Gujarat High Court
Pratamesh Pharms Pvt. Ltd vs The State Of Gujarat & 8 on 19 December, 2016
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/326/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 326 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PRATAMESH PHARMS PVT. LTD.....Applicant(s)
Versus
THE STATE OF GUJARAT & 8....Respondent(s)
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Appearance:
MR I H SYED, ADVOCATE FOR MR VISHAL K SEVAK, ADVOCATE for the
Applicant(s) No. 1
MR R R MARSHALL, SENIOR COUNSEL WITH
MR P P MAJMUDAR, ADVOCATE WITH
MR HARSHIL DATTANI, ADVOCATE for the Respondent(s) No. 3 , 5
MR UTPAL M PANCHAL, ADVOCATE for the Respondent(s) No. 4 - 8
MR MANAN MEHTA, APP, for the Respondent State.
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
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Date : 19 /12/2016
CAV JUDGMENT
1.Heard learned Advocate Mr. I H. Syed for learned Advocate Mr. Vishal K Sevak for the petitioners and learned Senior Counsel R R Marshal with learned Advocates P.P. Majmudar, Utpal M Panchal and Darshil Dattani for the respondents, so also learned APP Mr. Manan Mehta for respondent-State and perused the record.
2. The petitioner herein has challenged the judgment and order dated 3rd April, 2006, by the Sessions Court, Surat in Criminal Revision Application No. 166 of 2001. By such impugned judgment, the Sessions Court has while allowing the revision preferred by present respondent no. 3 quashed and set aside the judgment and order dated 3rd September,2001, in Umra Case No. 12 of 2001 by the Additional Executive Magistrate of Surat. The Sessions Court has also awarded cost of Rs. 1500/- to be paid by present petitioner to the respondent no. 3. While setting aside such order, the Sessions Court has also directed that the activities and proceedings of the Umra Poilce pursuant to order dated 3rd September, 2001, in said Umra Page 2 of 65 HC-NIC Page 2 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT Case No. 12 of 2001 shall stand null and void. The order of the Additional Executive Magistrate in such Umra Case No. 12 of 2001 is under the provision of Section 145 of the Code of Criminal Procedure,1973,(hereinafter referred to as "the Code"), whereby the Additional Executive Magistrate of Surat has directed the Umra Police to get the possession of the suit property being land of Survey No. 592 of Block No. 387 of Village Vesu, Taluka Choryasi, District: Surat vacated from the present respondents and to hand it over to the present petitioner by drawing Panchnama and report of such activity.
3.The factual matrix as submitted by the petitioner can be summarized in following manner:
14.03.1990 Unregistered Satakhat executed by the respondent nos. 4-8 in favor of the respondent no. 3 without possession of land bearing revenues Survey no. 592, new survey no. 387, ad-
measuring 20538 sq. mts.
situated at Village Vesu,
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Taluka- Choryasi, District-
Surat.
10.10.1990 Possession receipt was
executed for the said
land. The possession is
stated to be handed over
by respondent nos. 4-8 to
the respondent no.3.
(There is signature of
one Hemaben Ramanbhai
Patel, who was in fact
born on 02.06.1976 and
was minor at the time of
execution of this
satakhat. It indicates
that this possession
receipt is not genuine.)
10.04.1991 Registered satakhat
(registration no.
3977/1991 executed by
respondent nos. 4-8
through their power of
attorney in favour of
Unrohit Sahakari Mandali
Ltd.
1997 One M/s. Tirupati
Corporation filed Special
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Civil Suit No. 381/1997
(SCS 381/1997) against
Unrohit Sahakari Mandali
Ltd. And present
respondent nos. 4-8.
02.06.2000 A settlement was arrived
03.06.2000 in SCS 381/1997 whereby
5/6th portion of the said
land was sold to the
present petitioners by a
registered sale deed
dated 03.06.2000 bearing
registration no.
3037/2000.
06.07.2000 The compromise terms were
placed on the record of
SCS 381/1997 and the said
was disposed of.
21.05.2001 Regular Civil Suit No.
194/2001 was filed by
respondent no.3- Maldevbhai
Mashribhai Bhatu against
respondent nos.4 contending
that the respondent nos. 4-
8 had executed a satakhat
on 14.03.1990 and had given
possession of the said land
on 10.10.1990 and that the
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respondent nos. 4-8 are
trying to disturb the
possession of the
respondent no. 1. Such RCS
194/2001 was filed on
21.05.2001. It would be
pertinent to point out that
the prayer in RCS 194/2001
was only in respect of
possession of the suit
premises. There was no
prayer in respect of any
specific performance and/or
execution of any sale deed
pursuant to satakhat dated
14.03.1990.
25.05.2001 The petitioner filed
Regular Civil Suit No.
199/2001 on 25.05.2001
against the respondent nos.
3-8 inter alia praying that
the respondents-defendants
be restrained from
disturbing the petitioners'
possession of the suit
land. The petitioners also
filed an application for
injunction wherein the
Hon'ble Court was pleased
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to pass ex-parte ad interim
injunction in terms of
paragraph 11(1) of the
injunction application on
the same day. The Hon'ble
Court was pleased to allow
the application vide order
dated 7.05.2002. The said
injunction is operating
till today.
25.05.2001 The petitioner had also
filed an application u/s.
145 of the Criminal
Procedure Code which was
numbered as Case No. 12 of
2001.
03.09.2001 The Executive Magistrate,
Surat decided Case No. 12
of 2001 and ordered the
P.I. Umra Police Station to
hand over possession of the
said land to the
petitioner. Accordingly the
possession was handed over
to the petitioner.
11.09.2001 The respondent no.3 filed
Criminal Revision
Application No. 166/2001
before the District Court
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at Surat.
07.05.2002 The Court of Civil Judge
(S.D.) was pleased to allow
the application in RCS
199/2001. The said
injunction is operating
till today.
4. It is undisputed fact that there is dispute regarding ownership and possession between both the parties with reference to the property under reference. It is also undisputed fact that pursuant to such dispute to confirm the right and title and possession, respondents have initially filed one Regular Civil Suit No. 194 of 2001 on 21st May, 2001, and with collusion with the defendants in such suit. Because of such collusive decree, respondents had tried to get the right and title so also possession of the property in question which has resulted into multi-litigations between the parties amongst which one litigation has reached up to this Court in the form of present Revision as back as in the year 2006. Therefore, since the year 2006, other proceedings between the parties before the Trial Courts are probably struck. Hence, there is no option but to decide such Revision at the earliest.Page 8 of 65
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5. This Revision Petition was filed in the year 2006, challenging the order dated 3rd April, 2006. After service of notice to the respondents and after hearing both the sides on 1st September, 2006, the Co-ordinate Bench of this High Court has by a reasoned and detailed order granted interim relief in terms of para 23(c) of the Revision Petition which reads as under:
"(c) Pending hearing and final
disposal of this Criminal Revision
Application, this Hon'ble Court may be pleased to direct the parties to maintain status-quo into any receipt of the land in question and further be pleased to direct Respondent No. 3 and Respondent No. 9 not to disturb the possession of the land of the petitioner."
