Allahabad High Court
Smt. Luxmi Devi vs State Of U.P. And Ors. on 6 March, 1998
Equivalent citations: 1998CRILJ4140
Author: B.K. Sharma
Bench: B.K. Sharma
ORDER B.K. Sharma, J.
1. This writ petition has been prepared by the petitioner Smt. Luxmi Devi for issue of a writ in the nature of certiorary for quashing the order dated 5-10-1996 passed by the respondent No. 1, IIIrd Additional District and Sessions Judge, Kanpur Dehat in Criminal Revision No. 97 of 1995, Smt. Madhuri Devi v. Smt. Maya Devi and another (Annexure 13 to the writ petition).
2. Heard counsel for the parties at length.
3. The following pedigree may be placed on record to help in proper appreciation of the merits of this writ petition.
(See table below)
Shiv Prasad (died in 1956)
|
Ram Behari = Smt. Raj Kumari
(died on 10-10-93) (daughter)
| (died on 22-7-88)
__________________________________________________________
| | |
Smt. Luxmi Devi Smt. Madhuri Devi Smt. Maya
Devi(unmarried)
(petitioner) (Respondent No. 2) (Respondent No. 3)
|
_______________________________________________________
| | |
Krishna Prakash Shree Prakash JaiPrakash
(Respondent No. 4)
4. The dispute relates to 6 plots in Khata No. 61 of village Gauri Chaubey and 3 plots in Khata No. 199 in village Bhainsau, Tehsil Billaur, Distt. Kanpur Dehat. The plots originally belonged to late Shiv Prasad. On his death the said plots came to his daughter Smt. Raj Kumari Smt. Raj Kumari was married to Ram Behari. She died on 22-7-1988. The petitioner claimed that Ram Behari got his name mutated on 2-12-1988 in respect of the disputed agricultural holdings on the death of Smt. Raj Kumari, that at the stage no grievance was raised by any of the 3 married daughters of late Raj Kumari. On 3-1-1991 Maya Devi, respondent No. 3 and Madhuri Devi, respondent No. 2 moved mutation case in respect of the said agricultural holdings and in appeal under Section 210 of the Land Revenue Act, order was passed for mutation in favour of Ram Behari on 10-8-1992. Thereafter the commissioner had made a reference to the Board of Revenue and the matter is pending before the Board of Revenue. On 10-10-1993 Ram Behari died. It is claimed by the petitioner that before his death, Ram Behari had executed a registered will dated 29-9-1992 in favour of his daughter Luxmi Devi (present petitioner) to the exclusion of the respondent Nos. 2 and 3, whose copy was Annexure 4 to the Writ Petition. Smt. Luxmi Devi petitioner sought mutation on its basis in respect of the property of another village and obtained order of mutation in her favour on 10-10-1994 from the Tehsildar (Annexure 5 to the writ petition) and mutation was carved out in revenue papers accordingly (Annexure 6 to the Writ Petition). The petitioner got herself impleaded in the proceedings before the Board of Revenue.
5. On 22-6-1991 Smt. Madhuri Devi, respondent No. 2 moved an application under Section 145, Cr.P.C. before the S.D.M. in respect of plots of Khata No. 61 of village Gauri Chaubey and Khata No. 199 of village Bhainsau claiming that after the death of her mother she was in actual possession of these plots and that during the pendency of litigation before the Tehsildar Ram Behari has taken forcible possession over the plots a week earlier and that there is grave apprehension of breach of peace and praying attachment under Section 146, Cr.P.C. copy of this application was Annexure 1 to the Writ Petition. The S.D.M. passed the order of attachment under Section 146(1) of the Criminal Procedure Code on 17-7-1991. A copy of the order was Annexure 2 to the Writ Petition.
