Madras High Court
S. Je. Ramesh Babhu vs The Executive Magistrate Cum Revenue ... on 29 April, 2004
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. This Criminal Original Petition has been filed by the petitioner to call for the records and quash proceedings in M.C.No:33 of 2003 pending on the file of the first respondent, viz., Executive Magistrate cum Revenue Divisional Officer, Ramanathapuram.
2. The brief facts of the case are as follows:-
The petitioner and his brothers are co-owners of two theatres viz., Jagan and Mini Jagan situated in the same Complex at Ramanathapuram. Both the theatres were originally run by their father and after his demise, the theatres devolved on the petitioner, second respondent and others as a joint family property. C-form licence of the theatres also been issued in the name of individuals, thus evidencing the fact that they are co-owners.
3. According to the petitioner he purchased one erstwhile Thangam Theatre in the month of March, 2003, where his wife, in-laws and himself are partners. After the purchase it has been renamed as RAMESH THEATRE. But his brothers did not like the purchase of the Ramesh Theatre by the petitioner. But the objection did not sustain. Therefore the brothers of the petitioner approached the District Collector and influenced him to ask the petitioner to hand over the keys of the theatres to other co-owners since huge amounts are due to the petitioner from the Salt Factory by his brothers, they permitted him to run the above theatres until his dues are settled. Therefore, it is with their consent, knowledge and understanding the petitioner is running the above theatres. Since the District Collector heavily pressurised and threatened the petitioner to hand over keys of the theatre, he served legal notice to the District Collector and also the Revenue Divisional Officer, Ramanathapuram. Even though the District Collector is the licencing authority for theatres in respect of the District, due to compelling circumstances, the petitioner went to the extent of issuing notice to the District Collector and R.D.O.,. After receipt of notice, the Licensing Authority suspended the C-Form licence in respect of Ramesh Theatre. But, by the order passed by this court in WPMP.NO.27999 of 2003 in W.P.No.22636 of 2003, the impugned order of suspension has been stayed which order has been subsequently made absolute by order dated 4.9.2003.
4. Thereafter the co-owners influenced the first respondent through the District Collector to initiate proceedings under Section 145 Cr.P.C., alleging that on 1.7.2003, the petitioner took forcible possession of the theatres with the help of 30 rowdy elements. Such a complaint was given to the Revenue Divisional Officer 22 days later to the said occurrence. The Police Report does not contain that the petitioner forcibly dispossessed the co owners. On the other hand the report says that the petitioner continues to be in possession of the theatres and there is no whisper about bringing rowdy elements and forcibly dispossessing the 2nd respondent and his brothers. Therefore the entire proceedings of the RDO is void ab initio and illegal.
5. The petitioner filed Crl.O.P.No:28404 of 2003 to set aside the notice dated 6.8.2003 of the first respondent. While setting aside the said notice this court gave liberty to the the R.D.O., to proceed afresh. Thereafter, the Collector suspended the C-Form licence of the two theatres Jagan and Mini Jagan indefinitely. This was challenged by the petitioner in WPMP.No:34365 of 203 in WP.NO.28115 of 2003 and by order dated 15.10.203, this Court has given liberty to the petitioner to run the theatres till the expiry of the filing of the appeal time and further directed the authorities not to implement the order of suspension.
6. In the above background the first respondent has issued another notice dated 11.10.2003 which was served on 13.10.2003 by 9.00 pm., asking the petitioner and the second respondent to appear for an enquiry on 16.10.203 at 5.00 pm., by filing documents in support of their case. The notice is also not in accordance with law and invocation of 145 of Cr.P.C., proceedings does not arise. In the meanwhile the second respondent and other co-owners have filed a Civil Suit in O.S. No. 87 of 2003 as regards the said two theatres (Jagan and Mini Jagan) raising similar grounds as that of Section 145 Cr.P.C., Proceedings seeking compensation and other reliefs against the petitioner. They also filed O.S. No. 69 of 2003 on the file of the Sub Court, Ramanathapuram seeking permanent injunction against the petitioner from running the said Ramesh theatre. But the learned Subordinate Judge, dismissed the interim application filed by the co-owners.
