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Bhoopatsingh S/O Khoobsingh and anr. Vs. Anrathsingh S/O Khoobsingh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCri. Rev. No. 90 of 1989
Judge
Reported in1991(0)MPLJ371
ActsCode of Criminal Procedure (CrPC) , 1974 - Sections 107, 116, 144, 145 and 146
AppellantBhoopatsingh S/O Khoobsingh and anr.
RespondentAnrathsingh S/O Khoobsingh and anr.
Appellant AdvocateArun Mishra, Adv.
Respondent AdvocateAkhil Shrivastava, Adv. for Non-applicant Nos. 1 and 2
Cases ReferredIqwal Mohammed v. State of M.P. and Ors.
Excerpt:
.....under section 145, criminal procedure code have stood concluded by a final order of the executive magistrate, merely because an unsuccessful party has later on chosen to approach the civil court, the pendency of civil proceedings cannot be permitted to be utilised as a ground for setting at naught the concluded order of the criminal court;.....decree in that c.d.s. no. 346-a/84. party no. 2 initiated proceedings under order 9, rule 13, civil procedure code for setting aside the ex parte, decree. these proceedings are registered as m.j.c. no. 10/87. therein they moved an application on 21-8-1987, complaining that the opponents in disguise of the ex parte decree were attempting at taking over possession of the suit property and also trying to alienate the same. by order dated 28-10-1987, the civil court directed that the implementation of the ex parte decree shall remain stayed for a period of two months, within which period the parties shall have the m.j.c. proceedings concluded.4. the party no. 2 also filed a civil suit (c.o.s. no. 110-a/87) and therein they prayed for the grant of an interim injunction protecting their.....
Judgment:
ORDER

R.C. Lahoti, J.

1. This revision is directed against an order of the Sessions Court whereby in proceedings Under Sections 145/146, Criminal Procedure Code, the Sessions Court has in supersession of the order of the S. D. M. directed the order of attachment and appointment of Receiver to be restored while the learned Magistrate had directed the proceedings to be dropped.

2. The facts are little complicated and need to be noticed with care. For the sake of convenience Bhoopatsingh and Gumansingh, the two brothers and petitioners herein, shall be referred to as 'Party No. 1 and Anrathsingh and Phool Bai, the husband and wife, non-petitioners Nos. 1 and 2 herein, shall be referred to as 'Party No. 2' as they were before the original Court.

3. The property in dispute consists of agricultural land. It appears that the land is recorded in the revenue papers in the name of Vinodsingh and Hukumsingh both minors. Their father Anratsingh, purporting to act as their guardian, transferred the said land by way of sale to Party No. 1. The two minors acting through their mother seem to have filed a civil suit for setting aside the sale and they succeeded in securing an ex parte decree in that C.D.S. No. 346-A/84. Party No. 2 initiated proceedings Under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte, decree. These proceedings are registered as M.J.C. No. 10/87. Therein they moved an application on 21-8-1987, complaining that the opponents in disguise of the ex parte decree were attempting at taking over possession of the suit property and also trying to alienate the same. By order dated 28-10-1987, the Civil Court directed that the implementation of the ex parte decree shall remain stayed for a period of two months, within which period the parties shall have the M.J.C. proceedings concluded.

4. The Party No. 2 also filed a civil suit (C.O.S. No. 110-A/87) and therein they prayed for the grant of an interim injunction protecting their possession over the suit property. The opposite party having made appearance on 2-9-1988, the Civil Court has passed a bi-parte order in the civil suit holding that the plaintiffs (Party No. 2) appeared to be prima facie in possession of the suit property on the date of the suit and hence the Party No. 1 and the two minors have been restrained from interfering with the possession of Party No. 2 over the suit property.

5. By order dated 11-9-1989 disposing of M.J.C. No. 10/1987, the ex parte decree passed earlier against the Party No. 2, has been directed to be set aside.

6. It further appears that the police of Vidisha having apprehended breach of peace on the question of possession over the suit property, initiated proceedings Under Sections 145/146, Criminal Procedure Code impleading both the parties before the S.D.M., Basoda. The learned Magistrate passed a prelimonary order Under Section 145(1), Criminal Procedure Code and also forming an opinion that the case was one of emergency directed attachment also to be made Under Section 146, Criminal Procedure Code. After hearing both the parties and all the facts of the case having been brought to the notice of the learned Magistrate, a detailed order was passed on 20-6-1988 whereby the proceedings were directed to be dropped recalling the attachment and also directing the Police and the Receiver to deliver possession of the suit property to Party No. 2 in view of the interim order of injunction of, the Civil Court referred to hereinabove.