6. Krishna Prakash son of Smt. Madhuri Devi filed Suit No. 608 of 1993 before the IIIrd Additional Munsif, Kanpur Dehat for permanent injunction against Ram Behari, Smt. Luxmi Devi present petitioner and one more person for permanent injunction in respect of house property and certain agricultural plots of these two villages restraining interference with their possession over the same. He had set up an unregistered will dated 12-4-1988 executed by Smt. Raj Kumari.
7. In the said suit, an interim injunction application was moved by the plaintiffs. In the written statement of that suit, a plea was taken that civil Court has no jurisdiction and that the matter was triable by the revenue Court. The learned trial Court passed an order dated 21-4-1995 holding that Civil Court had jurisdiction to try the suit and fixing 5-5-1995 for final hearing of the suit and further allowing the application 87(c)(2) to the extent for interim injunction uptil the date fixed. A copy of this order was Annexure 10 to the Writ Petition. This order was challenged by Smt. Luxmi Devi in revision. This was revision No. 57 of 1995. This revision was allowed by the Sessions Judge by his order dated 2-1-1996 holding that the Civil Judge had no jurisdiction to try the suit as the matter related to agricultural land and title was in dispute which was cognizable by revenue Court alone and the file was ordered to be returned to the trial Court for passing orders in consonance thereof i.e. to say for returning the plaint for presentation before the proper Court. A copy of this judgment was Annexure 11 to the Writ Petition. This order was challenged by way of Writ Petition No. 5375 of 1996 by Krishna Prasad aforesaid and his two minor brothers Shree Prakash and Jai Prakash. The record of the said writ petition was requisitioned and is before this Court. In this writ petition, the operation of the order dated 2-1-1996 passed by the Additional Sessions Judge was stayed by the High Court's order dated 13-2-1996 and after the stay vacation application has been moved in that writ petition by Smt. Luxmi Devi, the stay orders of the High Court dated 13-2-1996 was made absolute by order dated 18-11-1996 of the High Court and that writ petition is still pending.
8. Now coming to the proceedings under Section 145, Cr.P.C. Krishna Prakash and others moved an application for impleadment in those proceedings but the said application was rejected by S.D.M. by his order dated 7-9-1993 (Annexure 7 to the Writ Petition). Being aggrieved by the said orders, Krishna Prakash and his brothers filed a Revision No. 122 of 1993 before the Sessions Judge, Kanpur Dehat which was rejected by him by his order dated 15-2-1994 (Annexure 8 to the Writ Petition).
9. It is claimed in the present writ petition that the police of police station submitted a report to the S.D.M. whereupon, the land in dispute was attached under Section 146(1), Cr.P.C. and was given to a receiver on rent of Rs. 15,000/- as Batayee for agricultural purpose. A plea was raised before the S.D.M. by Smt. Madhuri Devi that there was no apprehension of breach of peace and so the proceedings be dropped. The S.D.M. Billaur had called for a report from the police station whether the apprehension of breach of peace still existed. The police gave a report that the apprehension of breach of peace still existed and that litigation was also pending between the parties about Khata No. 119. The Magistrate rejected his application by order dated 17-10-1995 mentioning the police report and also observing that with the consent of the parties, he had earlier appointed a Supurdar in this case and the disputed land has been given on rent to the Supurdar uptil 30-6-1996 for agricultural work and holding that there is apprehension of breach of peace rejected the prayer by his order dated 17-10-1995 and directed the proceedings under Section 145, Cr.P.C. to continue till any party obtained a contrary order from any competent Court, (copy of this order is Annexure 12 to the writ petition). This order has been challenged by Smt. Madhuri Devi by way of Revision No. 97 of 1995. This revision was allowed by the Additional Sessions Judge by his order dated 5-10-1996 on the ground that Civil Suit No. 608 of 1993 is pending between the parties and interim order has also been passed therein and that if the proceedings under Section 145, Cr.P.C. be allowed to continue, it may lead to inconsistency between the orders of the Magistrate and the orders of the Civil Court and consequently the file was ordered to be returned to the Magistrate with a direction to close the proceedings under Section 145, Cr.P.C. A copy of this judgment in revision is Annexure 13 to the Writ Petition. It is this order which is the subject matter of challenge in this writ petition.