7. The petitioner is in possession of both the theatres. Since the theatres belong to co-owners each co owner is deemed to be in possession of the theatres. The proceedings initiated by the first respondent is illegal and void ab initio. The entire proceedings are against the settled principles of law. The petitioner prays to quash the proceedings initiated in M.C.No:33/2003.
8. The second respondent filed a counter affidavit, wherein he has stated that the second respondent, petitioner, and J. Sukumar are brothers and their father S. Jagannathan died on 1.8.2000. The joint family owns large number of properties. There was a partition among the members of the joint family on 9.7.1998 and on that basis a partition deed was prepared on 2.8.1999 during the life time of their father and all the male members are signatories in that partition list dated 2.8.1999. the site on which the buildings of the two theatres are constructed originally belonged to the joint family. During the year 1982 and again in 1994, the two theatres were constructed and two partnership firms were formed for controlling the cinema exhibition business. As per the partnership deed dated 1.6.1997, the firm Jegan Thiraiarangam consists of S. Jegannathan, the petitioner, second respondent, J. Sukumar, S. Jeyaraj and M. Vijayarani as partners and after the death of S. Jegannahtan the firm was reconstituted with the rest of the partners on 2.8.2000. The C form licence in respect of the theatres were obtained in the names of the partners of the respective firms on 11.5.2001. The second respondent is having 1/3rd undivided share in the site and the buildings and machinery of the cinema theatres owned by the partnership firms. As per the scheme, the theatres have to be managed only by each of the sons of Jegannathan i.e., petitioner, second respondent and J. Sukumar for on year by rotation. The person who is in turn management of the theatres has to pay Rs. 30,000/= per month to his brothers, Rs. 15,000/= per month each to Mr. S. Jeyaraj and Mrs. M. Vijayarani, Rs. 20,000/= per month to Jegannathan during his life time and after his death Rs. 15,000/= per month each to his two wives. There shall not be any transfer or lease to conduct the business to the third party. The person in turn management must bear the maintenance charges of the Theatres, taxes, loan installments etc., In all other respects the business of the theatres will be as per the terms of the partnership deeds. As per the said Scheme, J. Sukumar was in management of the theatres from 1.7.1998 to 30.6.1999 for the first time and from 1.7.2001 to 30.6.20002 for the second time. The second respondent was in management from 1.7.2000 to 30.6.2001 for the first time. The petitioner was in management from 1.7.1999 to 30.6.20000 and 1.7.2002 to 30.6.2003 for the second time. On 1.7.2003 the petitioner has to hand over the management of the theatres to the second respondent for second time. Under the deed of partnership between the partners, they should not carryon any identical or similar or same business or run rival cinema theatre. The relevant clause for such prohibition to carry on such rival business is clause 7 of the respective partnership deeds. In spite of such prohibition, the petitioner purchased an existing closed theatre Thangam Theatre, Ramanathapuram for running a rival cinema theatre in the name and style of Ramesh theatre. The District Collector has also issued C-Form licence in favour of the petitioner in spite of the objection by the other partners of the two theatres Jegan and Mini Jegan. In this respect a suit was filed in O.S.No.69 of 2003 on the file of the Sub Court, Ramanathapuram questioning the rival business between the partners. On 1.7.2003 the petitioner has handed over the management of the two theatres in the morning to the second respondent and he has made necessary arrangements to perform Pooja in the premises of the theatres and also to screen the films. When the second respondent and the petitioner were performing the Pooja the petitioner took possession of the theatres forcibly by engaging rowdies with the help of his brother-in-law Senthil Kumar who is warranted by the Police in a murder case.
