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Sec.145 Cr.P.C. proceedings – Civil suit – Pending of civil suit never bars the jurisdiction of executive Magistrate from initiating proceedings when breach of peace occurred – except in cases of Declaration of title or possession with consequential reliefs if any – SDM properly with draw the proceedings before recording final order as the suit is for declaration of title and injunction = PETITIONER: AMRESH TIWARI Vs. RESPONDENT: LALTA PRASAD DUBEY & ANR. = 2000 ( APRIL – VOL 4) JUDIS.NIC.IN /S.C. / FILE NAME =17206

Sec.145 Cr.P.C. proceedings – Civil suit – Pending of civil suit never bars the jurisdiction of executive Magistrate from initiating proceedings when breach of peace occurred – except in cases of Declaration of title or possession with consequential reliefs if any – SDM properly with draw the proceedings before recording final order as the suit is for declaration of title and injunction = 

Jhummamal alias  Devandas  versus  State of Madhya  Pradesh  &  Ors.,

reported in 1988 (4) S.C.C.  452.  

It is submitted that this

authority  lays  down  that merely because a civil  suit  is

pending  does  not mean that proceedings under Section  145

Criminal  Procedure  Code should be set at naught.   In  our

view  this  authority  does  not lay  down  any  such  broad

proposition.  In this case the proceedings under Section 145

Criminal  Procedure Code had resulted in a concluded  order.

Thereafter the party, who had lost, filed civil proceedings.

After  filing the civil proceedings he prayed that the final

order  passed in the Section 145 proceedings be quashed.  It

is  in that context that this Court held that merely because

a  civil suit had been filed did not mean that the concluded

Order  under  Section 145 Criminal Procedure Code should  be

quashed.   

This is entirely a different situation. 

In this

case  the  civil  suit had been filed first.   

An  Order  of

status quo  had already been passed by the competent  civil

court.  Thereafter Section 145 proceedings were  commenced.

No  final  order  had been passed in the  proceedings  under

Section  145.  In our view on the facts of the present case

the  ratio  laid  down in Ram Sumers  case  (supra)  fully

applies.   We clarify that we are not stating that in  every

case  where  a civil suit is filed, Section 145  proceedings

would  never  lie.  It is only in cases where civil suit  is

for possession or for declaration of title in respect of the

same  property and where reliefs regarding protection of the

property  concerned  can be applied for and granted  by  the

civil court that proceedings under Section 145 should not be

allowed  to  continue. This is because the civil  court  is

competent  to  decide  the  question of  title as  well  as

possession  between the parties and the orders of the  civil

Court  would be binding on the Magistrate.  .  In this view

of  the matter the appeal is allowed.  The impugned Order is

set   aside.   In  our view, the  S.D.M.   was  right  in

discontinuing  the  proceedings under Section  145  Criminal

Procedure  Code.  The Order passed by the S.D.M.  on 9th  of

June, 1999 is restored.

 

2000 ( APRIL – VOL 4) JUDIS.NIC.IN /S.C. / FILE NAME =17206

PETITIONER:
AMRESH TIWARI

Vs.

RESPONDENT:
LALTA PRASAD DUBEY & ANR.

DATE OF JUDGMENT: 25/04/2000

BENCH:
D.P.Mahapatro, K.T.Thomas, S.N.Variava
JUDGMENT:

L…..I………T…….T…….T…….T…….T…….T..J
S. N. Variava, J.

Leave granted.

This appeal is against an Order dated 8th September,
1999. By this Order the High Court has, in exercise of
powers under Section 482 of the Criminal Procedure Code, set
aside an Order dt. 9th June 1999, passed by the
sub-divisional Magistrate. The SDM had dropped/discontinued
the proceedings under Section 145 of the Criminal Procedure
Code.

Briefly stated the facts are as follows : In respect
of the property concerned the 1st Respondent had a dispute
with Sharda Prasad and Shiv Kumar. The 1st Respondent filed
Civil Suit No. 280 of 1990 in the Court of Civil Judge,
Gyanpur on 10th October, 1990. It is not denied that this
Suit was for declaration of title, possession and for
injunction. On 10th October, 1990, itself an application
for ad interim Order was made. An Order to maintain status
quo, as on that date, was passed by the Court.

