Punjab-Haryana High Court
Sukhwant Kaur vs Mohinder Singh on 11 August, 2009
Author: Rajesh Bindal
Bench: Rajesh Bindal
Crl. Misc. No. 44466-M of 2005 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Misc. No.44466-M of 2005 (O&M)
Date of decision: August 11 ,2009
Sukhwant Kaur
.. Petitioner
v.
Mohinder Singh
.. Respondent
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. M. S. Sidhu and Mr. Raj Kumar Kakkar, Advocates
for the petitioner.
Mr. Deepak Sibal, Advocate for the respondent.
...
Rajesh Bindal J.
The petitioner has approached this Court seeking to challenge the order dated 3.3.2005, passed by learned Additional Sessions Judge, Fast Track Court, Ferozepur, whereby that of the Sub Divisional Magistrate, Zira in proceedings under Sections 145/146 Cr.P.C. was set aside.
Briefly, the facts are that the petitioner claims to be the daughter and the respondent claims himself to be the adopted son of late Gehal Singh, whose property is in dispute. Gehal Singh died on 10.1.1998. On the death of Gehal Singh, mutation of ownership of land was sanctioned in favour of the respondent by Assistant Collector Ist Grade vide order dated 13.10.1999 on the basis of a will presented by him. It was a contested case, wherein the petitioner as well as other legal heirs objected to. Further litigation regarding sanction of mutation in favour of the respondent is pending before the higher authorities. On an application filed by the petitioner under Section 145 Cr.P.C. before Sub Divisional Magistrate, Zira, vide order dated 22.9.2004, in exercise of powers under Section 146 Cr.P.C., Tehsildar, Zira was appointed as receiver of the land in dispute, who was directed to take immediate possession of the disputed land. Aggrieved against the order, the respondent filed revision before the learned court below, which was accepted vide impugned order.
Learned counsel for the petitioner submitted that it was a disputed fact as to who was in actual physical possession of the property in dispute. The litigation regarding sanction of the mutation between the parties was pending.
Crl. Misc. No. 44466-M of 2005 [2]There was already fight between the parties on account of which FIR was lodged on 14.5.2004. Under such circumstances, the only right course available with the petitioner, was to move application before the Sub Divisional Magistrate for appointment of receiver so that the dispute did not aggravate further. The claim of the respondent that he was the adopted son of deceased- Gehal Singh was totally unfounded. Once deceased-Gehal Singh had a daughter, there was no question of any adoption. The respondent was trying to usurp the property in dispute. The entire revenue record was otherwise in favour of the petitioner. He further submitted that the order passed by the Sub Divisional Magistrate, being interlocutory in nature, revision against the same was not maintainable before the learned court below and consequently the order passed by it is liable to be set aside. Reliance was placed upon Kartar Singh and others v. Smt.Pritam Kaur, 1984(1) RCR (Crl.) 617 and Manohar Lal v. Sheo Lal, 1998(4) RCR (Criminal)
848. It was further submitted that when the application was filed with the Sub Divisional Magistrate, the petitioner did not have the knowledge about the filing or pendency of any suit.
In response to the contentions of learned counsel for the petitioner, learned counsel for the respondent submitted that proceedings under Sections 145/146 Cr.P.C. initiated by the petitioner are nothing else but an abuse of process of law. In fact, deceased-Gehal Singh had two wives. The petitioner is the daughter from one wife, whereas the respondent is the son from other. The respondent had filed a suit for declaration and injunction regarding the suit property on 21.1.2004. After considering the written statement filed by the petitioner, vide order dated 14.6.2004, the trial court had directed the parties to maintain status quo, in the presence of counsel for the parties. The order was not impugned by the petitioner, rather, with a view to misuse the process of law, proceedings under Section 145/146 Cr.P.C. were initiated without disclosing the factum of pendency of civil suit. The service of the petitioner was managed and order was obtained ex-parte. Mere fact that the petitioner tried to invoke the jurisdiction under Section 145/146 Cr.P.C. shows that she is not in actual physical possession of the property. Otherwise, there was no reason for her to have disputed the possession of the property and prayed for its transfer to the Tehsildar as the civil court had directed the parties to maintain status quo. The effect of the order of the Sub Divisional Magistrate is that the same will now over-ride the order of the civil court. Once civil litigation was already pending, jurisdiction under Sections 145/146 Cr.P.C. could not, at all, be invoked. Reliance was placed upon Balraj Singh v. Sewa Singh, 2002(2) RCR (Criminal) 820; Roop Lal Bhalla and others v.