7. The Party No. 1 preferred a revision. The learned Sessions Court formed an opinion that the two minors were not parties before the Magistrate and they too ought to have been heard, that without recording evidence, the learned Magistrate could not have directed possession to be restored back to Party No. 2 from the Receiver, and, that until the matter achieved a finality, the order of attachment and custody with the Receiver should continue to remain effective.

8. It is unfortunate that in spite of the Apex Court having laid down the law twice, in Ram Sumer Puri Mahant v. State of U.P. and Ors., AIR 1985 SC 472 and Jhunamal alias Devandas v. State of Madhya Pradesh, AIR 1988 SC 1973. The principles of law have not reached home to those before whom come up proceedings Under Section 145/146, Criminal Procedure Code and the consequence is confusion which prevails. Several other decisions have been cited at the Bar but in the opinion of this Court they hardly require to be referred in view of the law laid down by the Apex Court.

9. Ram Sumer Puri (supra) was a case where a title suit for possession and injunction had concluded on 28-2-1981 by a decree of competent Civil Court dismissing the suit. The plaintiff had gone in appeal which was pending. At that stage proceedings Under Section 145, Criminal Procedure Code were initiated. It was open to parties to have approached the Civil Court in pending litigation for interim order such as could afford adequate protection of the property during the pendency of the dispute. Their Lordships observed : -

'When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceedings Under Section 145 of the Code, would not be justified. The 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.'

Their Lordships quashed the order of the Magistrate' initiating proceedings Under Section 145, Criminal Procedure Code and directing attachment of the property, leaving it open to either party to move the Civil Court in civil litigation for appropriate interim order governing the dispute relating to possession.

10. 01. In Jhunamal's case (supra) the dispute related to a shop premises. The proceedings Under Section 145, Criminal Procedure Code were initiated by the Police apprehending breach of peace. On 13-8-1982, the Magistrate made a preliminary order. The proceedings concluded on 17-5-1985 by the Magistrate making a final order declaring Jhunamal in occupation of the property within 2 months from the date of preliminary order, restraining the opposite party from interfering with the possession of Jhunamal. On 16-7-1985 the opposite party filed a suit for injunction and on 14-8-1985 obtained a temporary injunction against Jhunamal which was vacated in appeal.

10.02. The final order Under Section 146, Criminal Procedure Code was challenged in revision which was dismissed by Sessions Court on 27-9-1985. The opposite party then approached the High Court Under Section 482, Criminal Procedure Code which petition was accepted by the High Court relying on Ram Sumer Pun's case (supra) forming an opinion that in view of the pendency of the civil proceedings there was no justification for continuing with the proceedings Under Section 145, Criminal Procedure Code.

10.03. Their Lordships observed that Ram Sumer Pun's case was totally misunderstood and it could not be utilised for setting at naught a concluded order of Magistrate Under Section 145, Criminal Procedure Code merely because the unsuccessful party had approached the Civil Court.

Their Lordships observed that 'an order made Under Section 145, Criminal Procedure Code deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the Civil Court. The unsuccessful party therefore must get relief only in the Civil Court. He may move the Civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the Magistrate has reached.'

10.04. Their Lordships set aside the order of the High Court and restored that of the Magistrate.

11. Incidentally two decisions of this Court may be noticed. In Sureshchandra v. Sitabai and Ors., 1983 MPLJ 119, 1983 JLJ 146, this Court relying on Mathuralal v. Bhanwarlal and Anr., AIR 1930 SC 242 observed : -

'The proceedings contemplated Under Section 145, read with Section 146, of the Code of Criminal Procedure are basically different from a suit for declaration and injunction. The conflict of jurisdiction have of course to be avoided but where there is no likelihood of any conflict, merely the institution of a civil suit or civil suits is not a bar to the Executive Magistrate exercising his functions for preventing the breach of the peace.'

12-13. In Kaniram v. Kashiram and Anr., 1987 JLJ 494, Ram Sumer Puri's case (supra) though available was not cited before the Court and no other authority, for the matter of that, was also placed before the Court. The proceedings Under Section 145, Criminal Procedure Code were initiated during the pendency of the civil suit for declaration of title, the S. D. M. had passed a preliminary order Under Section 145(1), Criminal Procedure Code and also an order for attachment of the property in dispute. The Sessions Court set aside the order of attachment in revision. Vide para 11, there is an observation that mere pendency of civil suit does not constitute a bar to proceedings Under Section 145 of the Code. Still vide para 15, this Court refused to interfere with the order of the Sessions Court, sustaining the order on the ground that there was no material for holding that the case was one of emergency. Thus though the order of attachment was set aside yet it does not appear whether the proceedings Under Section 145, Criminal Procedure Code were premitted to be continued or not.