10. The course of proceedings narrated above is not in controversy between the parties. The only question before this Court is whether the proceedings under Section 145, Cr.P.C. should be allowed to be continued as claimed by the petitioner. The learned counsel for the respondent Nos. 2 and 4 both supported the judgment and order of the learned Sessions Judge in Revision No. 97 of 1995 claiming that the civil suit was still pending and interim order had been granted by the trial Court therein. Now the undisputed factual position is that in the civil suit an interim injunction application had been moved and while the trial Court by his order dated 21-4-1995 upheld the jurisdiction of the Civil Court to try the suit, it fixed 5-5-1995 for the hearing of the suit and granted the ad interim injunction as prayed for in the application under Section 87(c)(2) uptil, the date fixed i.e. 5-5-1995. The learned counsel for the contesting Opp. Parties Nos. 2 and 4 have not claimed that the trial Court passed any order after 21-4-1995 extending the interim order beyond 5-5-1995 nor do they claim anywhere that any type of interim injunction was granted by the civil Court in that suit on 5-5-1995 or on any date thereafter uptil now. The effect of the stay order dated 2-1-96 granted in the writ petition. No. 5375 of 1996 which has been confirmed during the pendency of the writ petition on 18-11-96, is that the order of the Additional Sessions Judge in Criminal Revision No. 57 of 1995 holding that the Civil Court had no jurisdiction and directing the return of the plaint, got stayed and consequently, the order dated 21-4-1995 passed by the trial Court got revived. However, the fact remains that the controversy whether the Civil Court had jurisdiction to try the suit or the revenue Court had jurisdiction to try the suit is yet to be resolved by the High Court in Writ Petition No. 5375 of 1996 which is pending and has as yet not come to the stage of hearing and it is not known as to when such stage will come. Since the question of jurisdiction is pending determination in Writ Petition No. 5375 of 1996, it is obvious that the trial Court cannot proceed with the suit till the determination of the question of jurisdiction in the said writ petition (No. 5375 of 1996). It is not in controversy that no proceedings are being taken in the suit in view of the interim stay order which has been confirmed subsequently in the writ petition No. 5375 of 1996.
11. The learned counsel for the petitioner has relied on the following authorities;
(1) Abdul Gafoor v. State of U.P., 1992 JIC 35 delivered by Hon. B.P. Singh, J.
(2) Raju v. State of U.P., (1994) 31 All Cri C 537 delivered by Hon. K.L. Sharma, J.
(3) Harpal v. State of U.P., 1995 All Cri R 674 : 1995 All LJ 840 delivered by Hon. I. S.Mathur, J.
(4) Prakash Chand Sachdeva v. State, AIR 1994 SC 1436.
(5) Shashi Bhushan Gupta v. Mool Chandra Gupta, 1996 JIC 21 : 1996 Cri LJ 1743, delivered by Hon. N.S. Gupta, J.
(6) Sanjai Kumar v. VIth Addl. District Judge, 1996 Cri LJ 2413 : 1996 All LJ 910 delivered by Hon'ble S.N. Saxena, J.
12. On the other hand the learned counsel for the respondents Nos. 2 and 4 had relied on the authority Smt. Minta Devi v. Anant Ram alias Antu, (1997) 34 All Cri C 566 : 1997 All LJ 205 delivered by Hon. Virendra Saran, J.
