Madras High Court
V. Jeyachandran @ Chandran vs The Sub Divisional Magistrate And ... on 22 April, 2002
ORDER A. Ramamurthi, J.
1. The petitioner filed this petition under section 482 of Criminal Procedure Code to quash the preliminary order passed by the 1st respondent under section 145(1) of Criminal Procedure Code dated 01.03.2002.
2. The case in brief is as follows:- The petitioner is running a hotel in the name and style of 'Hotel Ashok Bhavan' at Shop No.19, Thingal Nagar Bus Stand. The 4th respondent's father late Ramakrishnan Potti was the leaseholder of the said shop and after his demise, the 4th respondent succeeded the leasehold right. On 01.11.1998, the 4th respondent sublet the shop to the petitioner and he paid a sum of Rs.1,00,000/= as an advance and it was agreed to pay Rs.130/= per day as rent. The petitioner was regular in payment of rent and he had also spent Rs.3,25,000/= for the infrastructure. During December 2000, there was misunderstanding between the petitioner and the 4th respondent and thereafter, the 4th respondent filed O.S.No.178 of 2000 before Sub Court, Padmanabapuram for declaration that he has the right of exclusive possession for conducting hotel business in the said shop. He also filed I.A.No.354 of 2000 for interim injunction and obtained ad-interim injunction on 01.12.2000. After receiving the notice, the petitioner filed an application for appointment of Advocate Commissioner and the Commissioner after inspection also submitted a report that the staff of the hotel are paid only by the petitioner and the movables are belonging to him.
3.The petitioner filed O.S.No.22 of 2002 before District Munsif Court, Eraniel for permanent injunction relating to the very same property and also filed I.A.No. 73 of 2002 for interim injunction. The 2nd respondent filed counter admitting the possession of the shop held by the petitioner and sought dismissal of the petition as not maintainable since already a suit is pending in the Sub Court. The 1st respondent issued a letter to the Inspector of Police, Eraniel to take necessary action on the complaint of the 4th respondent. The concerned police officer has not sent any report. On 01.03.2002, the 1st respondent issued preliminary order under section 145(1) of Criminal Procedure Code on the report of respondents 2 and 3 that the shop is very near to Thingal Nagar Bus Stand, there is a possibility of breach of peace due to the dispute between the petitioner and the 4th respondent. They were ordered to appear before the 1st respondent on 18.03.2002 to put in written statement to the claim in respect of the actual possession of the subject of dispute. The preliminary order is illegal and liable to be set aside.
4. Crl.M.P.No.3105 of 2002 has been filed by the 4th respondent to vacate the stay granted in Crl.M.P.No. 2638 of 2002 by this Court.
5. Heard the learned counsel for the parties.
6. The point that arises for consideration is whether the preliminary order passed by the Executive Authority dated 01.03.2002 is proper and correct ?
7. Point: It is the specific case of the petitioner that he is running a hotel under the name and style of 'Hotel Ashok Bhavan' at Shop No.19, Thingal Nagar Bus Stand, which belongs to Thingal Nagar Town Panchayat, Kanyakumari District. This property was said to have been taken on lease by the petitioner from the 4th respondent under a lease deed dated 01.11.1998 and he parted with a sum of Rs.1,00,000/= by way of advance and the rent per day was Rs.130/=. The petitioner had also spent a sum of Rs.3,25,000/= for infrastructure. It appears that there was misunderstanding between the petitioner and the 4th respondent and the 4th respondent filed a suit in O.S.No.178 of 2000 before Sub Court, Padmanabhapuram for a declaration that he alone has got the exclusive right of possession for conducting the hotel business in the shop and he also filed I.A.No.354 of 2000 and obtained ad-interim injunction also. Only thereafter, the petitioner filed another suit O.S.22 of 2002 before the District Munsif Court, Eraniel for permanent injunction relating to the very same property.
8. Learned counsel for the petitioner mainly contended that the preliminary order passed by the 1st respondent dated 01.03.2002 is illegal and arbitrary. The 1st respondent issued the preliminary order when there are two suits pending before the competent Civil Courts. The preliminary order would amount to interfering in the adjudication of the suit pending in the Civil Court. He also failed to observe the statutory provisions as enumerated in section 145. The Executive Magistrate has no power to invoke section 145 when a suit for declaration of title or possession is pending in a Civi Court. The 1st respondent, in fact, acted only upon the report of respondents 2 and 3. Under section 145 of Criminal Procedure Code, the 1st respondent is empowered to act only upon the report of the concerned police and respondents 2 and 3 are not police officials.
9. It is admitted that the 4th respondent filed a suit with reference to the same property before Sub Court and at a later point of time, the petitioner himself filed a separate suit for permanent injunction with reference to the very same property. Only thereafter, the 1st respondent Executive Authority has issued the preliminary order calling upon the parties to appear before him and file the written statement. It is settled position of law that when once the Civil Court had taken note of the dispute between the parties with reference to the declaration or possession, then it is not open to the Executive Authority to entertain any application. Further more, to invoke section 145 of Criminal Procedure Code , there should be a report from the competent police officer alleging that there was any threat to law and order or there is any possibility of breach of peace in that area. Admittedly, no such report has been given by any police officials so as to enable the 1st respondent to issue such notice.
10. Learned counsel for the 4th respondent relied on the decision reported in Ram Sumer Puri Mahant ..vs.. State of U.P. and others (1985 Crl.L.J.752), wherein it is observed that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding under section 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue.
11. It has also been held in Magdoom, K.S. ..vs.. N.S. Jalal and another (1988 L.W.(Crl.)89) reiterating the very same proposition. It has also been held in Amresh Tiwari ..vs.. Lalta Prasad Dubey (AIR 2000 SC 1504) as follows:-
"It cannot be said 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".
These decisions are applicable to the case on hand.
12. Learned counsel for the petitioner relied upon an unreported judgment of this Court in Crl.O.P.No. 6487 of 2001 dated 27.08.2001; but a perusal of the same clearly indicated that there is no application to the case on hand.
13. It is therefore clear from the aforesaid discussion and decisions that when the matter had already been taken cognizance by the Civil Court, the issue of preliminary order by the 1st respondent under section 145(1) of Criminal Procedure Code is not proper and correct and as such, it is liable to be quashed.
14. For the reasons stated above, the petition is allowed and the preliminary order passed by the 1st respondent under section 145(1) of Criminal Procedure Code dated 01.03.2002 is quashed. The parties are directed to abide by the result of the civil suits. Consequently, Crl.M.P.2638 of 2002 is closed and Crl.M.P.No.3105 of 2002 is dismissed.