14. In an earlier decision of this Court in Iqwal Mohammed v. State of M.P. and Ors., 1973 MPLJ 78, 1973 JLJ 33 it appears that during pendency of proceedings Under Section 145, Criminal Procedure Code the Civil Court passed an order of injunction in favour of the parties. The S. D. M. thereafter concluded the proceedings recording his own finding as to which of the two parties was in possession of the disputed property on the date of the preliminary order or within two months thereof. The problem posed before this Court was that in view of Civil Court's order of injunction, the Magistrate could not have passed an order directing delivery of the property to the successful party if the party having an injunction order in its favour from Civil Court had anyhow managed to come in possession of the property; where a receiver was appointed by the Magistrate after making attachment of the property, the possibility of the party unsuccessful before the Magistrate but having an order of injunction from the Civil Court in his favour contending that the property was attached from its possession, could not be ruled out. The Court resolved the situation by observing : -

'In such circumstances, to avoid further complications, the property should continue 'in posession of the receiver till the decision of the Civil Court. The party in whose favour the decision of the Civil Court is given get back the possession of the property from the Receiver as also the mesne profits collected by him.'

15. Several complex situations may aise in individual facts and circumstances of the cases, posing multifarious problems before the Courts in proceedings Under Sections 145/146, Criminal Procedure Code. If well advanced proceedings before Executive Magistrate were to be dropped abruptly recalling appointment of the receiver, a question would certainly arise which of the two contending parties should be placed in possession of the property. In the absence of any order made by a competent Court, recalling of the order of attachment consequent to dropping of the proceedings by the Magistrate could itself create a cause for the parties breaking their heads.

16. Keeping in view the law laid down by their Lordships of the Supreme Court, the following principles emerge : -

(i) where the question of title stands concluded by a decree of a competent Civil Court, the proceedings Under Section 145, Criminal Procedure Code are totally misconceived, and the remedy lies in initiating proceedings Under Sections 107/116, Criminal Procedure Code and binding over the erring party so as to respect the decree of the Civil Court;

(ii) when a civil litigation is pending either before the original Court or before the Appellate Court and looking to the nature and scope of the litigation, the parties are in a position to approach the Civil Court for interim orders such an injunction order or appointment of a receiver for adequate protection of the property during the pendency of the dispute, or if there be such an order already existing, again there is no justification for initiating parallel criminal proceedings Under Sections 145/146, Criminal Procedure Code. If apprrhension as to breach of peace is persisting, the remedy lies in taking recourse to proceedings Under Sections 107/116 or Section 144, Criminal Procedure Code;

(iii) if the proceadings Under Section 145, Criminal Procedure Code have stood concluded by a final order of the Executive Magistrate, merely because an unsuccessful party has later on chosen to approach the Civil Court, the pendency of civil proceedings cannot be permitted to be utilised as a ground for setting at naught the concluded order of the Criminal Court; the order of Criminal Court Under Sections 145/146, Criminal Procedure Code should be permitted to operate unless and until superseded by an order or a decree of Civil Court. The Civil Court has jurisdiction to give a finding different from that which the Magistrate had reached;

(iv) if the nature and scope of civil litigation is such as where the Civil Court cannot grant an interim relief (such as where the question of title and possession relating to immovable property is only incidentally in question and the Civil Court would not have jurisdiction to grant an interim relief) or where the Civil Court having been approached has refused to grant an interim relief for adequate protection of the property during the pendency of the suit, the jurisdiction of the Magistrate to adjudicate upon the dispute before it Under Sections 145/146, Criminal Procedure Code shall not be taken away merely because of the pendency of any dispute between the parties before the Civil Court.

16-A. In the present case the learned Magistrate has directed the property in dispute to be attached. A competent Civil Court was seized of the civil suit between the parties wherein not only the Court was competent to make an interim order touching the question of possession over the suit property, it had in fact passed an order of injunction on 2-9-1988. Factually it is not known whether the order of attachment made by the Magistrate was carried out and the property in dispute was entrusted to the custody of the receiver. In this view of the facts the only appropriate order that can be made is as under : -

(i) both the impugned orders of the Courts below are set aside. The parallel proceedings Under Section 145, Criminal Procedure Code are directed to be dropped;

(ii) if the order of attachment has not been carried out so far, the parties shall be bound to abide by the order of injunction or any other interim order passed or to be passed by the Civil Court; the erring party shall be liable to be proceeded against Under Sections 107/116, Criminal Procedure Code, if need be;

(iii) if the order of attachment has already been carried out and the property is in custody of the receiver as on the date, the interim custody of the receiver shall be continued unless and until set aside or superseded by an order of the Civil Court.

17. Order accordingly.


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