Crl. Misc. No. 44466-M of 2005 [3]State and another, 2005(1) RCR (Criminal) 1006 and Mahar Jahan and others v. State of Delhi and others, (2006) 1 SCC (Cri) 320.
As far as the contention raised by learned counsel for the petitioner with regard to the maintainability of the revision before the learned court below is concerned, it was submitted that the order passed by the Sub Divisional Magistrate was final in nature as Tehsildar had been directed to take possession of the land and even harvest the crop if standing. In the alternative, it was submitted that even if the order is found to be interlocutory in nature and that the revision before the court below was not maintainable, presently the matter, being before this court, in proceedings under Section 482 Cr.P.C., patently illegal order passed by the Sub Divisional Magistrate should not be allowed to stand. The order of the Sub Divisional Magistrate was set aside by the learned court below primarily on the ground that civil litigation between the parties was already pending when the jurisdiction under Sections 145/146 Cr.P.C. was invoked.
Heard learned counsel for the parties and perused the relevant referred record. Before I proceed to deal with the respective contentions of the parties, it would be appropriate to refer to the enunciation of law on the point in issue in the present case, namely, as to whether proceedings under Sections 145/146 Cr.P.C. could be initiated once civil litigation between the parties was already pending, is no more res integra. Hon'ble the Supreme Court in Mahar Jahan's case (supra) opined that the propriety does not demand that criminal proceedings should be allowed to continue during the pendency of civil litigation with regard to the same dispute. Whichever way proceedings under Section 145 Cr.P.C. may terminate, the order of the criminal court would always be subject to decision by the civil court. The parties can raise their grievances before the civil court and pray for interim order. During the pendency of civil suit, criminal proceedings under Section 145 Cr.P.C. deserve to be quashed.
Similar view was expressed by this Court in Balraj Singh's case (supra), where it was opined that initiation of proceedings under Sections 145/146 Cr.P.C. during the pendency of civil litigation is nothing else, but an abuse of process of court.
Delhi High Court in Roop Lal Bhalla's case (supra) also opined that once a dispute regarding ownership and possession of the property was pending in the civil court and status quo regarding possession had been ordered, the jurisdiction of the criminal court was ousted. The order passed by the Sub Divisional Magistrate was quashed.
If the facts of the present case are considered in the light of Crl. Misc. No. 44466-M of 2005 [4] enunciation of law as referred to above, it transpires that a civil suit was filed by the respondent on 21.1.2004 regarding the suit property praying for declaration and permanent injunction along with prayer for interim relief. In the suit, the petitioner appeared and filed written statement. Thereafter, the respondent filed replication. On consideration of the pleadings of the parties and also their respective contentions, the civil court directed the parties to maintain status quo with regard to the property on 14.6.2004. The petitioner feeling not aggrieved against the order of status quo did not prefer any appeal against the said order. The proceedings under Sections 145/146 Cr.P.C. were initiated by the petitioner admittedly after the passing of the order of status quo by the civil court. Once that is so, I do not find that any illegality has been committed by the learned court below in setting aside the order passed by the Sub Divisional Magistrate directing Tehsildar to take possession of the land. It was for the reason that before the Sub Divisional Magistrate, the factum of pendency of civil suit was not disclosed.
As far as the contention raised by learned counsel for the petitioner regarding maintainability of the revision petition before the learned court below is concerned, I do not deem it appropriate to deal with the same, considering the fact that the order passed by the Sub Divisional Magistrate was patently illegal and the assumption of jurisdiction by him was totally uncalled for. Even in proceedings under Section 482 Cr.P.C., such a palpable error deserves to be corrected, as otherwise also a revision to this court would be maintainable against any interim order.
For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed.
(Rajesh Bindal)
Judge
August 11 ,2009
mk