According to the Appellant, on 10th October, 1990
itself the said Sharda Prasad and Shiv Kumar had executed a
Sale Deed in favour of Smt. Prem Kali, who was the mother
of the Appellant. According to the Appellant possession of
the property was delivered to Smt. Prem Kali on the same
day. In Suit No. 280 of 1990, on an application made by
Smt. Prem Kali, she was impleaded as a party defendant. In
that Suit the pleadings are complete. Issues have been
framed. The suit is pending trial.

While this Suit was pending the S.O. Police Station,
Aurai made a report to the S.D.M., Gyanpur stating that
there was a dispute regarding possession of land likely to
cause a breach of peace within his jurisdiction and for
initiating of proceeding under Section 145 Criminal
Procedure Code. On the basis of this report, the learned
S.D.M. passed preliminary Order under Section 145(1)
Criminal Procedure Code. Pursuant to this preliminary Order
the Appellant’s mother appeared and filed a written
statement stating that there was no dispute likely to cause
breach of peace regarding possession of the said property.
It was pointed out that the civil Suit was pending in the
court of civil jurisdiction and an Order directing
maintenance of status quo had already been passed. The 1st
Respondent also filed a written statement pursuant to the
preliminary Order. The 1st Respondent claimed that the
property which formed the subject matter of the civil Suit
was different from the property in respect of which
proceedings under Section 145 Criminal Procedure Code had
been adopted.

The Appellant thereafter made an Application that the
proceedings under Section 145 Criminal Procedure Code be
dropped as a civil Suit in respect of the same property was
pending. That Application was rejected by the S.D.M. on
13th September, 1991. Against the Order dated 13th
September, 1991, a Criminal Revision was filed before the
Additional Session Judge, Gyanpur. The said Criminal
Revision was rejected by an Order dated 16th March, 1993. A
Review Application was also dismissed by the Additional
Session Judge on 11th May 1993.

Thereafter the proceedings under Section 145 Criminal
Procedure Code were resumed. Statements of parties were
recorded. In the course of her statement the 1st
Respondent, inter alia, stated as under :

“The Civil Suit which has been filed regarding this
land which is Suit No. 280 of 1990. In respect of the
disputed land which is the subject matter of the suit an
order for maintain status-quo has been passed The
Civil Suit, I have filed in the Civil Court is for
dispossession of Amrit Lal and Prem Kali from the disputed
land. This suit has been filed for obtaining stay order
against Sharda Prasad.”
Thus the 1st Respondent admitted that the civil Suit
was in respect of this land i.e. the land in respect of
which proceedings under Section 145 Criminal Procedure Code
had been adopted. The 1st Respondent also admits that the
Suit is for possession and for stay. Very fairly it is
conceded before us that the land in respect of which the
proceedings under Section 145 Criminal Procedure Code was
adopted were part of the properties in respect of which Suit
No. 280 of 1990 had been filed.

After the statement of the parties had been recorded,
an Application was made by the Appellant that the
proceedings under Section 145 Criminal Procedure Code may be
discontinued/dropped in view of the pending civil Suit in
which an order of maintenance of status quo had already been
passed. By an Order dated 9th June, 1999, the S.D.M.
dropped the proceedings under Section 145 Criminal Procedure
Code by concluding that there was no propriety in continuing
the proceedings under Section 145 Criminal Procedure Code
when the civil Court was in seisin of the matter and an
Order for maintaining status quo had already been passed.

Against the Order dated 9th June, 1991, the 1st
Respondent filed Criminal Revision No. 1230 of 1999 before
the Allahabad High Court. The Criminal Revision Application
was allowed by the learned single Judge, who set aside the
Order dated 9th June, 1999 and remanded the matter back to
the trial Court for resuming the proceeding under Section
145 Criminal Procedure Code. The only ground on which the
learned single Judge has set aside the Order dated 9th June,
1999 is that earlier an Application for dropping the
proceedings under Section 145 Criminal Procedure Code had
been made and dismissed and that the Revision against that
Order had also been dismissed by the Sessions Court by the
Order dated 11th May, 1993. It was held that the Order 11th
May, 1993 had become final between the parties and was thus
binding. It was held that in view of that Order the trial
court could not have accepted the contention and should have
rejected the Application for dropping the proceedings. It
was held that in view of that Order the only option left to
the Magistrate was to decide the proceedings under Section
145 Criminal Procedure Code between the parties on merit.
It is this Order which is assailed in this Appeal.

