Orissa High Court
Bhama Meher vs Kausalya Meher And Ors. on 7 July, 1986
Equivalent citations: 1986(II)OLR203
JUDGMENT K.P. Mohapatra, J.
1. In this revision the petitioner has challenged the order of the learned Additional Sessions Judge, Sambalpur, refusing to drop the proceeding Under Section 145 of the Code of Criminal Procedure ('Code' for short).
2. A proceeding Under Section 145 of the Code in respect of the disputed land with an area of 0 95 acres out of plot No. 35 of M. S. holding No 58 of mouja Badturang was initiated at the instance of the first party Nakul Meher who was the predecessor-in-interest of opposite parties 1 to 1(c). According to the case set up by Naku' Meher, the disputed land exclusively belonged to his mother Marehi Meherani who on 6-1-1965 executed a deed of gift in his favour and put him in possession thereof After the death of Marehi Meherani, her daughters, except the petitioner, acknowledged the gift in favour of Nakul Meher.
In view of his title and continuous possession the disputed land was recorded in the record-of-rights and was mutated in his name. But in the year 1979 in the consolidation proceeding the disputed land was recorded in the name of the petitioner. Nakul Meher challenged the consolidation record and finally the matter is now pending before the Board of Revenue in Consolidation Revision Code No 8 of 1983. It was stated that all through Nakul Meher was in possession of the disputed land to the total exclusion of the petitioner and others.
3. The case of the petitioner, who was a second party member in the proceeding was that after the death of Marehi Meherani in the year 1970 she inherited her property along with Nakul Meher and other heirs according to the provisions of the Hindu Succession Act. She instituted Title Suit No. 60 of 1976 for partition of the jointly inherited property in the Court of the Subordinate Judge, Sambalpur. ln view of the consolidation operation, the suit abated and the consolidation officer declared that she was entitled to 1/4th share in M. S. holding No. 58 corresponding to L. R. holding No. 36. Nakul Meher went up in appeal and revision against the order of the consolidation officer, but without success. After finalisation of the consolidation operation and preparation of Chaka, the consolidation officer gave delivery of possession of the disputed land in her favour. Thereafter she has been in peaceful possession of the disputed land on the strength of her own title to the exclusion of Nakul Meher and others.
4. The learned Executive Magistrate, Sambalpur, passed a preliminary order Under Section 145 and directed the parties to file their written statement. Simultaneously, he took recourse to Section 146(1) and attached the subject of the dispute.
5. During the continuance of the proceeding the petitioner filed a petition to withdraw the order of attachment on the ground that after delivery of possession of the disputed land she has been in possession thereof and by the order of attachment she has been deprived of her right to raise crops thereon. While disposing of the petition the learned Executive Magistrate observed as follows :
"It is admitted that second party member Bhama Meher has got record-of-rights from the Consolidation Officer. Chaka No. 41, Plot No. 109, area Ac. 0 97 is corresponding to Khunti No. 58, M. S. Plot No. 35, Ac. 0. 95 as it has not been objected by the first party. Also from the certified copy of orders in Misc. Case No. 11 of 1982-83 passed by the A.C.O., Chenupali, it is noticed that possession of Chaka No, 41 has been given to Bhama Meher on 7. 6. 82 by the Consolidation Arnin in presence of the A.C.O., Chenupali."
Despite the above observation he refused to interfere and rejected the petition. The learned Additional Sessions Judge, Sambalpur, was approached in revision to drop the proceeding, but he refused to interfere on the grounds that the order of the learned Executive Magistrate was interlocutory in character and he had no jurisdiction to drop the proceeding. Thereafter this Court has been approached to exercise its inherent powers Under Section 482 to quash the proceeding Under Section 145 of the Code in order to prevent abuse of the process of the Court.
6. Mr. Patra, learned counsel for the opposite parties raised preliminary objections to the effect that the impugned order of the learned Executive Magistrate being purely interlocutory in character, the learned Additional Sessions Judge was justified in not interfering with such an order according to the provisions of Section 397(2) of the Code Since the learned Additional Sessions Judge refused to interfere, a second revision by the petitioner in this Court is also barred by the provisions of Section 397(3). He further urged that a proceeding initiated Under Section 145 should ordinarily be enquired into so as to reach a logical conclusion as envisaged in Sub-section (4) thereof. It is, therefore, premature to interfere with the impugned orders.