9. Since the petitioner took possession of the theatre forcibly, a complaint was lodged and proceedings in MC.No.33 of 2003 under section 145 of the Cr.P.C., is pending before the first respondent namely Executive Magistrate, Ramanathapuram. On receipt of the notice in 145 proceedings, the petitioner has approached this court by fling Crl.O.P.No.28404 of 2003 for quashing the same. After hearing the Public Prosecutor, this Court has set aside only the notice in 145 proceedings and liberty was given to the Executive Magistrate to pass preliminary order as contemplated under Section 145(1) of the Criminal Procedure Code. No notice was ordered in the said Crl.O.P. Before passing the order. The petitioner filed a false affidavit before the Executive Magistrate on 29.82003 by stating that the High Court has quashed the entire 145 proceedings in M.C.No.33 of 2003. The second respondent was not aware of the position of the proceedings in Crl.O.P.No:28404 of 2003 because no notice was ordered to the second respondent. Believing the statement of the petitioner the second respondent filed O.s.no.87 of 2003 on the file of the Sub Court, Ramanathapuram for the reliefs set out in the plaint. After getting a copy of the order Crl.O.P.No.28404 of 2003 the second respondent came to know that this court has set aside only notice in M.C.No.33 of 2003, and not the entire 145 proceedings, the second respondent initiated contempt petition No.777 of 2003 against the petitioner and on 22.9.2003, the this court passed an order of status quo as on 25.8.2003, the date of passing of the order by this court in Crl.O.P.No.28404 of 2003 and this order was subsequently extended till 7.11.2003. The contempt petition was posted to 7.11.2003. After taking forcible possession of the theatres the petitioner on 1.7.2003 the petitioner is running the theatres. He is not making payments to the other partners as per the agreement. He stopped paying installment of Rs. 45,600/= per month in respect of hire purchase contract with the Investment Trust of India Ltd., from 1.7.2003 onwards and the Investment Trust of India Ltd., has also issued notice and it is relevant to note that the belated payment of installment will attract damages at 36% per annum as per the terms of hire purchase agreement. The petitioner is preventing the other partners from entering into the theatres. He is permitting to stay the unlawful elements in the theatre premises under the control of Senthil Kumar. The aforesaid acts are only with an intention to cheat the partners and to grab away the theatres. Because of the aforesaid activities and to maintain law and order problem and protect the partners from the petitioner, the partners have no other alternative except to approach the District Collector for revoking the "C" form licence in respect of the two theatres till the disposal of 145 proceedings. The temporary suspension order was passed by the District Collector on 5.10.2003 only after hearing the partners of the two theatres and after getting a report from the Executive Magistrate cum Revenue Divisional Officer, Ramanathapuram and after considering the relevant records relating to various proceeding. The petitioner has approached this court by filing W.P.28115 of 2003 suppressing all the aforesaid facts. On 11.10.2003, the Revenue Divisional Officer has issued the preliminary order as contemplated in Sec. 145(1) of the Criminal Procedure Code. After getting the said preliminary order the petitioner has filed the present Crl. O.P.,
10. The petitioner is running the two theatres only by a partnership and non co-ownership as stated in the affidavit. The need has arisen for filing the suit O.S.No.87 of 2003 was only after filing of the false affidavit stating that this Court has quashed the entire 145 proceedings. The order in Crl.O.P.No.28404 of 2003 was passed in ex parte at the admission stage and because of that the second respondent was not in a position to be aware of the exact order passed by this court. The paper cutting of one edition of Hindu and the article published in Netrikkan filed in the typed set would show as to how the rowdies under the head of the said Senthil Kumar have secured possession of the theatre complex The report of the Police authorities clearly show that there is law and order problem, which will lead to breach of peace. The petitioner has come forward with a settlement proposal and with that score he took an adjournment of the Contempt Petition to 7.11.2003 and he is now refusing to come forward with the settlement process due to change of circumstances. Merely because filing of the suit on believing the statement of the false affidavit before the first respondent will not be a ground for quashing. In spite of the order in the W.P. And W.A., the petitioner did not open the theatres since he apprehends that there is a law and order problem which will lead to breach of peace. The petitioner has not made out a case for quash under Section 482 of the Criminal Procedure Code. The second respondent prays or dismissal of this petition.
11. The Point for consideration is Whether the 145 Cr.P.C., proceedings on the file of the 1st respondent should be quashed?