While granting interim relief in aforesaid terms the Co-ordinate Bench has also directed the Respondent No. 3 to hand over the peaceful possession of the land in question to the petitioner, because it was taken away by the respondent pursuant to the impugned order dated 3rd April,2006, by the Sessions Court. At the same time the Court has imposed condition on the present petitioner also, whereby petitioner is directed that he shall not sell, mortgage, lease, sub-lease or pledge or otherwise Page 9 of 65 HC-NIC Page 9 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT transfer the suit property in any manner so also the possession of the land in question to anybody including any institute, firm or the like. The petitioner is also directed and restrained from putting any construction or any other structure upon the land which is disclosed in operative part of such order as old Survey No. 592 (new Survey No. 387) ad-measuring 20,538 sq. mtrs situated at Village Vesu, Taluka- Choryasi of Surat District. The respondent no. 3 herein is further directed not to interfere with the possession of the land in question either on his own or through agents and servants and shall hand over the possession to the applicant.
6. Such order is in detail, perusal of which clearly confirms that the Co-ordinate Bench has taken care of all rival submissions by both the sides and assigned as many as five reasons for granting interim relief as aforesaid. Since discussions and reasons are very well disclosed in such order dated 1st September, 2006, I do not wish to reproduce the same because it is argued at length that since such interim order is subject to final order and therefore it cannot be relied upon or made a ground for deciding the revision Page 10 of 65 HC-NIC Page 10 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT finally. However, it cannot be ignored that such order dated 1st September, 2006 was challenged by present respondents before the Hon'ble Supreme Court in Special Leave to Appeal (Criminal) No. 4754 of 2006 wherein even while issuing notice by order dated 13th October, 2006 the Hon'ble Supreme Court was aware that possession is taken by respondent before it i.e. present petitioner pursuant to such order dated 1st September, 2006 when Hon'ble Supreme Court has passed following order:
"Issue Notice.
Meanwhile, respondent who have already taken possession of the land in dispute, are restrained from changing the character of the land or alienating the same by creating third party rights."
Therefore, practically Hon'ble Supreme Court has simply endorsed the operative order dated 1st September, 2006, wherein the Co-ordinate Bench has already imposed such condition upon the present petitioner.
7. However, when such S.L.P. was finally disposed of on 9th January, 2009, the Hon'ble Supreme Court has dismissed the same in summary manner by a simple order which reads thus:
Page 11 of 65HC-NIC Page 11 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT "We find no merit in this petition which is accordingly dismissed."
Therefore, after full fledged hearing even Hon'ble Supreme Court has while rejecting the SLP preferred by the respondent no. 3, confirmed the interim order dated 1st September,2006, in present revision.
8. Therefore, though it is settled legal position that an interim order can be modified or even vacated or changed when matter is decided finally, in the present case the fact remains that the interim order dated 1st September, 2006, by this Court is practically approved and confirmed by the Hon'ble Supreme Court. Moreover, it cannot be ignored that even before confirming the order at initial stage itself the Hon'ble Supreme Court has practically endorsed the interim order dated 1st September, 2006 passed by the Co-ordinate bench of this Court as recorded herein above.
9. Therefore, though it is settled legal position that interim order cannot be considered as final order and it may be quashed and set aside or modified while deciding the matter finally, in the present case practically when interim order has been endorsed and confirmed by the Hon'ble Supreme Page 12 of 65 HC-NIC Page 12 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT Court and that too after hearing both the sides by endorsing the directions in the interim order, practically such interim order has become final and may not need any interference. However, other side has argued at length on such issue that, considering the over all facts, circumstances and legal submissions, revision cannot be allowed. When it is submitted that the interim order in revision cannot be considered as a final order, it would be appropriate to scrutinize and determine all other issues raised by the respondent. Thereby, when all other issues are being discussed and determined in following manner, now it is clear and obvious that the final determination in this revision is not solely based upon the interim order. This can be treated as one of the reasons for non-production or reference of the text of the order dated 1st September,2006; though it is in detail and sufficient to allow the petition solely on such determination which is confirmed by Hon'ble Supreme Court by order dated 09.01.2009 in Special Leave Petition (Criminal) No. 4754 of 2006, which is already referred herein above.
10. Learned advocate Mr. I H Syed for the petitioners has submitted that, when Page 13 of 65 HC-NIC Page 13 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT respondent no. 3 has in collusion with some person obtained a consent decree without joining petitioner as a defendant in Regular Civil Suit No. 194 of 2001 and when possession of the petitioner is disturbed, which may result into breach of peace and disturbance at the place, petitioner has no option but to initiate proceedings under Section 145 of the Code of Criminal Procedure, 1973.
11. Since entire case is based upon the powers of the Executive Magistrate under Section 145 of the Code, reference of relevant provisions of Section 145 would be relevant. Section 145 of the Code is part of Chapter X of the Code which provides for maintenance of public order and tranquility wherein Part-D provides for "Disputes as to immovable property" in four Sections viz. 145 to 148. Section 145 provides for procedure where dispute concerned with land is likely to cause breach of peace. The bare reading of the Section makes it clear that whenever a Executive Magistrate is satisfied from a report of a Police Officer or upon other information that a dispute is likely to cause breach of peace, concerning any land within local jurisdiction, then Executive Magistrate Page 14 of 65 HC-NIC Page 14 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT shall make an order in writing stating grounds of being satisfied, and requiring the parties concerned in such dispute to attend the Court in person or by pleader on a specific date or time and to put in writing submissions or respective claims on receipt of facts of actual position of the subject in dispute. After following the procedure envisaged under the Code, the Executive Magistrate shall then without reference to the merits or the claims of any of the parties to a right to possess the subject in dispute, peruse the submissions so put, hear the parties, receive all such evidence as may be produced by them and take such further evidence, if any, as he thinks necessary, and if possible, decide whether any and which of the parties were at the date of the order made by him under sub-section (1), is in possession of the subject in dispute. Whereas the proviso to sub-section (4) empowers the Magistrate to restore the possession. Therefore, such proviso would be relevant to be recalled here which reads as under:
"Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-Page 15 of 65
HC-NIC Page 15 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1)."
The remaining sub-section from sub-section (5) to sub-section(10) provide for different exigencies which are not much relevant at present in this case and therefore same has not been discussed in detail.
12. Therefore, the fact remains that the Executive Magistrate has powers; either upon receipt of report of a Police Officer or upon other information regarding likelihood of dispute to cause breach of peace; to restore the possession of the person who was in possession of the property in question, but if he was forcibly and wrongly dis-possessed within two months before the date of such report or information received by the Executive Magistrate.
13. In view of above provision of law, if we peruse the factual details in the present case, as aforesaid it is undisputed fact that the dispute between the parties is with reference to ownership and possession of the suit property, wherein it is the case of the petitioner that they are purchasers by registered sale deed and thereby owner and Page 16 of 65 HC-NIC Page 16 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT occupant of the suit property against consideration and that respondent no. 3 herein has obtained one consent decree in a fraudulent manner to disturb their right, title and possession of the suit property and therefore it would result into disturbance at the suit property. Therefore, petitioner has initiated appropriate proceedings. However, while doing so, since there is issue regarding possession and since Executive Magistrate has power to restore the possession, if it is disturbed within two months prior to such proceedings, proceeding under Section 145 of the Code is selected considering it as a handy and speedy proceedings and therefore petitioner has filed a case before the Executive Magistrate under Section 145 of the Code of Criminal Procedure which is registered as MAG/Cr.P.C/Section 145/Case no. 12 of 2001, wherein by order dated 3rd September, 2001, the Executive Magistrate has ordered the respondent to hand over the possession to the present petitioner.