7. The preliminary objections raised are academically sound legal propositions. The impugned order of the learned Executive Magistrate which did not finally decide the rights of the parties was not purely interlocutory in character It was more than a purely interlocutory order and less than a final disposal. Against such an order ordinarily a revision did not lie. It is equally correct to say that the petitioner having lost before the learned Additional Sessions Judge 'could not prefer a second revision in this Court. Therefore, ex facie it cannot be denied that Section 397 (2) and (3) stand as bar to the maintainability of the present revision: It is also true to say that a proceeding initiated under Sub-section (1) of Section 145 should normally reach a logical end after due enquiry as envisaged in Sub-section (4) thereof.
The powers of the High Court Under Section 482 are wide enough to embrace all situations and eventualities in a proceeding pending in a subordinate criminal Court which calls for interference in order to prevent abase of the process of the Court or otherwise to secure the ends of justice. In AIR 1978 S. C. 47, Madhu Limaye v. State of Maharashtra, the following guide lines were prescribed for exercise of inherent powers .
"(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
With regard to the bar provided in Section 397(2) it was held that it operates only in exercise of the revisional power of the High Court, meaning there by that the High Court will have no power of revision in relation to any interlocutory order. The inherent power will come into play when there is no other provision in the Code for the redress of the grievance of the aggrieved party. In a case in which the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court though such cases would be few and far between. Therefore, the bar Under Section 397(2) will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. In AIR 1980 S. C. 258, Raj Kapoor and Ors. v. State (Delhi Administration) and others, it was held by Krishna Iyer, J. that:
"The first question is as to whether the inherent power of the High Court Under Section 482 stands repelled when the revisional power Under Section 397 overlaps, The opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law, when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code."
In 1977 Crl L. J. 1392 Damodar Das Babaji v. Harihara Nahak and others, an identical view was expressed and it was held that the High Court can interfere with an interlocutory order under its inherent Jurisdication to secure ends of justice even though ' a revision is barred Under Section 397(2). In 56 (1983) CLT 123 Nilu alias Prasanta Kumar Patjoshi and Ors. v. State, relying upon Madhu Limaye's case (supra) it was held by a Division Bench of this Court that if a situation arises calling for exercise of inherent jurisdiction of the High Court Under Section 482 to prevent an abuse of the process of the Court, Section 397(2) cannot be a bar. In 1986(1) Crimes 208 Binod Sitha v. Suna Dei, it was held by the Court that exercise of inherent jurisdicffon as provided in Section 482 is not controlled by the provisions made in Section 397(2) or 397(3) of the Code. Applying the principle in Madhu Limaye's case (supra) it was held in 1985 Crl. L. J. 1806, K. M. Nagamallappa v. B. J. Lalitha and another, that a petition Under Section 482 can be maintained in the High Court even though a revision is barred Under Section 397(3) in order to prevent the abuse of the process of the Court and/or to secure the ends of justice. Further, there is a clear provision in Sub-section (5). of Section 145 by virtue of which any party or any other interested person may show that no dispute exists or has existed with regard to the subject-matter of the proceeding and there is no apprehension of breach of peace. If the Magistrate is satisfied on this score, he can legally cancel the order passed under Sub-section (1) of Section 145.
From the aforesaid discussion it is clear that when the High Court is satisfied on materials that if the impugned orders are allowed to stand there shall be abuse of the process of the Court, it can interfere in exercise of its inherent powers Under Section 482 without being controlled by the provisions of Sub-sections (2) and (3) of Section 397 of the Code. It is, therefore, necessary to examine if in this case such interference is warranted in order to prevent the abuse of the process of the Court and for securing the ends of justice.