We have heard the parties at length. In our view the
High Court has committed an error in setting aside the Order
of the Magistrate on the basis that the earlier Order was
final and binding. The earlier Orders were interim Orders.
They were passed before any evidence or statements had been
recorded. Those Orders were passed only on the basis of the
contentions of the parties. At that stage the 1st
Respondent had contended that the civil proceedings did not
relate to the same properties in respect of which the
proceedings under Section 145 Criminal Procedure Code were
adopted. Thereafter statements were recorded in the Section
145 proceedings. In her statement the 1st Respondent
admitted that proceedings under Section 145 Criminal
Procedure Code were in respect of property which formed the
subject-matter of the civil Suit and in respect of which an
Order for maintenance of status quo had been passed by the
civil Court. The S.D.M. was bound to take a decision
afresh based on the statements before him. It is settled
law that interim Orders, even though they may have been
confirmed by the higher Courts, never bind and do not
prevent passing of contrary Order at the stage of final
hearing. The learned single Judge of the High Court appears
to have lost sight of this.

The learned single Judge also failed to appreciate
that the earlier Orders were passed on the footing that the
civil proceedings related to different properties and were
between different parties. Subsequently, when it became
clear that the civil proceedings were in respect of the same
properties and between the same parties even the factual
position had changed. For that reason also the earlier
Order would not be binding.

The question then is whether there is any infirmity in
the Order of the S.D.M. discontinuing the proceedings under
Section 145 Criminal Procedure Code. The law on this
subject-matter has been settled by the decision of this
Court in the case of Ram Sumer Puri Mahant vs. State of
U.P. & Ors., reported in 1985 (1) S.C.C. 427. In this
case it has been 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 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 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. We are, therefore, satisfied that
parallel proceedings should not continue.”
We are unable to accept the submission that the
principles laid down in Ram Sumers case would only apply if
the civil Court has already adjudicated on the dispute
regarding the property and given a finding. In our view Ram
Sumers case is laying down that multiplicity of litigation
should be avoided as it is not in the interest of the
parties and public time would be wasted over meaningless
litigation. On this principle it has been held that when
possession is being examined by the civil Court and parties
are in a position to approach the civil Court for adequate
protection of the property during the pendency of the
dispute, the parallel proceedings i.e. Section 145
proceedings should not continue.
Reliance has been placed on the case of Jhummamal
alias Devandas versus State of Madhya Pradesh & Ors.,
reported in 1988 (4) S.C.C. 452. It is submitted that this
authority lays down that merely because a civil suit is
pending does not mean that proceedings under Section 145
Criminal Procedure Code should be set at naught. In our
view this authority does not lay down any such broad
proposition. In this case the proceedings under Section 145
Criminal Procedure Code had resulted in a concluded order.
Thereafter the party, who had lost, filed civil proceedings.
After filing the civil proceedings he prayed that the final
order passed in the Section 145 proceedings be quashed. It
is in that context that this Court held that merely because
a civil suit had been filed did not mean that the concluded
Order under Section 145 Criminal Procedure Code should be
quashed. This is entirely a different situation. In this
case the civil suit had been filed first. An Order of
status quo had already been passed by the competent civil
court. Thereafter Section 145 proceedings were commenced.
No final order had been passed in the proceedings under
Section 145. In our view on the facts of the present case
the ratio laid down in Ram Sumers case (supra) fully
applies. We clarify that we are not stating that in every
case where a civil suit is filed, Section 145 proceedings
would never lie. It is only in cases where civil suit is
for possession or for declaration of title in respect of the
same property and where reliefs regarding protection of the
property concerned can be applied for and granted by the
civil court that proceedings under Section 145 should not be
allowed to continue. This is because the civil court is
competent to decide the question of title as well as
possession between the parties and the orders of the civil
Court would be binding on the Magistrate. . In this view
of the matter the appeal is allowed. The impugned Order is
set aside. In our view, the S.D.M. was right in
discontinuing the proceedings under Section 145 Criminal
Procedure Code. The Order passed by the S.D.M. on 9th of
June, 1999 is restored.

Before we part it must be mentioned that in the
impugned Order the High Court has passed strictures against
the S.D.M. The High Court has also directed the District
Magistrate to transfer the proceedings from the S.D.M. who
passed the Order dated 9th June, 1991. In our view the
strictures were uncalled for. We hope that in future the
High Court would not pass such strictures. Two views are
always possible. Merely because the High Court takes a
different view is no ground for passing strictures against
the lower court.

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