14. However, when such order was challenged before the Sessions Court under Section 397 of the Code, the Sessions Court has taken a view that during pendency of proceeding Page 17 of 65 HC-NIC Page 17 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT before the Executive Magistrate when petitioner has filed suits for confirming his right, title and even possession, the proceeding under Section 145 of the Code cannot be continued and needs to be stopped or dropped by the Executive Magistrate and to that extent the order of the Executive Magistrate is irregular and improper and thereby same was quashed and set aside as aforesaid. The perusal of the impugned order of the Sessions Court makes it clear that, Sessions Court has after recording rival submissions observed that in Regular Civil Suit No. 194 of 2001 there was a local inspection where possession was found with the respondent and the suit was compromised on 10th April,2001 whereby possession and right of the respondent no. 3 has been confirmed. However, the fact remains that such consent decree in Regular Civil Suit No. 194 of 2001 is under challenge in subsequent suit preferred by present petitioner i.e. Regular Civil Suit No. 199 of 2001. It is also undisputed fact that present petitioner has preferred another Special Civil Suit No. 317 of 2001. Thereby, petitioner has also challenged the so called agreement to sale, alleged to be executed by the original owner in favor of respondent no. 3. Therefore, one Page 18 of 65 HC-NIC Page 18 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT thing is certain that right and title of the respondent is only by consent decree which is under challenge and substantive suits are filed by the petitioner to safeguard his right and title whereas provisions of Section 145 of the Code is practically only for safeguarding the possession.
15. The Sessions Court has quashed the order of the Executive Magistrate on the ground that, Executive Magistrate has passed an order to restore the possession, considering that Executive Magistrate has no such power. However, the discussion with reference to provisions of Section 145 of the Code and reproduction of relevant proviso to sub- section (4) herein above makes it clear that in fact Executive Magistrate has got ample power to safeguard the possession and even to restore the possession and therefore, when order of the Sessions Court is based upon the effective and active order of the Executive Magistrate to restore the possession, it is certainly the result of material irregularity and illegality in as much as, the Sessions Court has considered that Executive Magistrate has no such power. In addition to such assumption and presumption, the Sessions Court has relied upon a decision of Allahabad Page 19 of 65 HC-NIC Page 19 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT High Court which is reported as the case between Shivbadansinh v. Adityaprasad Sinh reported in 1991 Ahmedabad Law Times 235 and also the case of Parwatiben Wd/o Ramsingh Rajput v. Parulben Wd/o Rajendrasing Rajput Reported in 2000(2) GLR 1742 of Gujarat High Court recording that in such decisions it is held by the respective High Courts that when the Civil Suits are pending for any disputed fact then Executive Magistrate should not have passed an order to seal the property. However, though such judgments will be discussed in detail with reference to relevant citations referred by the respondent, at this juncture, it cannot be ignored that all such judgments are to be considered in light of facts and circumstances emerging before the Court in particular case and unless there is specific dictum based solely upon law point, no judgment can be relied upon blindly without referring the facts and circumstances of each case which would hardly be similar or common. Otherwise also in any case the jurisdiction of the Sessions Court in a Revision Petition is otherwise also limited to the extent of verifying the irregularity if at all it is resulting into illegality whereas in the present case, it is undisputed fact that in a Page 20 of 65 HC-NIC Page 20 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT civil litigation preferred by the present petitioner the interim orders regarding possession of the property in question is in favor of the present petitioner and therefore, even Civil Court has considered that the petitioner has right over the suit property and therefore his possession is not to be disturbed. The Sessions Court has failed to appreciate that previous Civil proceedings and decree are under challenge on the ground of fraud and in such subsequent litigation competent Civil Court has confirmed that the petitioner has a right over the property and thereby his possession is protected. It is settled position that fraud vitiates all other rights and grounds.
16. So far as decision in Shivbadansinh (supra), is concerned, the citation of Ahmedabad Law Times is not available but perusal of the citation 2002(2)GLR 1742 makes it clear that there is typographical error in disclosing the details of such citations by the Sessions Court because though the name of the petitioner in such cited case is Parwatiben, in the impugned judgment it is cited as Prabhavatiben. So far as citation of Shivbadansinh(supra) is concerned probably Ahmedabad Law Times is wrongly stated because Page 21 of 65 HC-NIC Page 21 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT decision is stated to be of Allahabad High Court. Therefore, decision in Parwatiben (supra) is available at present to verify that whether such decision is sufficient to dismiss this petition or not. The perusal of the citation on the contrary confirms that in fact a civil litigation was already pending wherein there was interim relief in favour of the plaintiff, who is petitioner before the High Court and when there was no ad-interim stay in so far as possession is concerned i.e. when Civil Court was seized with the matter, by confirming the interim relief only to the effect of restraining the defendant from transferring or alienating the suit property and thereby when Civil Court has refused to grant interim relief qua possession, thereafter when plaintiff of such suit has preferred an application under Section 145 of the Code, before the Executive Magistrate and when Executive Magistrate has passed an order regarding possession which was otherwise refused by the Civil Court, the Single Judge of Co-ordinate Bench at the relevant time held that when Civil Suit is pending with regard to the same dispute of possession, the Executive Magistrate ought not to have passed order to seal the property. Considering that no such situation Page 22 of 65 HC-NIC Page 22 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT is prevalent in the present case, in as much as there was no order in favor of the respondent, which was the case in cited judgments, and when petitioner has not waited for relief which may be granted by the Civil Court, considering the fact that he was dis- possessed before couple of days from the date of application i.e. within two months prior to filing such application, and in absence of any effective order by the Civil Court on such date of application before the Executive Magistrate, it cannot be said that only because of such citation Executive Magistrate has no jurisdiction or powers to deal with the issue. The decision of Hon'ble Supreme Court which are referred hereinafter also make the position clear.
17. Therefore, the Sessions Court has gone beyond its jurisdiction in directing to reverse the situation of impugned order before it. In given set of facts and circumstances even if we rely upon the citations referred by the respondents, what is required to be decided at relevant time by the Sessions Court is only to the limited issue i.e. to stop or drop or to stay the proceedings under Section 145 of the Code in view of pending Civil litigation. At the cost of repetition, it is Page 23 of 65 HC-NIC Page 23 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT to be recorded that on the date of impugned order i.e. 3rd April, 2006 the orders of Civil Court are in favor of the present petitioner confirming the right and possession of the petitioner. Therefore, though the impugned order is by the Sessions Court, it being a Criminal Court, full weightage has not been given to the order of the Civil Court even if it is by a Judge of the lower cadre i.e. Civil Judge, Senior Division. It cannot be ignored that the order of the Civil Judge confirming the interim relief in favor of the petitioner has become final, since it was not challenged by the respondent before the higher Court. The order of the Civil Court below Exh. 5 in Civil Suit no. 199 of 2001 preferred by the present petitioner for declaration and permanent injunction is dated 7th May, 2002, copy of which is produced on record, which confirms that the application at Exh. 5 was allowed by the Civil Judge, Senior Division, Surat on 7th May,2002, and whereby ex-parte injunction granted in favor of the present petitioner being plaintiff in such suits was confirmed and made absolute till final decision of the suit. It is undisputed fact that such relief is regarding restraining the present respondent from interfering in the lawful Page 24 of 65 HC-NIC Page 24 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT possessions of the plaintiff in the property in question.