13. I have considered the various authorities cited and also the Basic authority Ram Sumer Puri Mahant v. State of U.P., AIR 1985 SC 472. It is this authority which has been interpreted by the single Judges of this Court one after the other and which has also been reiterated by the Apex Court. In the case of Ram Kumar Puri Mahant, the facts were in respect of the property in dispute in the proceedings under Section 145, Cr.P.C. there was a suit for possession and injunction being title suit No. 87 of 1975 filed in the Court of Civil Judge, Ballia, wherein, the question of title was gone into and by the judgment dated 28-2-1981 the suit was dismissed and the appellant before the Apex Court was the defendant in that suit and that an appeal had been carried from the decree of the civil Judge and the same was pending disposal before the appellate Court and against this back ground, the Apex Court made the following observations (Para 2) :
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 proceeding 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 or 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.
14. In the case of Abdul Gafur 1992 JIC 35 (All), Hon'ble B.P. Singh, J. has observed :
In the case of Ram Sumer Puri, Mahant, the question of title and possession over the subject-matter had already been adjudicated and the suit had been dismissed by the Civil Judge. An appeal against the judgment and order of the Civil Judge was still pending. It was in this background that the Supreme Court did not approve the parallel proceedings under Section 145, Cr.P.C. in respect of the same subject-matter between the same parties. Thus, Ram Sumer's case is not an authority on the question that proceedings under Section 145, Cr.P.C. must be dropped in all cases whenever a civil suit is pending in respect of the same subject-matter between the same parties or between the parties through whom the parties are claiming their rights. Of course, parallel proceeding should not be allowed to continue if a party under Section 145, Cr.P.C. can seek an effective remedy/declaration from the Civil Court. Even in such a ease the proceedings under Section 145, Cr.P.C. should be dropped only when the Civil Court has passed some effective order indicating as to which of the parties was entitled to possession. In some cases the proceeding should also be dropped when the Civil Court has appointed a receiver or has made some arrangement for the maintenance of such a property. But, when the Civil Court does not clearify the position regarding the possession of the contesting parties by passing an effective order and simply passes an innocuous order like maintenance of status-quo, the criminal proceedings are not to be dropped because in that case both the parties may stake their claim for possession and the situation may lead to the breach of peace. In such cases, even proceeding under Sections 107/116, Cr.P.C., may not prove to be effective and the subject-matter may have to be attached by the Criminal Court. Of course, orders passed by the Criminal Court in such cases shall be subject to the decision of the Civil Court. Thus, the Magistrate is not bound to drop the proceedings pending in his Court in all cases under Section 145, Cr.P.C. for the simple reason that a civil suit is pending in the Civil Court in respect of the same subject-matter between the same parties or through whom they are claiming.
15. In the case of Abdul Gafur 1992 J1C 35 (All) the revenue Court had passed the order that the parties were to maintain status quo and the position being ambiguous it was held that the Criminal Court was not barred from deciding the question as to which one of the parties was in possession.
16. In the case of Raju v. State (1994) (31) All Cri C 537, practically the same view was taken. It was said that though the Civil Litigation was pending, it has not been adjudicated uptill then and the interim order passed by the learned Munsif did not clearly specify the position of any of the parties but. had actually directed the parties to maintain status-quo which was very vague and it was observes that if the civil Court passed the clear out order regarding the position of cither of the two parties, the order of the Magistrate shall automatically come to an end.
17. The case of Prakash Chandra Sachdeva AIR 1994 SC 1436 revolved on its own facts and therein it was said that a suit or remedy in Civil Court for possession or injunction normally prevents a person from invoking jurisdiction of a Criminal Court as observed in Ram Sumer's case, particularly, when possession is being examined by the Civil Court and parties arc in a position to approach the Civil Court for interim orders such as injunction order or appointment of a receiver during the pendency of a dispute. In the present case as noted earlier, the Civil Court before whom the suit is pending has neither been approached by the parties after the expiry of the interim injunction on 5-5-95 and apparently they were not in a position to approach the Civil Court whose jurisdiction is in controversy and the controversy can be set against only after the writ petition No. 5375 of 1996 is decided on merits by the High Court. The view taken in the remaining case laws relied upon by the learned counsel for the petitioner is on the same lines as the authorities discussed earlier in this judgment and it is not necessary to dilate on these authorities.