12. The two theatres Jagan and Mini Jagan belongs to a joint family property in which the petitioner, second respondent, S. Jeyaran, M. Vijayarani and J. Sukumar are the co owners. C-form licences were issued in the name of the individual co owners. On 23.7.2003, the second respondent, J. Dinesh Babu filed a petition before the first respondent, Revenue Divisional Officer, Ramanathapuram alleging that on 1.7.2003, the petitioner after handing over possession to him brought goondas and forcibly took possession of the theatres from the second respondent. On receipt of such a petition, the first respondent issued notice dated 6.8.2003 under section 145 Cr.P.C., The petitioner filed Crl.O.P.No:28404 of 2003 and this court by order dated 25.8.2003 set aside the notice on the ground that the notice is not in accordance with law. But liberty was given to pass fresh orders under Section 145 Cr.P.C., Subsequent to the above order, the second respondent filed Civil Suit in O.S.No:87 of 2003 in the Sub Court, Ramanathapuram seeking a decree for recovery of possession with consequent damages till possession is delivered to him by the petitioner. The RDO himself was threatening the petitioner to initiate Section 145 proceedings, therefore the petitioner caused a legal notice dated 24.7.2003 to both the District Collector and the first respondent. Only after receipt of legal notice the first respondent has initiated such proceedings under Section 145 Cr.P.C.,
13. To initiate proceedings under Section 145 Cr.P.C., three requirements have to be fulfilled viz., (i) there must be a real breach of peace inviting such proceedings; (ii) there must be material on record to prove the actual breach of peace; and (iii) the Executive Magistrate shall form a subjective satisfaction to initiate such proceedings. In the impugned notice dated 11.01.2003, the first respondent has stated that he relied upon the Police report, based on which he satisfied to issue notice under Sec. 145 Cr.P.C., According to the petitioner the Police report does not speak a single word about the forcible dispossession by the petitioner and therefore according to him there is basically no basis for issuing the impugned notice. The Police report is dated 25.7.2003, which was three days later than the complaint filed on 22.7.2003. If really the petitioner forcibly dispossessed the second respondent by bringing goondas and rowdies, the Police should have mentioned this in the report. But the absence of such allegation in the report will prove the allegation that the petitioner forcibly dispossessed the petitioner is false.
14. The contention of the second respondent is that the theatres belong to a partnership firm and the three partners were managing the theatres on turn basis and when the petitioner's turn came to an end on 30.6.2003, he handed over the possession on 1.7.2003 morning, but took over forcible possession on the same evening through his brother-in-law Senthil Kumar, who engaged rowdy elements for that purpose and it is the admitted case of the second respondent also that the petitioner is in continuous possession of the theatres after he took forcible possession from him. If really he handed over possession of the theatres to him on the morning of 1.7.2003 and took forcible possession from him on the evening of the same day, by engaging rowdy elements, the second respondent would not have kept quiet without even lodging a complaint immediately. But, on the other hand, it is the admitted fact that a complaint was lodged by the second respondent only on 22.7.2003 based on which a notice dated 6.8.2003, under Section 145 Cr.P.C., was issued. When such a notice was issued by the Revenue Divisional Officer, the petitioner has filed Crl.O.P.No.28404 of 2003 against the first respondent and the said notice was set aside by this court. Thereafter on 24.7.2003, the petitioner has issued a lawyer's notice to the District Collector and the first respondent wherein he has alleged that the other two brothers of the petitioner have filed civil suit in the Sub Court, Ramanathapuram and that the R.D.O., and Collector are personally calling the petitioner and asking him to hand over keys of the theatres to other partners who are having enormous influence over political bigwigs, that it is purely a partnership dispute and authorities were requested to restrain themselves from using their office in that behalf and that the partners will redress their grievance through proper court of law.
15. The petitioner also sent a notice to the second respondent and other brother, viz., Sukumar. In the meanwhile O.S.No.87 of 2003 was filed by the brother of the petitioner seeking a decree for recovery of possession with damages till possession is delivered to him by the petitioner and the suit is still pending.
16. In the preliminary order of the Revenue Divisional Officer, there is no mention that the petitioner forcibly took possession of the theatres on 1.7.2003 evening. The Police report dated 25.7.2003 is as follows:-
"Jagan and Mini Jagan theatres at Ramanathapuram belong to Dinesh Babu, Sukumar, Jeyaraj, Vijayarani and Ramesh Babu and the management of the theares is on turn basis by an agreement between Dinesh Babu, Ramesh Babu and Sukumar. On 1.7.2003, Ramesh Babu who was in possession of the theatres after his turn is over, should have handed over the heatres to Dinesh Babu. But due to some reasons he has not handed over the possession to Dinesh Babu and therefore Dinesh Babu, the second respondent has attempted to take over possession of the theatres, because of which dispute is likely to arise between the partners which may create law and order situation."