18. Therefore, even if we believe the submissions by the respondent, it goes against the impugned order whereby practically Sessions Court should refrain itself from passing such order except saying that proceeding under Section 145 of the Code shall stand stopped or dropped.
19. As against that, learned Senior Counsel, Mr. R R Marshall for the respondent has taken the Court through several other issues viz. pendency of the Civil litigation which is listed on page 159 of the record being the impugned order. The pendency of such litigation is undisputed fact, but so far as, continuance of the parallel proceeding before the Civil Court and the Executive Magistrate is concerned, now it is also undisputed fact that practically both the proceedings were started by the petitioner on the same day and therefore when though there is provision in Specific Relief Act to restore the possessions by the Civil Court, if petitioner has selected the provision under Section 145 of the Code to safeguard the possession, it cannot be said that before Civil Court Page 25 of 65 HC-NIC Page 25 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT decides the rights, of the parties, the Magistrate has no authority or power to pass appropriate orders which is otherwise allowed by statute empowering the Executive Magistrate pursuant to the provision of Section 145 of the Code. For the purpose, reference of text of Section 145 of the Code is material wherein sub section (4) specifically provides that the Magistrate "shall", without reference to the merits or claims of any parties to right to possess the subject of dispute after following the procedure, described in the sub-section(1), decide whether any and which of the parties was, at the date of the order made by him under sub-section (1) is in possession of the subject in dispute and as per proviso to such sub-section, which is reproduced herein above, the Executive Magistrate is even empowered to restore the possession if somebody is wrongly dis-possessed, within two months before the date of receipt of report or information by him. Therefore, no fault can be found in the order of the Executive Magistrate and to that extent, quashing such order by the Sessions Court certainly results into irregularity and illegality.
20. The scrutiny of record shows that though Page 26 of 65 HC-NIC Page 26 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT the respondent is relying upon para 14 of the impugned order, emphasizing that the Sessions Court has relied upon pendency of Civil Court, it seems that factually there is some improper disclosure by the Sessions Court and to that extent also there is material irregularity which results into illegality in the impugned judgment.
21. The learned Senior Counsel Mr. Marshall has emphasized on the phrase "if possible"
which appears in sub-section (4) of Section 145 submitting that it is not mandatory for the Magistrate to decide the issue regarding possession, but it can be decided only if it is possible based upon the merits. With due respect, the reading of the entire sub- section with its proviso on the contrary, reflects an altogether different purport as can be inferred from the wordings of the sub- section itself that the Magistrate shall decide certainly if possible to confirm the possession of either party but without reference to the merits or the claims of either party and therefore, it cannot be said that the wordings "if possible" is prominent in assigning power to the Executive Magistrate. On the contrary, the prominent phrases in such sub-section is "shall" and Page 27 of 65 HC-NIC Page 27 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT "without reference to the merits and claims".
22. The respondent is also relying upon a sale deed in favor of the petitioner referring the list of companies which have purchased the land in question, relying upon their share being only 1/15th of each of them in undivided property and therefore it is tried to be submitted that in view of such limited share only, the possession of the petitioner, cannot be confirmed. However, the fact remains that so far as possession and right of possession of the petitioner is concerned, except the Sessions Court in impugned judgment even Civil Court and pursuant to interim order in this revision even the Hon'ble Supreme Court has confirmed the possession of the petitioner and therefore the share or other issues raised by the petitioner are not much material at this stage.
23. The sum and substance of the argument by the respondent is to the effect that interim order cannot be made final and that when Civil Suits are pending wherein interim relief is in favor of the petitioner, proceedings under Section 145 of the Code has no meaning and it is required to be stopped Page 28 of 65 HC-NIC Page 28 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT or dropped. In support of such submissions, learned Senior Counsel Mr. Marshall is relying upon following citations;
(i) Amresh Tiwari v. Lalitha Prasad Dubey and Another reported in 2004(4)SCC 440 wherein it is held that interim orders, even though they may have been confirmed by the higher Courts, never bind and do not prevent passing of contrary orders at the stage of final hearing. It is further considered that when the factual position had changed, the earlier order would not be binding, holding that thereby the S.D.M. was right in discontinuing the proceedings under Section 145 of the Code. However, we cannot pick and choose only few lines from the particular judgment because in the same judgment the Hon'ble Supreme Court has also observed that atleast in the case of Jhummamal v. State of M.P., reported in 1988 (4) SCC 452 even the Hon'ble Supreme Court has held that merely because the Civil Suit is pending, it does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In the case of Jhummamal(supra) the fact was such that proceedings under Section 145 of the Code had resulted into conclusive order and thereafter the party who Page 29 of 65 HC-NIC Page 29 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT lost in such proceeding had filed several proceedings praying that final order passed in Section 145 proceedings be quashed. Whereas in the case on hand before the Hon'ble Supreme Court, the Civil Suit had been filed first and order of status-quo had already been passed by the competent Civil Court and thereafter proceedings under Section 145 were commenced wherein no final order had been passed and therefore Hon'ble Supreme Court was of the opinion that ratio laid down in the case of Ram Sumer Puri Mahant v. State of U.P., reported in 1985 (1) SCC 427 is fully applicable. However the most important observation is in para 14, after all such discussion which reads as under:
"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 property concerned can be applied for and granted by the Civil Court that proceedings under Section 145 should not be allowed to be continued." In this case the Civil Court is competent to decide the question of title as well as possession between the parties and Page 30 of 65 HC-NIC Page 30 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT the orders of the Civil Court would be binding on the Magistrate. Therefore, the most material and important observation by the Hon'ble Supreme Court is granting of protection by Civil Court for discontinuing the proceedings under Section 145 otherwise it makes it clear that in every case where Civil Suit is filed, it cannot be said that proceedings under Section 145 of the Code would never lie.
(ii) Ram Sumer Puri Mahant v. State of U.P., reported in 1985 (1) SCC 427, wherein Hon'ble Supreme Court has while dealing with the provisions of Section 145 of the Code simply confirmed that when a civil litigation is pending with respect to the property, wherein the question of possessions is involved and has been adjudicated, there is no justification to initiate a parallel criminal proceeding under Section 145 of the Code, because the decree of the Civil Court is binding on the Criminal Court. However, the reason assigned for such decision is to the effect that multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation and therefore Hon'ble Supreme Court has observed that they are Page 31 of 65 HC-NIC Page 31 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT satisfied with the proposition that parallel proceedings should not be continued and the order of the learned Magistrate should be quashed. Therefore, what is considered by the Hon'ble Supreme Court is not the outcome of any statutory provision but on its satisfaction that parallel proceedings cannot be allowed to waste the time of different authorities. However, if there is an issue regarding safeguarding the possession, with due respect, as observed in the case of Amresh Tiwari (Supra) by a larger bench and in the case of Ram Sumer Puri Mahant (supra), when larger bench has clarified that it is not stating that in every case where a civil suit is pending, Section 145 proceedings would never lie and thereafter the larger bench has decided the issue based upon the factual details emerging before it, the judicial dictum of both these judgments is clear that there is no absolute bar to continue the proceedings simultaneously but in given facts and circumstances, if Civil Court is seized with the matter, generally Criminal Court including Court of Executive Magistrate may not be required to proceed further since judgment of the Civil Court is binding to the Criminal Court. However,the proposition that judgment of the Criminal Court is not binding Page 32 of 65 HC-NIC Page 32 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT on the Civil Court is too vague, though it can be said that findings of fact in certain jurisdiction may not be treated as a conclusive determination of issue in other jurisdiction, more particularly when it is different in nature i.e. either Civil or Criminal.
