Allahabad High Court
Jai Narain And Anr. vs State Of U.P. And Ors. on 17 March, 1993
Equivalent citations: 1993CRILJ3687
ORDER Sudhir Narain, J.
1. This writ petition is directed against order dated 25-6-1992, passed by Sub-Divisional Magistrate, Meja, Allahabad, releasing the property in question in favour of respondents 4 and 5, in proceedings under Section 145, Cr.P.C. and order dated 17th July, 1992, passed by Sessions Judge, Allahabad, affirmed the said order.
2. The facts, as disclosed in the writ petition, are that one Birja was bhumidhar of the land in question. It is alleged that he executed a registered agreement to sell on 16th July, 1984 in favour of Jai Narain, petitioner No. 1. On 27th August, 1984 he executed a registered sale deed in favour of one Ram Chandra. Ram Chandra executed sale deed on 17th February, 1986 in favour of Raj Kumar and Vinod Kumar, respondents 4 and 5. They filed mutation application and the mutation order was passed in their favour. The petitioner No. 1 filed suit No. 403 of 1984 in the Civil Court for specific performance of the agreement and for possession. While the suit was pending, the respondents filed an application under Section 145 Cr. P. C. for taking proceedings under the said provision regarding land in question. They also moved an application for attachment under Section 146, Cr. P. C. On 28th December, 1989 the police submitted a report that there was apprehension of breach of peace between the parties regarding the land in question and after being satisfied from the police report and other evidence on record, the Magistrate passed a preliminary order under Section 145, Cr. P. C. and further passed attachment order and the property after attachment was given to Supurdgars. The suit which was filed by the petitioner, Jai Narain was abated on 28th March, 1992. The Sub-Divisional Magistrate by order dated 25th June, 1992 had held that respondents 4 and 5 were in possession on the date of preliminary order and within two months prior to the said date and released the property in their favour. The petitioners, aggrieved against the said order, filed revision which was dismissed by Sessions Judge, respondent No. 2, by order dated 17th July, 1992.
3. I have heard learned counsel for the parties. Learned counsel for the petitioners urged that the Sub-Divisonal Magistrate had no jurisdiction to initiate the proceedings under Section 145, Cr. P. C. when the suit filed by petitioner No. 1 was pending in the Civil Court. He had filed the suit in the year 1985 for specific performance of the agreement and if there was any dispute regarding possession, it was only the Civil Court which was competent to pass orders. He placed reliance on Ramsumer Puri v. State of U.P., AIR 1985 SC 472 : (1985 Cri LJ 752). In that case a suit for possession and injunction was filed in the Civil Court and the question of title was gone into and by judgment dated February 28, 1981, the said suit was dismissed. An appeal was filed which was pending for disposal. When the appeal was pending the proceedings under Section 145, Cr. P. C. were initiated. The application was filed under Sectiodn 482, Cr. P. C. in the High Court which was rejected. The Supreme Court, in appeal, held as follows:-
"When a Civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceedings under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. In this case the question regarding possession and title both had already been decided by the Civil Court and it was during the pendency of the appeal that the proceedings were initiated under Section 145, Cr. P. C. In the suit the question of possession itself was involved and the Supreme Court was of the opinion that when the matter regarding possession was itself being examined by the Civil Court and the parties were in a position to approach the Civil Court for interim orders, there was adequate protection of the property during the pendency of the dispute and there was no justification for initiation of the proceedings under Section 145, Cr. P. C. In the present case the petitioner had himself filed suit for specific performance of the agreement and for delivery of possession. In view of the relief claimed in the suit it could not be held that the question of possession was involved in the civil suit.