18. So far as the case of Smt. Minta Devi v. Anant Ram 1997 All LJ 205 is concerned, it also does not help the contesting respondents. In this authority, reliance was placed on Ram Sumer's case AIR 1985 SC 472 and there was also reference made to an authority of the Apex Court Dharampal v. Smt. Ramshri, (1993) 30 All Cri C 140 : 1993 All LJ 691 and the following observations of the Apex Court were quoted at P. 694 of All LJ :
It is obvious from Sub-section (1) of Section 146, that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties there to with regard to the person entitled to the possession thereof. The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject-matter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. Otherwise, there will be inconsistency between the order passed by the Civil Court and the order of attachment passed by the Magistrate. The proviso to Sub-section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute." When a Civil Court passes an order of injunction or receiver, it is the Civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the Civil Court, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.
19. In the present case, the interim order passed by the trial Court came to an end as far back as 5-5-95 and as noted earlier, the Civil Court is not in a position to pass any effective order in the matter so long as Writ Petition No. 5375 of 19% is not decided by the High Court on merits and so under these circumstances, it is found that the jurisdiction of the Magistrate to proceed with under Section 145, Cr.P.C. was not ousted because of the pendency of the civil suit aforesaid. A contrary view will only defeat the ends of justice and that is not the purport of the authority Ram Sumer Puri or the authority in the case of Dharampal and the other authorities.
20. In the case of Smt. Minta Devi before Hon'ble Virendra Saran, J. The factual position had been described at page 574 of 1997 (34) All Cri C 566 : at p. 211 of 1997 All LJ 205. It was observed :
The present case is clearly distinguishable as the plaint in the civil suit shows that there is specific claim of possession by respondent, Anant Ram, on the ground of tenancy of the disputed property and the Civil Court has granted an injunction which is still in existence.
21. The learned Judge has also relied on the authority Harpal v. State 1995 All LJ 840 and quoted the following observations from that authority at p. 842 of All LJ :
Where the Civil Court has already adjudicated upon the question of possession even though that may have been done by way of an interlocutory order or where such an adjudication is made by the Civil Court after the commencement of the proceedings under Section 145, Cr.P.C. and passing of the order under Section 146(1), Cr.P.C. in such a case no doubt the order passed by the Magistrate will come to an end or if the Civil Court's order already existed, the Magistrate will have no jurisdiction to commence proceedings under Section 145, Cr.P.C. or to pass an order of attachment.
I am in respectful agreement with these observations.
22. It may be mentioned here that the position as it exists today was in existence even on 5-10-1996 when the impugned order (Annexure) 13 to the writ petition) was passed by the Additional Sessions Judge in Criminal Revision No. 97 of 1995. It may be recalled that the writ petition No. 5375 of 1996 was filed before the High Court on 8-2-1996 and the slay order was passed therein on 13-2-1996 much before the passing of the impugned order by the Additional Sessions Judge.
23. Thus this writ petition shall have to be allowed and is allowed. The impugned order dated 5-10-1996 passed by the Additional Sessions Judge (Annexure 13 to the writ petition) is quashed. The proceedings under Section 145, Cr.P.C. pending before the S.D.M. (Case No. 1/8 of 1994-95, Madhuri Devi v. Ram Bhehari (deceased) Luxmi Devi. Village Bhainsomi/Gauri Chaubey, P.S. Shivrajpur, Tehsil Biliaur, Kanpur Dehat) shall get revived and be continued and will be decided by the learned S.D.M. expediliously and in accordance with law. However, after the writ petition No. 5375 of 1996 is decided by the High Court if and when the court, civil/criminal as the case may be, held by the High Court to be having jurisdiction to decide the dispute in the suit passes an effective interim order of injunction or the suit is finally disposed of by the competent court, civil/criminal as the case may be the proceedings before the Magistrate if not already concluded shall come to an end.