(iii) Bhanumatiben Suryakant Doshi v.
Vanrajsinh Hirabhai Chavda and Ors. Reported in 2001(2)GLH 211, wherein Single Judge of this High Court relying upon the decision of Amresh (supra) confirmed the quashing of proceedings before the Magistrate by the Sessions Court, but the fact before the Single Judge was to the effect that pending civil litigation proceedings under Section 145 of the Code was initiated at a later stage. Therefore, this judgment would not confirm that no proceeding under Section 145 can be initiated in all cases because it is the decision of the larger bench of Hon'ble Supreme Court in the case of Amresh(supra).
(iv)Kanaiyanand @ Kanaiyalal Rambasant Pandey v. Bindadevi Hiranand Pandey & Ors., reported in 2015 (3) GLH 560, wherein also the Single Judge of this High court has though dealt with Section 145 of the Code, the issue before the Page 33 of 65 HC-NIC Page 33 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT Court was altogether different; where it has been held that jurisdiction conferred upon an Executive Magistrate under Section 145 of the Code is an exceptional one and the provisions of the Section should be strictly followed while taking action under it, when Magistrate passing the impugned order has not recorded any findings therein, when the case was one of emergency. Therefore, the over all reading of the judgment goes to show that the issue before the Court was not regarding pendency of Civil litigation and initiation of proceedings under Section 145 of the Code, but it was with regard to the manner in which jurisdiction under Section 145 of the Code is to be exercised by the Executive Magistrate.
24. Therefore none of the above judgments would help the respondents to get rid of the order of quashing and setting aside the impugned order.
25. However, the learned Senior Counsel Mr. Marshall has pragmatically submitted that, the factual position of the present case is similar to the facts of the reported case of Amresh (supra) stating that since a civil litigation is pending wherein there is interim relief in favor of the petitioner Page 34 of 65 HC-NIC Page 34 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT herein and therefore proceedings under Section 145 of the Code should not be allowed to continue.
26. Whereas, factual details reflects that, practically petitioner has initiated both the proceedings on the same day i.e. on 25th May, 2001 and as disclosed herein above when there is a reason to restore the possession which may not be possible in civil proceedings without full fledged hearing, as observed by the full bench of the Hon'ble Supreme Court in case of Amresh (supra), there is no bar or ban to initiate both the proceedings simultaneously. The decisions of the Hon'ble Supreme Court reflect that though there is no such bar or ban imposed by the statute; there is restriction only to the effect that if there is any order in the pending civil proceeding then criminal proceeding may not be initiated. It is also evident that on the day when order under Section 145 of the Code is passed i.e. on 3rd September, 2001 there was no final order of any Civil Court though there was an order of status quo in Civil Suit No. 199 of 2001 which is confirmed only on 7th May, 2002 i.e. after eight months of the order by the Executive Magistrate. Thereby in simple words, now it is quite Page 35 of 65 HC-NIC Page 35 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT clear and obvious that on the date of order by the Executive Magistrate, there was no final order of any Civil Court regarding rights of the petitioner either protecting his right or the possession. It cannot be ignored that, in all reported cases practically decision by the Civil Court is against the litigant who has initiated proceedings under Section 145 of the Code and that too either after the decision of the Civil Court or before that and therefore it was held that when Civil Court is seized with the matter, criminal proceedings cannot be initiated and continued. Whereas, in the present case, both the proceedings were initiated on the very same day, considering the exigencies of the issues on hand and thereby if Civil Court has refused or granted relief in favor of the present petitioner then it can be said that thereafter Executive Magistrate should not proceed in the matter. Whereas, the fact is quite clear that when Executive Magistrate has passed an order, there was no final or conclusive order of the Civil Court and therefore, in my opinion proceedings before the Executive Magistrate is not totally barred or banned, more particularly when there is no such restriction imposed by any of the statutes in Page 36 of 65 HC-NIC Page 36 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT any manner whatsoever.
27. As against that, the petitioner has relied upon several citations, but also submitted that in fact, there is suppression of material facts before the Sessions Court in Revision Petition and therefore, respondents have misguided the Sessions Court which has passed the impugned order and on that count also impugned order needs to be quashed and set aside. In addition to such submissions, learned Advocate Mr. Syed has pointed out that, several irregularities are committed by the respondent. It is pointed out that the documents relied upon by the respondent are actually forged documents, in as much as, all such documents, copy of which are produced on record at page 267, 271 and 450 are alleged to be executed in presence of one Mr. M J Thakkar and there is endorsement by him that such document is executed before him, with his rubber stamp which reads thus "Before Me, M J Thakkar, Executive Magistrate, Surat"
whereas the history sheet/service record of such officer is produced on record which goes to show that he has never worked as Executive Magistrate, Surat during the period when such documents are endorsed by him as Executive Magistrate. This is material irregularity, Page 37 of 65 HC-NIC Page 37 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT such service sheet is on page 455 which confirms that between the year 1989 to 1996 such M J Thakkar was never posted as Executive Magistrate of Surat but he was Deputy Mamlatdar (Tenancy) at Olpad, Deputy Mamlatdar (Supply) at Choryasi, and Supply Inspector of Surat Branch at Surat, during such period and he was not Executive Magistrate of Surat at such time when documents are shown to be executed in his presence. It is the case of the petitioner that forged documents are created by the respondent. Therefore, irrespective of cited cases when factually it is clear and certain that respondents have committed blunder and fraud and tried to snatch away the possession of the suit property from the petitioner and therefore if petitioner has initiated the proceedings under Section 145 of the Code and as disclosed herein above when Executive Magistrate has statutory power to restore the possession, it cannot be said that proceedings before him needs to be stopped or dropped and thereby impugned order is proper and correct.