4. The plaintiff relied upon an agreement which was alleged to have been executed by Birja but the deed itself indicated that the possession will be delivered at the time of execution of, the sale deed. The petitioners were relying upon the said agreement and the Sub-Divisional Magistrate having held that the mere filing of the suit, for specific performance of the agreement and possession will not debar the Magistrate concerned to initiate proceedings under Section 145, Cr. P. C. in case there was apprehension of breach of peace, concerning the land in dispute. In Jhunamal v. State of M.P., AIR 1988 SC 1973 : (1989 Cri LJ 82) the Supreme Court explained the decision of Ramsumer's case (supra) and on the facts it was found that the proceedings under Section 145, Cr. P. C. were rightly initiated and could be continued. In that case the proceedings under Section 145, Cr. P. C. were initiated in the year 1982 and on May 17, 1985 the Magistrate passed the final order releasing the property in question in favour of the appellant of the said case. A suit was filed by the respondent for injunction after the said order was passed. On that date the revision against the order passed under Section 145, Cr. P. C. was pending. The Supreme Court took the view that the "Magistrate had passed the order under Section 145, Cr. P. C. and, such order could not be set at naught because the unsuccessful party has approached the Civil Court. The 'Supreme Court observed as follows :-
"The ratio of the said decision is that a party should not be permitted to litigate before the Criminal Court when a civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under Section 145, Cr. P. C. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the Civil Court."
In the present case Jai Narain, petitioner No. 1, had filed the suit for specific performance of the agreement and for delivery of possession against Ramchandra, predecessor in interest of respondents 4 and 5, but in case there was apprehension of breach of peace he could not take advantage of the fact that the respondents should have approached the Civil Court for obtaining an injunction when admittedly the plaintiff-petitioner had himself claimed relief of possession in the suit on the basis of an agreement which itself provided that the possession will be delivered at the time of execution of the sale deed. Lakh Narain petitioner No. 2, was neither party to the agreement nor he was party in the civil suit filed by Jai Narain, petitioner No. 1.
5. In Ghanshyam Das Gupta v. Sub-Divisional Magistrate (Sadar) Mirzapur, 1991 All WC 517, this Court took the view that when civil suit was already pending and the Court had passed interim injunction against the contesting respondents and they were restrained from interfering with the petitioners' possession over the property in dispute and the respondents having filed objection against the ad interim injunction order, they cannot approach the Magistrate, to initiate the proceedings under Section 145, Cr. P. C. The facts in the present case are, however, totally different. There is no injunction order in favour of the petitioners by the Civil Court. In Ramji Bind v. State of U.P., 1990 All Cr C 224, the Court itself did not decide the controversy as to whether there was any justification to initiate the proceedings under Section 145, Cr. P. C. but remanded the matter for consideration to the Magistrate concerned.
6. The mere fact that the petitioner had filed suit for specific performance of the agreement and for delivery of possession does not deprive the Magistrate to initiate the proceedings under Section 145, Cr. P. C. when the question of possession itself is not involved in the suit. The petitioner had claimed the relief of possession of the land in question in the suit and if any dispute arose as to the possession, the Magistrate was fully entitled to initiate the proceedings under Section 145, Cr. P. C. if there existed apprehension of breach of peace. The Station Officer as well as Naib Tehsildar submitted reports that there was apprehension of breach of peace regarding the land in question. The petitioner No. 2 Lakh Narain, himself filed an application on 27th December, 1988 stating that there was possibility of a dispute. It was further alleged that Birja who was executant of the sale deed was murdered. The Magistrate recorded a finding that there was apprehension of breach of peace and there was emergency so as to attach the property in question to avoid any further dispute regarding possession of the land in question. The petitioner No. 1 had himself filed suit as early as in the year 1985 and he had not obtained any interim injunction possibly because he himself had claimed relief of possession in the suit itself.
7. There is another aspect of the matter. The suit was abated as a whole by the IInd Additional Civil Judge vide order dated 28-3-1992. The Sub-Divisional Magistrate had passed the order in question on 25th June, 1992. At that time civil suit was not pending.
8. Learned counsel for the petitioners urged that the petitioner had filed appeal against the said order of abatement and the said appeal is still pending. The initiation of the proceedings under Section 145, Cr. P. C. itself was without jurisdiction. The order abating the suit after initiating the proceedings is of no consequence.
9. This Court cannot ignore subsequent events arising during the proceedings of the case. It is always open to the petitioners to obtain possession if the suit is ultimately decreed. It is not a fit case for interference under Article 226 of the Constitution of India. The respondents 1 and 2 have recorded concurrent finding that respondents 4 and 5 were in possession on the date of passing of the preliminary order and two months prior to it. The petitioners failed to show that such finding is perverse or erroneous in law.
10. There is no merit in this writ petition and it is accordingly dismissed.
11. There will be, however, no order as to costs.