17. From the statement of the Inspector of Police dated 25.7.2003, it is clear that though turn was over on 30.6.2003, the petitioner has not handed over possession of the theatres for the reasons best known to him. But the second respondent attempted to take possession of the theatres which may result in law and order situation. The report of the Inspector of Police dated 27.3.2003 and the preliminary order of the first respondent, based on the report of the Inspector of Police, clearly would show that the petitioner continued in possession after 1.7.2003 and the allegation that the petitioner handed over possession on the morning of 1.7.2003 to the second respondent and took forcible possession of the theatres from the second respondent on the evening of 1.7.2003 is not true.
18. In spite of several opportunities to both the parties to make compromise since they are brothers, the compromise could not be effected even though draft joint memo of compromise was made ready by both sides and at last, this court has no other option, but to pass orders on merits.
19. As far as this case is concerned, the admission of the second respondent is that the petitioner is continuing in possession even though his turn of management is over. The contention of the petitioner is that he is not paid proper share in the family business and salt manufacturing business and other family business and therefore he has got genuine reason to hold over possession of the theatres. Admittedly, the 2nd respondent and other partners have filed a suit for recovery of possession and damages. In these circumstances, it has to be considered when a suit is pending for the same subject matter, whether proceedings under Section 145 Cr.P.C., can be initiated?
20. In , (Senthamaraikannan and two others Vs. Govindarajulu Naidu), this court has held as follows:-
"It is not in dispute that already a suit has been filed in O.S.No.634 of 1992 by the respondent herein against the Revision Petitioners for injunction. It is also stated that along with the suit an application was also filed seeking for interim injunction and that no injunction was ordered by the District Munsif, Tindivanam. The suit relates to R.S.No.265/4 and R.S. No. 266/2. Those two items are part of the properties relating to which the relief under Section 145 was sought for. In this connection it is fruitful to refer to the decision of His Lordship T.S. Arunachalam, J., reported in Indira and 2 others Vs. Dr.Vasantha and 2 others 1990 TLNK (Crl) 67. It has been held by his Lordship as follows:-
"The initiation of parallel proceedings when the identical matter in respect of the disputed property was pending in a Civil Court wherein the question of possession was involved, initiation of parallel criminal proceedings under Section 145 of Cr.P.C., would not be justified".
Here the proceedings has been initiated under Section 145 after the filing of the suit before the Civil Court. The Executive Magistrate was also apprised of this fact. When the Civil court which is competent to grant injunction has not chosen to consider it as a fit case to grant interim injunction, it was not proper on the part of the Executive Magistrate to have ordered injunction. It virtually amounts to usurping of jurisdiction, which he has none. The Executive Magistrate ought not to have passed any order when a competent court is seized of the same. Moreover, the order does not disclose that the Magistrate apprehended breach of peace. Therefore, in such circumstance, the order passed by the Executive Magistrate is unsupportable. It is beyond the jurisdiction of the Magistrate to have passed such an order. Therefore, the order passed by the Executive Magistrate suffers from material irregularity and the irregularity is of such a nature that cannot be cured. Therefore, I hold that the order passed by the Executive Magistrate is liable to be set aside."
21. In JT 2000 (10) SC 17, (Lophinoris Shangpling and Ors V. Hamboy Shullai and Anr., the Hon'ble Supreme Court held as follows:-
On a perusal of the evidence for the first respondent given before the Executive Magistrate, we are of the opinion that no proceedings under Section 145 of th4 Code can continue in respect of the disputed property. First respondent has admitted in his evidence thus:-
"It is a fact that on 26.8.1997 I no longer stay at Jalaw Pdeng within the disputed land".
He also admitted that "it is a fact that I want to stay at Mandanniting of my own will without any outside force or coercion." The preliminary order under Section 145(i) of the Code was passed by the Executive Magistrate on 9.7.1998. If it is a fact that first respondent had vacated from the disputed property way back on 26.8.1997 there is no possibility of expanding the jurisdiction of the Executive Magistrate under the section to cover a dispute regarding possession upto such a farther extent.