28. In the case between Smt. Badami v. Bhali reported in 2012 SC 2858, Hon'ble Supreme Court has referred the issue of fraud which Page 38 of 65 HC-NIC Page 38 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT is followed in the case of Devendrakumar v. State of Uttarakhand reported in 2013 SC 3325. In Smt. Shrist Dhawan v. M/s Shaw Brothers AIR 1992 SC 1555:(1992 AIR SCW 1649), it has been opined that fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It has been defined as an act of trickery or deceit. The aforesaid principle has been reiterated in Roshan Deen v. Preeti Lal, reported in AIR 2002 SC 33: (2001 AIR SCW 4577), Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education and others reported in (2003)8 SCC 311:(AIR 2003 SC 4268:2003 AIR SCW 4912) and Ram Chandra Singh v. Savitri Devi and others reported in (2003) 8 SCC 319. Therefore, if fraud is committed either with the Court or on record of the proceedings or even with the plaintiff/petitioner then respondent would have to suffer. However, that issue needs to be dealt with by the Trial Court in Civil proceedings. For that purpose the petition may pray for proper reliefs. Such observations are necessary because atleast (1) Agreement to Sale dated 14.03.1990, (2) Possession receipt dated 10.10.1990 and (3) Development agreement dated 25.08.1995 with stamp, seal, emblem and signature of Page 39 of 65 HC-NIC Page 39 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT Mr. M J Thakkar are alleged to have been forged as Mr. M J Thakkar was not employed as Executive Magistrate of Surat. However, such alleged act of fraud requires proper investigation in accordance with law, since above referred documents appears to have been fabricated, forged and misused with a view to create some evidence, there is issue regarding improper use of Government stamps and seals and authenticity of endorsements that whether it is signed by Mr. M J Thakkar or not. If such documents are used in judicial proceedings, then it would be appropriate for the concerned Court to take necessary steps in accordance with law.
29. The petitioner has relied upon the order dated 29.10.2012 below Application at Ex. 5 in Special Civil Suit No. 317 of 2001 which goes to show that otherwise the petitioner has a better right than respondent in holding the suit property since at least at present the orders of the Civil Court are in his favor. However, this Court has not decided the civil rights of the parties qua the property in question.
30. The petitioner has relied upon the decision in the case of Shanti Kumar Panda v.
Page 40 of 65HC-NIC Page 40 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT Shakuntalka Devi reported in 2004 (1) SCC 438 = AIR 2004 SC 115, wherein also Hon'ble Supreme Court while dealing with the provisions of Section 145 of the Code held that competent court can pass interim order in the nature of injunction or arrangement, inconsistent with the order of Magistrate, in suit or proceeding initiated by the party who was unsuccessful before the Executive Magistrate and that at the stage of final adjudication by the competent Court, order of the Executive Magistrate under Section 145 of the Code, has value only as piece of evidence but competent court is not bound by the findings arrived at by the order of the Executive Magistrate in the proceedings under Section 145 of the Code, confirming that the order or decree passed by the competent court supersedes the order of the Executive Magistrate under Section 145. It is further held that order of the Executive Magistrate under Section 145 is confined only to the factum of the possession of the property in dispute and it is temporary in nature and is subject to determination of rights and title by the Competent Court. Suffice to record here that the petitioner before the Hon'ble Supreme Court has challenged the order and action of the Executive Magistrate but, after Page 41 of 65 HC-NIC Page 41 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT detailed discussion and after relying upon the judgment in the case of Jhummamal(supra), the Hon'ble Supreme Court has dismissed the appeal before it whereby the order and action of the Executive Magistrate was not disturbed.
31. The learned Counsel has read out para 23 of the reported judgment which is explaining in detail the effect of the order of the Executive Magistrate under Section 145 of the Code which confirms that there is nothing wrong in present order by the Executive Magistrate and the Civil Court.
32. Motilal Songara v. Prem Prakash Pappu and another reported in 2013(9)SCC 199 wherein the Hon'ble Supreme Court has though dealt with the provisions of Section 190 and Section 173 of the Code, the learned Counsel for the petitioner is relying upon the observations in para 19 and 20 of the judgment wherein it is observed and held that anyone who takes recourse to method of suppression in the Court of law, is, in actuality, playing fraud upon the Court, and the maxim suppressio veri, expressio falsi i.e. suppression of truth is equivalent to the expression of falsehood.
Page 42 of 65HC-NIC Page 42 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT
33. This is with reference to the fact that while filing the revision petition before the Sessions Court, the respondent has not only disclosed improper facts but also failed to disclose the outcome of several litigations which are in favor of the present petitioner and therefore, if at all Sessions Court interferes in the order then it has to simply drop the revision petition confirming that when there is an order of Civil Court safeguarding the possession of the present petitioner, now order by the Executive Magistrate merges with such order and therefore now proceedings by the Executive Magistrate needs to be dropped.
34. However, surprisingly the Sessions Court has by the impugned judgment gone beyond the order of the Civil Court confirming the order of injunction in favor of the petitioner, after the order of the Executive Magistrate, while directing to restore the possession before the order dated 3rd September, 2001. In other words, even if we believe the full set of arguments by the respondents then also it becomes clear that when on the date of revision i.e. 11th September,2001, the only effective order passed by the Executive Magistrate dated 3rd September,2001, whereby Page 43 of 65 HC-NIC Page 43 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT possession of the petitioner has been protected then after confirming all rights of the petitioner in Civil litigation after order dated 7th May 2002 in Suit No. 199 of 2001 practically Criminal Revision No. 166 of 2001 preferred by the respondent no. 3 needs to be dropped and closed because it is to treated as a continuous proceedings by the Executive Magistrate and therefore, it cannot be said that the order of the Magistrate is to be reversed by directing or declaring the order and its implementation as null and void.
35. Therefore it is certain that if Respondent No. 3 is claiming the possession of the suit land at present by virtue of impugned order then he is probably inviting a proceeding under contempt of Court because Civil Court has already protected the possession of the petitioner in Civil litigation and even Hon'ble Supreme Court has protected the possession of the present petitioner.
36. However, the sum and substance of the argument by the respondent is only to the limited extent that when civil litigation is pending, the proceeding under Section 145 of the Code should not be allowed to continue.
Page 44 of 65HC-NIC Page 44 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT But over all facts, circumstances and discussions herein above makes it clear that there is material irregularity and illegality in the impugned judgment dated 3rd April,2006, by the Sessions Court in Criminal Revision Application 166 of 2001 and therefore, there is reason to interfere in such order so as to quash and set aside the same. At the cost of repetition, it is to be recorded that the over all facts and circumstances makes it clear that only order which was required to be passed by the Sessions Court was to drop the further proceeding and thereby even Revision petition would have come to an end, whereas the Sessions Court has traveled beyond its jurisdiction by reversing the order of the Executive Magistrate which results into reversing the order of the Civil Court which is not permissible though revision is heard by the Sessions Judge.
37. It would be appropriate to recollect the decision and observations in following cases also:
(a) Narandas Tolaram v. Bhagsingh Kirpalsingh Khalsa reported in (1968) CrLJ 1136 wherein an order of injunction was passed by City Civil Court, Ahmedabad on 25.08.1966 and Page 45 of 65 HC-NIC Page 45 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT similar order of injunction by the Court of Registrar's Nominee on 25.10.1966, the Executive Magistrate passed an order on 07.01.1967 contrary to and against the order of the Civil Court and therefore when matter reached up to this Court, the Single Judge of this Court has so far as law point in the issue with reference to provisions of Section 145 of the Code is concerned after quoting Sub-Section (4) of Section 145 observed as under:
"A perusal of this material part of sub-section (4) of Section 145 of the Criminal Procedure Code and the third proviso, clearly indicates that the Magistrate has to decide a question as regards to the actual and physical possession of the subject of dispute. The question regarding a right to possession would be immaterial in this proceeding. The proviso in question empowers the Magistrate to pass an order which is of an emergent nature, even before concluding his inquiry, contemplated in that sub-section."
