajjan Singh (1970 (2) U.J. (SC) 75).
11. I think that none of the judgments relied upon by the learned counsel for the respondent is of any assistance to him. Let me show how.
12. In Iqbal Singh v. The State (supra), the learned Judge declined to interfere on the ground that the civil suit was still pending and as such had not yet been "adjudicated" upon. With all respect, the meaning so assigned to the word "adjudicated" was never at the back of the Supreme Court judgment in Ram Sumer Puri's case, "Adjudication" may not be final. It may be tentative at the interim stage, and I say so on the basis of the Supreme Court judgment in Dharampal and others v. Ramshri and others .
13. In Tirath Dass v. State (supra), at the time the proceedings under S. 145 of the code were initiated there was no order of the Civil Court in force with regard to the property in question. It was in these circumstances that it was held that the proceedings under S. 145 of the code could not be quashed on the ground that a suit had been filed and was pending. Thus, it would be seen that the judgment in question can have no application to the facts before me.
14. A word or two about Sajjan Singh v. Sajjan Singh (supra) also. Its perusal would go to show that it too is clearly distinguishable on facts. In the said case preliminary order and order for attachment were passed by the Sub-Divisional Magistrate on October 28, 1967. On January 24, 1968 the respondent filed a suit for permanent injunction against the complainant and on January 25, 1967 obtained a temporary injunction to the effect that his possession be not disturbed. After obtaining the said order, the respondent applied before the Sub-Divisional Magistrate for stay of proceedings under Section 145. The Sub-Divisional Magistrate, however, dismissed the application and ordered the petitioner to take over the disputed property as a receiver. Upon revision, the Sessions Judge made a reference to the High Court recommending the setting aside of the order for appointment of the receiver. The High Court took the view that the order of temporary injunction had no effect on the proceedings under Section 145 of the Code and that the order of attachment and so also the order appointing a receiver, were valid. The matter then went to the Supreme Court which declined to interfere with the order of the High Court and sent the case back to the Sub-Divisional Magistrate leaving it to him to decide whether receiver should be continued or not. However, he was directed that during the operation of the injunction order possession of the premises be not delivered to the other party. As would be borne out from the narrative of the facts, neither any civil suit was pending nor there was any adjudication at the time of initiation of proceedings under Section 145 of the code.
15. The ratio of the decision in Ram Sumer's case (supra) is that when a civil suit is pending a party to it should not be permitted to litigate before the criminal court in respect of the same subject-matter but where a concluded order under Section 145 of the code has already been made by the Magistrate of competent jurisdiction it should not be set at naught merely because the unsuccessful party has approached the civil court. Admittedly in the case before me no concluded order has been passed so far by the Sub-Divisional Magistrate. A restraint order, as noticed above, had already been passed by this court with regard to possession of the suit premises before even the initiation of the proceedings under Section 145 of the Code. In such a situation continuation of the proceedings before the Sub-Divisional Magistrate would clearly amount to an abuse of the process of the court.
16. Even in Tirth Dass v. State (supra) it was observed at page 119 :
"Broadly speaking, if in a civil suit an injunction has been obtained, may be at the initial stage or at the final stage, which makes it clear with regard to the question of possession then the parallel proceedings under Section 145 of the Code of Criminal Procedure are not to be continued.
17. This is not a case where the Sub-Divisional Magistrate lacked inherent jurisdiction to pass the impugned order. This is only a case where the Magistrate has committed an error in the exercise of the jurisdiction. Though it is an error which is not shown to have resulted in miscarriage of justice, yet this court will intervene as, in the face of an already existent injunction order passed in a pending civil suit, a party should not be allowed to litigate before the criminal court also.
18. Two more points raised by the learned counsel for the respondent may be dealt with, before I say adieu to the case. It was contended that a proceeding under Section 145 of the Code cannot be directed to be dropped because a person in wrongful possession may have his civil suit dismissed and thereby perpetuate his wrongful possession. However, I need not delineate on it as in the matter in hand it is the respondent himself who is the petitioner before the civil court and complainant before the Sub-Divisional Magistrate. The petitioner before me thus cannot withdraw the civil proceedings.
19. The last point urged was in the form of a question. What would be the position, the counsel queried, where despite an order of injunction a Sub-Divisional Magistrate apprehends imminent breach of peace with regard to the suit property ? Would the Sub-Divisional Magistrate, in such a situation, be not justified in resorting to Section 145 of the Code ? My answer is that though resort to Section 145 may not be beyond his jurisdiction, he would be committing an error in so acting. In such a situation he may well resort to Section 107 read with Section 150 or read with Section 151 of the Code depending upon the situation. (See Sardari Lal v. The State (1980 Cri LJ 1151)).
20. A word or two more. Of course, my brother Anil Dev Singh, J. in Smt. Deepika and others v. State and others (Cri Rev 129 of 1992), by his order dated February 7, 1993 has referred the matter to a Division Bench. However, in the said case, the civil court had merely passed an order to maintain status quo. The case is thus distinguishable.
21. For the reasons recorded above the petition is allowed and the proceedings before the learned Sub-Divisional Magistrate are quashed.