Punjab-Haryana High Court
Jagdish Rai And Ors. vs S.C. Jain, Sub Divisional Magistrate ... on 24 April, 1990
Equivalent citations: 1991CRILJ3279
ORDER Jai Singh Sekhon, J.
1. The petitioners have filed this petition Under Section 482, of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') for quashing the order dated September 13, 1989 passed by the Sub Divisional Magistrate, Gohana, Under Sections 145 and 146 of the Code, mainly on the ground that civil Court being already seized of the matter, the resort to the proceedings Under Sections 145 and 146 of the Code was not justifiable.
2. The brief resume' of facts relevant for the disposal of this petition is that the present petitioners Nos. 1 to 5 are the partners of the firm known as Poonam Talkies along with Desh Bandu respondent No. 3. These persons entered into a partnership for running the Poonam Cinema, located at Gohana on the terms and conditions that respondent No. 3 will have a share to the tune of 25% as capital share while the remaining partners i.e. petitioners Nos. 1 to 5 will have 75% shares. On 19-5-1981, respondent No. 3 served a legal notice upon these petitioners for dissolving the said partnership concern with effect from 31-5-1981 and calling upon them to settle the accounts of the firm with respondent No. 3. The petitioners sent their reply dated 5-6-1981 to the said notice. Thereafter, respondent No. 3 filed a civil suit No. 402 of 1981 on 13-8-1981 in the Court of Sub Judge Ist Class, Gohana for rendition of accounts of the said firm.
3. During the pendency of the aforesaid suit, the civil Court appointed Mohan Lal Gupta as an Arbitrator on 11-1-1984 with the consent of both the parties. The Arbitrator then gave an award to the effect that respondent No. 3 was liable to pay Rs. 47222.91 to the present petitioners. Thereafter, respondent No. 3 got the abovesaid suit dismissed in default on 1-5-1984. He did not file any application for restoration of the suit or any appeal against the said order and thus, the order of the civil Court dismissing the suit in default has become final. The present respondent No. 3 again filed another suit for permanent injunction on 18-8-1987 before the civil Court for restraining the Manager of the said cinema from exhibiting any picture till the settlement of the accounts between the parties. The present respondent No. 3 also filed two applications in the abovesaid suit, for appointment of a receiver and for ad interim temporary injunction from restraining the present petitioners from displaying pictures in the said talkies. These applications are still pending before the Civil Court.
4. During the pendency of the above referred proceedings, the police of police station Gohana submitted a report for instituting proceedings Under Sections 145 of the Code at the instance of Desh Bandu respondent No. 3 to the effect that there is a dispute between the first party and the second party over the management of the cinema and that the second party viz. the present petitioners had threatened to annihilate Desh Bandu respondent No. 3. The Executive Magistrate issued notice to the second party which filed a reply to the effect that as the civil Court is already seized of the matter, the proceedings Under Section 145 of the Code are not maintainable. The Executive Magistrate vide impugned order annexure P-6 ordered attachment of the property in dispute Under Section 146(1) of the Code and appointed in charge of police station, Gohana, as its receiver by holding that there was imminent apprehension of breach of peace between the parties and that aforesaid Desh Bandu respondent No. 3 being a partner of the firm, shall be deemed to be in possession of the same to the extent of his share. Being aggrieved against the said order, the second party has filed this petition for quashment of the proceedings Under Sections 145 and 146 of the Code.
5. During the pendency of these proceedings S. D. Bajaj, J. had stayed the operation of the impugned order annexure P-6 vide order dated 20-9-1989. Desh Bandu the first party has also filed criminal miscellaneous No. 8132 of 1989 for vacating this order. Both the present petition as well as criminal miscellaneous No. 8132 shall be disposed of by this order.