Even thereafter when High Court has dismissed the petition against the order of the Executive Magistrate directing the Sub- Divisional Magistrate to conclude the inquiry in the proceeding, pending before him, as expeditiously as possible. Therefore, holding that the contentions by the respondent that pendency of Civil litigation would preclude Page 46 of 65 HC-NIC Page 46 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT the Executive Magistrate from exercising jurisdiction is not well founded.
(b)In Seth Ramdayal Jat v. Laxmi Prasad, reported in AIR 2009 SC 2463 Hon'ble Supreme Court has, while discussing the provision of S. 145 of the Code, observed as under:
"17. A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court."
(c) In M.S. Sheriff and Anr. v. State of Madras and Ors. reported in [AIR 1954 SC 397], a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence.
The question yet again came up for consideration in P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884], wherein the law was stated, thus:
"13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends Page 47 of 65 HC-NIC Page 47 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT upon the fact and circumstances of each case."
(d) In AIR 2009 SCW 5248 = 2009(12) SCC 785 between M. P. Peter v. State of Kerala, Hon'ble Supreme Court has while discussing the provision of S. 145 of the Code, observed as under:
"13.The proceeding under Section 145 of the Code indisputably remained pending for a long time. It was initiated on or about 9.01.1996 when a complaint was filed by the respondent No. 3. As noticed hereinbefore, the Sub Divisional Magistrate directed the appellant to handover the property to the respondent No. 3. However, the order of the Sub Divisional Magistrate was reversed by the learned Sessions Judge, which in turn was set aside by the High Court by an order dated 25.09.2007.
14. The correctness or otherwise of the said order of the learned Sub Divisional Magistrate attained finality as the Special Leave Petition filed against the order of the High Court dated 25.09.2007 was dismissed by this Court by an order dated 11.02.2008. Indisputably, the suit was filed thereafter.
15. An order passed by an Executive Magistrate in exercise of its jurisdiction under Section 145 of the Code of Criminal Procedure is subject to the ultimate decision of the suit filed in the civil court.Page 48 of 65
HC-NIC Page 48 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT
16. Even a decision of the learned Magistrate on possession of the parties may have some evidentiary value but the same is not binding on a civil court. In a proceeding under Section 145 of the Code of Criminal Procedure, the learned Magistrate would not be entitled to go into a dispute and in particular complicated question of title. Despite an order passed under Section 145 of the Code of Criminal Procedure, the Civil Court may in a suit pass an order of injunction.
xxxxxxx
28. xxxxxxx Our attention has been drawn to a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] wherein it was held:
"10. Possession is nine points in law. One purpose of the enforcement of the law is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. A dispute relating to any land etc. as defined in sub-section (2) of Section 145 having arisen, causing a likelihood of a breach of the peace, Section 145 of the Code authorizes the Executive Magistrate to take cognizance of the dispute and settle the same by holding an enquiry into possession as distinguished from right to possession or title. The Page 49 of 65 HC-NIC Page 49 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive or police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in the proviso to sub- section (4) of Section 145 and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter; so also the Executive Magistrate would refuse to interfere if there is no likelihood of breach of the peace or if the likelihood of breach of peace though existed at a previous point of time, had ceased to exist by the time he was called upon to pronounce the final order so far as he was concerned."
A distinction therein was noticed Page 50 of 65 HC-NIC Page 50 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT between a case where the subject matter of dispute is not attached by the Executive Magistrate and where it is so ordered. It was observed:
"12. What is an eviction "in due course of law" within the meaning of sub-section (6) of Section 145 of the Code? Does it mean a suit or proceedings directing restoration of possession between the parties respectively unsuccessful and successful in proceedings under Section 145 or any order of a competent court which though not expressly directing eviction of the successful party, has the effect of upholding the possession or entitlement to possession of the unsuccessful party as against the said successful party. In our opinion, which we would buttress by reasons stated shortly hereinafter, ordinarily a party unsuccessful in proceedings under Section 145 ought to sue for recovery of possession seeking a decree or order for restoration of possession. However, a party though unsuccessful in proceedings under Section 145 may still be able to successfully establish before the competent court that it was actually in possession of the property and is entitled to retain the same by making out a strong case demonstrating the finding of the Magistrate to be apparently incorrect."
This Court further observed :
"15. It is well settled that a Page 51 of 65 HC-NIC Page 51 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) A decision given under Section 145 of the Code has relevance and is admissible in evidence to show : (i) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties; (iii) that such dispute led to the passing of a preliminary order under Section 145(1) or an attachment under Section 146(1), on the given date; and (iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession though, as between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the court. The competent court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession. Sections 145 and 146 only provide for the order of the Executive Magistrate made under any of the two provisions being superseded by and giving way to the order or decree of a competent Page 52 of 65 HC-NIC Page 52 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT court. The effect of the Magistrate's order is that burden is thrown on the unsuccessful party to prove its possession or entitlement to possession before the competent Court.
29.Correctness of some of the observations made therein although may be open to question, we need not enter into the said controversy at present.
30.We may, however, notice that this Court in Shanti Kumar Panda (supra) held:
"(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.
The court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule Page 53 of 65 HC-NIC Page 53 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT of caution or restraint, on exercise of discretion by court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of court. The court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court - final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145."
31. xxxxxxxx
32. Apart from the fact that the civil court will have a primacy over the decision of a criminal court even for Page 54 of 65 HC-NIC Page 54 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT the purpose of grant of injunction, it is a case where an exceptional case has been made out. As admittedly the appellant has been residing in the suit premises and as furthermore it would not be practicable to dispossess the appellant upon demolishing the structure, both balance of convenience as also irreparable injury lie in favor of the plaintiff-appellant.
33. We, therefore, direct that the parties shall continue to maintain status quo till the decision of the civil court subject to the following conditions:
(i) Appellant shall not transfer, alienate or create any third party interest in the property.
(ii) The hearing of the suit shall be expedited and all attempts should be made to dispose of the suit within a period of six months from the date of receipt of a copy of this order.
(iii) The court, save and except for cogent reasons, shall not grant any adjournment.
(iv) This order would be subject to the final decision of the suit.
(v) In the event, the suit is dismissed, Page 55 of 65 HC-NIC Page 55 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT the court would direct payment of such amount as it may be determined by way of compensation to the defendant for being kept out of possession from the suit premises from the date of commencement of the suit till the date of restoration of possession."
(e) In Sh. Vishnu Dutt Sharma v. Srnt.
DayaSapra [Civil Appeal arising out of SLP (C) No. 10997 of 2008, decided on 5.05.2009] and Seth RamdayalJat v. Laxrni Prasad, [2009 (5) SCALE 527] the Hon'ble Supreme Court held that ordinarily the judgment of a criminal court would not be binding on the Civil Court. However, the matter will stand on a different footing in a suit where the correctness of an order passed by an Executive Magistrate under Section 145 of the Code is in question.