Learned counsel for the first respondent made an attempt to interpret the scope of the proviso to Section 145(4) of the Code as as to entangle a dispute of such a father date. We are not impressed by the said interpretation and therefore we are not disposed to accept the said contention.
It is open to the parties to approach the civil court to vindicate their grievances and to have their claims properly adjudicated upon. Without prejudice to the said right we allow this appeal and set aside the impugned order. We quash the proceedings initiated under Section 145 of the Cr.P.C.,"
22. In (A.M. Krishnamurthy Vs. Sub Divisional Magistrate and R.D.O., Villupuram and 2 others), this court held as follows:-
"It is settled law that the Executive Magistrate has jurisdiction to take action under Section 145, Cr.P.C., merely on the Police report, if the report sets out the matter of dispute, the cause of dispute, its nature, the apprehension that unless the action is taken the breach of peace will ensue.
In Subbarama Aiyar V. Mariya Pillai, AIR 1914 Mad. 78(A)), it has been pointed out as under:-
"on the other hand it seems to me that the Magistrate's proceedings are void ab initio by reason of his failure to comply with the requirements of Cl(1) of Section 145, Cr.P.C., This provides that where a Magistrate is satisfied that a dispute exists regarding any land or water or the boundaries thereof within the local limits of his jurisdiction, he shall record a formal order in writing setting forth the grounds of his being so satisfied and requiring the disputing parties to attend his court and file written statements. It is only in this way that proceedings under Section 145 can be initiated. The provision of law is imperative and failure to comply with it destroys the Magistrate's jurisdiction."
This view has been approved by Burn, J., in Mariasusai Udayan V. Mahamud Azzezudeen Sahib, AIR 1936 Mad. 824 (B)) and both these decisions have been referred to in Pakamaraja naicker V. Chidambara Nadar, where Balakrishna Aiyar, J., had concurred with this view, though the facts of that case was slightly different, in that without issuing a preliminary order, the Magistrate proceeded to issue final order."
23. In 2002(2) Law Weekly (Crl.), 695, (V. Jayachandran @ Chandran Vs. The Sub Divisional Magistrate and R.D.O., Padmanabhapuram, and 3 others, this court held as follows:-
It is admitted that the 4th respondent filed a suit with reference to the same property before Sub Court and at a later point of time, the petitioner himself filed a separate suit for permanent injunction with reference to the very same property. Only thereafter, the 1st respondent Executive Authority has issued the preliminary order calling upon the parties to appear before him and file the written statement it is settled position of law that when once the Civil Court had taken note of the dispute between the parties with reference to the declaration or possession, then it is not open to the Executive Authority to entertain any application. Further more, to invoke section 145 of Criminal Procedure Code, there should be a report from the competent Police officer alleging that there was any threat to law and order or there is any possibility of breach of peace in that area. Admittedly, no such report has been given by any Police officials so as to enable the 1st respondent to issue such notice."
Learned counsel for the 4th respondent relied on the decision reported in Ram Sumer Puri Mahant Vs. State of U.P. and others (1985 Crl.L.J 752) wherein it is observed that when a civil litigation is pending for the property wherein the question of possession of a parallel criminal proceedings under section 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue."
24. In 2004 SCC (Cri) 320, (Shanti Kumar Panda Vs. Shankuntala Devi) the Hon'ble Supreme Court held as follows:-
"For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate under Sections 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarised as under:-
(1) 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 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.
(2) A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for an on behalf of the party who would ultimately succeed from the court, it would suffice if only determination of the right with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession.
(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 an 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.
(4) 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 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."
25. From the judgements cited above, it is clear that the dispute has already been taken cognizance by a civil court where the suit has been filed by the respondent and the same is pending. The rights of the parties is to be agitated and decided by adducing proper evidence only before the Civil Court. Therefore, the proceedings of the Executive Magistrate -cum- Revenue Divisional Magistrate, Ramanathapuram, is hereby quashed.
26. Consequently, connected Crl.M.Ps are closed.