8. To recapitulate, the learned Executive Magistrate on consideration of documents produced before him recorded that the disputed land was recorded in the name of the petitioner by the consolidation officer and delivery of possession was given in her favour on 7-6-1982 The proceeding Under Section 145, was initiated shortly thereafter on 3. 9. 1982. There are a large number of decisions laying down the proposition that the Magistrate in a proceeding Under Section 145 shall give due respect to-the orders passed by a civil Court. Some of the decisions are ILR 1964 Cutt. 182, Banamali Mohapatra v. Bajra Nahak and others, 48(1979) CLT 70, Bhima Nayak and Ors. v. Panjashaw Durgan and others, 1975 Crl. L J; 985, Geevarghese Yohannan and Anr. v. P. J. Abraham Kathanar and others, 1986(1) OLR 196, Sukadev Bhanja v. Mangulu Sahu, and 1986 (I) OLR 586, Radhamohan Panda and 23 others v. Brundaban Naik and 9 others. In AIR 1985 S, C. 472, Ram Sumer Puri Mahant v. State of U. P. and others, while dealing with a matter Under Section 145 of the Code, it was made clear that :
"...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."
I would, particularly, emphasise on the observation that in a proceeding Under Section 145 a decree of the civil Court is binding on the criminal Court and so, not only multiplicity of litigation but a|so wastage of time should be avoided. In 1978 CLR 5, Baishrab Parida & others v. Subal Bhoi and others, the petitioners were declared as tenants under the Orissa Land Reforms Act on 31-5-1977. A proceeding Under Section 145 was initiated against them on 7-10-1977 on a petition filed by the unsuccessful party in the Orissa Land Reforms case. On such facts, it was held by this Court that the orders of the revenue Court should be respected and so the proceeding Under Section 145 of the Code was dropped. Similarly, in 1984 OLR 1039 Kirtan Jena v. Biswanath Swain and another, relying upon the proceeding decision it was held by this Court that the Magistrate in a proceeding Under Section 145 shall respect the recent decisions of the civil Court or the revenue Court whichever is the appropriate forum regarding possession. If such competent Courts uphold the possession of a party, the Magistrate should not make a fresh enquiry into the question of possession. In case there is apprehension-of breach of peace, the parties responsible therefor can be bound down obviously in a proceeding Under Section 107 of the Code.
9. In this case, the consolidation authorities declared the right of the petitioner in respect of the disputed land and delivered possession of the same to her. The consolidation authorities exercised the functions of the civil Court while deciding the dispute between the parties relating to partition of the property jointly inherited by them after the death of Marehi Meherani, The decision of the consolidation authorities was recent and there was no scope to believe that soon after delivery of possession in favour of the petitioner, she was dispossessed and Nakul Meher came into immediate possession after having lost his case before the consolidation authorities. In the Full Bench decision of this Court reported in 50( I980) CLT 337, Srinibas Jena (and after him ) Madhabananda Jena and Ors. v. Janardan Jena and others, it was held that once the parties work out their rights before the consolidation authorities and exhaust their remedies under the Act, they cannot re-agitate the same questions over again in the Civil Court. Those questions stand finally concluded by the decision of the consolidation authorities. The rule of res judicata is founded on the principle that a matter which has been litigated between the parties and finally adjudicated should not be allowed to be re-agitated between the same parties. Therefore, the decision of the consolidation authorities on the questions of right, title and interest which are matters within their jurisdiction would operate as res judicata and that being so, the civil Court will have no jurisdiction to hear and decide the suit afresh This being the position of law, the decision of the consolidation authorities is as good as a decree passed by the civil Court which, according to the settled-principle of law, should be given due weight and respected by a Magistrate in a proceeding Under Section 145 of the Code. To repeat, in this case, the petitioner's right and title in respect of the disputed land was decided by the competent consolidation authorities and delivery of possession thereof was given to her on 7. 6. 1982 The learned Executive Magistrate should have respected the decision of the consolidation authorities which was as effective as a civil Court decree and should have refrained from initiating a proceeding Under Section 145 on 3 9. 1982. There-by, he not only gave scant respect to the decision of the consolidation authorities on a question within their competence to decide, but also gave scope for unnecessary litigation between the parties and for wastage of public time. I, therefore, consider that this is a fit case in which this Court, in exercise of its powers Under Section 432, should interfere to prevent abuse of the process of the Court and to secure ends of justice by dropping the proceeding Under Section 145 of the Code between the parties now pending in the Court of the learned Executive Magistrate, Sambalpur.
10. In the result, the petition is allowed and the impugned orders passed by the learned Courts below are set aside. The proceeding Under Section 145 of the Code now pending before the learned Executive Magistrate, Sambalpur, is quashed.