(f) In AIR 2015 SUPREME COURT 2739 between Surinder Pal Kaur v. Satpal, Hon'ble Supreme Court has, while discussing the provision of S. 145 of the Code, observed as under:
"11. We have considered the rival submissions of the parties on the above point. It is settled position of law that the observations made in the proceedings drawn under Section 145, Cr.P.C. do not bind the competent Page 56 of 65 HC-NIC Page 56 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT court in a legal proceedings initiated before it. A decision given under Section 145, CrP.C. has relevance in evidence to show one or more of the following facts:
(a) that there was a dispute relating to a particular property;
(b) that the dispute was between the parties;
(c) that such dispute led to the passing of a preliminary order under Section 145(1), Cr. P.C. or an order of attachment issued under Section 146(1), Cr.P.C.; and that the Magistrate found particular party or parties in possession or fictional possession of the disputed property.
(d) that the Magistrate found particular party or parties in possession or fictional possession of the disputed property."
12. In Shanti Kumar Panda v.
Shakuntala Devi1 (2004)1 SCC 438: (AIR 2004 SC 115), this Court has held, in paragraph 15, that the reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court (except for the limited purposes enumerated above). Also, it was further held in said case that the words "competent court" as used in sub-section (1) of Section 146 of the Code do not necessarily mean a civil court only. A competent court is one Page 57 of 65 HC-NIC Page 57 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming the subject-matter of proceedings before the Executive Magistrate.
13. In the light of the principle of law, as above, having gone through the orders passed by the Magistrate under Section 145, Cr.P.C., and the one passed by the revisional authority, arisen out of said proceedings, we find that the same do not at all relate to the relationship of the landlord and tenant between the parties, nor is there any finding or observation to that effect. What reflects from aforesaid orders is that there was dispute between two sections of the people as to the nature of the premises whether the same were part of Gurudwara or a Temple. It is not the case of the respondents that after the proceedings under Section 145, Cr.P.C. were drawn, they deposited rent with the Receiver, or any other office bearer of management committee of the temple.
(g) In 1984 G.L.H. 363 between Menaben W/o. Sohansing V. ShantabenBabarbhai & Others the Single Judge of this High Court has relied upon the ruling in the case of Rajpati v. Bachan and another, AIR 1981 SC 18. According to such judgment, a finding of existence of breach of peace is not necessary at the time when a final order is passed, nor is there any Page 58 of 65 HC-NIC Page 58 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT provision in Code of Criminal Procedure code requiring such a finding in the final order. Once a preliminary order drawn up by the Magistrate, sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceedings unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of S. 145. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub-S. (6) of S. 145. It is also observed therein that even assuming that there was an omission on the part of the Magistrate to mention in the final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate particularly when there is nothing to show that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. So far as the question of a forcible and illegal deprivation of the possession is concerned, a ruling in the case of R. N. Bhutani v. Miss Mani J. Desai &others ,AIR 1968 Supreme Court Page 59 of 65 HC-NIC Page 59 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT 1444, is a clear reply to it. A short resume of facts of the aforesaid ruling would show that the ratio of the judgment is clearly applicable to the present one.
"The word 'dispossessed' in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession."
(h) The Supreme Court referred to Jiba v. Chhandulal, AIR 1926 Bombay 91 wherein the High Court of Bombay held that it would be unfair to allow the other party the advantage of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dis-possessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the Page 60 of 65 HC-NIC Page 60 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT dispossessed party was in actual or deemed possession under the second proviso. In the case of A. N. Shah v. Nageswara Rao, AIR 1947 Madras 133 it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under Section 145 should be dropped. It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him. That does not mean that he is not to have the benefit of the remedy under Section 145. The second proviso to sub-section (4) and sub-section (6) contemplates not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession. It is thus fairly clear that the fact that the dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under Section 145 and give directions permissible under sub- section (6). In view of above position, the Page 61 of 65 HC-NIC Page 61 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT High Court has restored the order of the Executive Magistrate which was upset by the Sessions Court. Which is the position herein also, when this Court has by interim order restored the order of the Executive Magistrate while staying the impugned order of the Sessions Court.
38. The sum and substance of all above facts, circumstances and applicable law may be summarized as follows:
i. The order of the Magistrate u/s 145 of the Code is only one out of several evidence, hence considering the interim orders in Civil litigation, the order by the Executive Magistrate could not be assailed as illegal.
ii. There is concurrent jurisdiction with both the authorities i.e. Civil Court and Executive Magistrate to restore the possession if taken away without following due process of Law, but in absence of pending litigation or order by the Civil Court, it cannot be said that Magistrate has no power to restore the possession, which is assigned to him by statue, only because some judgment says so because of peculiar facts and circumstances in those cases whereby party who failed in civil litigation has taken shelter of the s.145 of the Code; which is not the situation in the present case. Therefore, all judgments which simply says that when Page 62 of 65 HC-NIC Page 62 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT civil litigation is pending, Magistrate has no authority is to be read with the factual details of those cases and cannot be followed in all cases irrespective of the factual matrix in the case on hand.
iii. Respondents herein have fairly considered that irrespective of result of this petition, possession of the petitioner is now safeguarded by civil court, in view of such position, which was in existence on the date of impugned order of the Sessions Court, Sessions Court has erred in disturbing the order and more particularly directing to reverse the possession, which is absolutely against the order passed by the competent Civil Court.
Thereby, even dropping of proceedings u/s 145 of the Code at the time of impugned order would result into same position so far as possession is concerned, and therefore practically proceedings u/s 145 of the Code now come to an end, thereby as per settled legal position Civil Court will decide the issue of both possession and title while arriving at final decision in civil litigation between the parties. For the purpose, civil court has to rely upon evidence before it, i.e. decision of the civil court would be independent of the impugned orders.
39. Thereby, though I am not relying upon the observations and grounds for which the interim order is passed on 1st September, Page 63 of 65 HC-NIC Page 63 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT 2006, for the aforesaid facts and circumstances, I am endorsing and confirming that order. It cannot be ignored that such order has already been confirmed by the Hon'ble Supreme Court also and therefore when law does not say that final order should never be like an interim order though while passing final order, interim order can be changed, modified or quashed, the interim order dated 01.09.2006 is made absolute.
40. In view of the above facts and circumstances, the Revision Petition is allowed and thereby impugned order dated 3rd April, 2006 in Criminal Revision Application No. 166 of 2001 is hereby quashed and set aside and thereby Criminal Revision Application No. 166 of 2001 before the Sessions Court Surat stands dismissed. The interim order dated 01.09.2006 is hereby made absolute and confirmed. The Civil Court shall decide the pending suits at the earliest based upon evidence that may be adduced before it, but without being influenced by the observations in this judgment.
41. Rule is made absolute.
(S.G.SHAH, J.) Page 64 of 65 HC-NIC Page 64 of 65 Created On Tue Dec 20 00:38:29 IST 2016 R/CR.RA/326/2006 CAV JUDGMENT SINDHU NAIR Further order dated 19.12.2016:
Request of Mr. Dattani, learned advocate for the respondent to stay this order is rejected because there is nothing to be stayed by staying the operation of this order, since the interim order has already been confirmed by the Hon'ble Supreme Court.
(S.G.SHAH, J.) SINDHU NAIR Page 65 of 65 HC-NIC Page 65 of 65 Created On Tue Dec 20 00:38:29 IST 2016