6. I have heard the learned counsel for the parties besides perusing the record.
7. No doubt ordinarily a partner is presumed to be in possession of the property of a firm on behalf of co-partners but in the present case, the perusal of notice dated 19-5-1981 annexure P-1, given by Desh Bandhu respondent No. 3, to the present petitioners, reveals that he had decided to dissolve the partnership of the firm with effect from 31-5-1981 and that the partnership shall stand dissolved on that date. He has further called upon the other partners to render up to date accounts of the firm. Admittedly it was a partnership at will. In reply to this notice the petitioners had maintained that up to date accounts of the partnership concern up to 31-5-1981 are available and that Desh Bandu Gupta can examine these accounts at any time. It is further maintained that in case there is any dispute regarding the rendition of accounts between the partners, the matter can be referred to the Arbitrator in pursuance of the arbitration clause. Thus, it appears that respondent No. 3 had apparently disassociated himself from the partnership concern. The matter does not rest here as the perusal of the copy of the plaint Annexure P-3 in civil suit No. 402 of 1981 filed by Desh Bandu Gupta against the present petitioners clearly shows that the business of exhibiting pictures in the Poonam Cinema, Gohana was carried on by the defendants i.e. the present petitioners and that they were over-all in charge of this cinema and used to manage the same besides keeping the accounts. It is further averred in para 6 of the plaint that the plaintiff gave a legal notice dated 19-5-1981 to all the defendants indicating his intention to dissolve the partnership w.e.f. 31-5-1981 and that the defendants had failed to render the accounts. Admittedly, during the pendency of this suit, the civil court on the consent of both the parties had appointed Mr. M.L. Gupta as an Arbitrator, who gave an award against the present respondent No. 3. Thereafter the present respondent No. 3 got his suit dismissed in default. There is no dispute between the parties that the afore-referred order dismissing the suit in default on 1-5-1984 of the civil court has become final. The contention of the learned counsel for respondent No. 3 that this suit was got dismissed as Desh Bandu was restrained from appearing in the civil Court by the present petitioners is not acceptable because in that case he could have resorted to filing an application for restoration of the suit or gone in appeal against the said order. On the other hand, he continued sleeping over the matter for more than three years till he filed a second suit for permanent injunction on 18-8-1987 as is apparent from the copy of the plaint annexure P5. Admittedly, this suit is pending between the parties and the applications filed by Desh Bandu present respondent No. 3 for appointment of a receiver and for restraining the defendants from exhibiting pictures in the Poonam Cinema, are still pending before the civil Court. Thus under these circumstances, there is no force in the contention of the learned counsel for respondent No. 3 or the State that respondent No. 3 shall be deemed to be in joint possession of the property in dispute along with the present petitioner being copartner of the firm.
8. Even if for the sake of argument it is taken that Desh Bandu respondent No. 3 being a copartner of the property in dispute is in joint possession of the property along with the present petitioners, it would be of no consequence in proceedings Under Sections 145 and 146 of the Code as proceedings Under Section 145 can only be instituted before an Executive Magistrate where the dispute concerning possession of land or water is likely to cause breach of the peace. In the case in hand, the present petitioners are in possession and managing the exhibition of films in Poonam Cinema as already discussed. Thus the petitioners being in actual possession and control of the running of the cinema are entitled to maintain the same. The perusal of Sub-section (4) of Section 145 of the Code further shows that the Executive Magistrate had to decide which party was in possession of property on the date of order passed by him under Sub-section (1). The proviso appended to this sub-section further enables the Magistrate to deliver the possession of the property to a party who was dispossessed within two months of the order under Sub-section (1). Thus, there is absolutely no doubt that for the purposes of Section 145 of the Code the actual possession of a party is the determining factor. Desh Bandu respondent No. 3 had instituted these proceedings Under Section 145 of the Code contending that he apprehends danger to his life from the petitioners and they are not allowing him to run the cinema. Thus the fault lies on the part of Desh Bandu in not settling the dispute or getting a stay order from the civil Court where the suit for permanent injunction filed by him regarding the same property was admittedly pending prior to the institution of these proceedngs and is still pending. The law is well settled on the point that in any dispute regarding possession of immovable property, the judgment of the Civil Court is binding upon the criminal Court. The ratio of decision of the Supreme Court in Ram Sumer Puri Mahant v. State of U.P., AIR 1985 SC 472 : (1985 Cri LJ 752) can be safely referred in this regard. In that case, the apex Court had discarded the parallel criminal proceedings Under Section 145 of the Code by holding that as the civil court is seized of the dispute regarding possession of the property, the parties in possession should approach the civil Court for securing interim orders such as injunction or appointment of Receiver. Simply because in the above referred case before the Supreme Court the civil Court had earlier given a decree is of no consequence as the ratio of decision of that case is to discourage the multiplicity of litigation and resort to criminal proceedings Under Section 145 of the Code when the dispute is regarding possession of the property is already sub judice before the civil Court.
9. There is considerable force in the contention of Shri Ram Autar Singh, learned Additional Advocate General for the State of Haryana that proceedings Under Section 145 of the Code having been instituted at the instance of Shri Om Parkash Chautala, then President of the Haryana Janta Dal are frivolous as the same are vague and there is no indication available from the file in support thereof.
10. For the foregoing reasons the impugned order Annexure P6 and the other proceedings Under Sections 145 and 146 of the Code are ordered to be quashed by accepting this petition Under Section 482 of the Code. It is, however, directed that the civil court where the aforesaid suit for permanent injunction is pending shall dispose of the applications for appointment of the receiver as well as under Order 39, Rule 1, CPC filed by the present respondent No. 3, expeditiously. The in charge of the police station Gohana, if he had taken possession of the property, shall deliver the same to the present petitioners besides releasing the income from running the said cinema to the petitioners.