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Mathai Varghese Vs. Kuriacko Chacko - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1970CriLJ1170
AppellantMathai Varghese
RespondentKuriacko Chacko
Cases ReferredAmritlal N. Shah v. Nageswara Rao
Excerpt:
.....and thereafter to make an enquiry under sub-section (6). it is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. but where no receiver has been appointed by the civil court and the plaintiff's case of possession is only pending investigation and decision by that court, the magistrate cannot keep quiet if he is satisfied that the dispute about possession is likely to result the dispute in a breach of the peace. to prevent anything like that happening he could attach the property and place it in the hands of a receiver. passed against him, but then he went to the appropriate civil court and filed a suit and obtained an order for the appointment of a receiver, it would be perfectly futile for the magistrate to go on..........order in the instant case under sub-section (1) of section 145, criminal p. c., placing the disputed property under attachment pending the dispute and appointing the village officer, ettumanoor, in charge of the properties as the agent of the court below. the suits filed by the petitioners in respect of the same property in o. section 214/69 and o. section 215/69 are pending trial at the munsiff's court, kottayam. it is admitted that these suits have been filed even some time prior to the proceedings under section 145 had been taken up by the lower court. however, the petitioners did not get either an order of interim injunction or any order appointing a receiver in respect of the property through the munsiff's. court, though the suits are one for declaration, as well as for a.....
Judgment:
ORDER

E.K. Moidu, J.

1. The short point that arises for determination in this petition is whether an Executive First Class Magistrate proceeding with an enquiry under Section 145, Criminal P. C., in respect of an immovable property is bound to cancel the interim order passed under Sub-section (1) of Section 145 or to stay the proceedings thereof and forward the records of the proceedings to a Civil Court of competent jurisdiction, to decide the question whether any or which of the parties was in possession of the subject-matter of the dispute it one of the parties to the proceedings filed a suit in such Civil Court in respect of the same subject-matter.

2. The respondents herein are the complainants before the Executive First Class Magistrate and the petitioners are the opposite party. There was an interim order in the instant case under Sub-section (1) of Section 145, Criminal P. C., placing the disputed property under attachment pending the dispute and appointing the Village Officer, Ettumanoor, in charge of the properties as the agent of the Court below. The suits filed by the petitioners in respect of the same property in O. Section 214/69 and O. Section 215/69 are pending trial at the Munsiff's Court, Kottayam. It is admitted that these suits have been filed even some time prior to the proceedings under Section 145 had been taken up by the lower Court. However, the petitioners did not get either an order of interim injunction or any order appointing a receiver in respect of the property through the Munsiff's. Court, though the suits are one for declaration, as well as for a permanent injunction restraining the respondents herein from entering upon the property.

3. The contention of the learned Counsel of the petitioners is that once the Executive First Class Magistrate took action under Section 145(1), Criminal P. C., followed up by an attachment of the property by placing it in the hands of a Receiver under Sub-section (4) of Section 145, Criminal P. C., the hands of the Magistrate are tied if a suit is filed in respect of the same subject-matter and, therefore, he is bound to follow the provisions of Sub-section (5) of Section 145, Criminal P. C. The Sub-section (5) reads as follows : --

Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.

4. There is a long line of cases in the High Court of Rajasthan to the effect that when a dispute about certain immovable property is pending before a civil Court and one of the parties thereto moves a Magistrate to take proceedings under Section 145, Criminal P. C., about the same immovable property, the Magistrate in a suitable case can proceed under Section 145 Criminal P. C. This is the purport of the decision reported in Tikuda v. State wherein it is observed that the jurisdiction of the Magistrate to proceed under Section 145 is not ousted simply because a suit upon the same immovable property is pending in a civil or revenue Court. Again in Chairman, Municipal Board, Bhadra v. State ILR (1961) 11 Raj 1180, it was pointed out that there was nothing to prevent the Magistrate from taking action under Section 145, Criminal P. C. even where a civil case was pending between the parties in respect of the same subject matter. However, an opposite view had been taken in Malkappa v. Padmanna AIR 1959 Mys 122 in which it was held that the provisions of Section 145, Criminal P. C. should not be invoked when civil litigation with identical property was actually pending, More or less in the same way, in Multani v. Shah Abdu Turab Qadari 1962 (2) Cri LJ 709 (Mys), it was held that interim injunction granted by a civil court should be respected by a criminal court. In view of the conflicting decisions I am of the opinion that the view adopted by Rajasthan High Court is based on a more reasonable ground than the decisions of other High Courts. It is the duty of the Magistrate to take preventive action if the direction under Section 145, Criminal P. C., is not effective in any particular case. Ordinarily whenever there is dispute involving rights of parties leading to a breach of peace, there is nothing to prevent the Magistrate from taking recourse to Section 145, Criminal P. C, in a suitable case even when a civil suit is pending between the rival parties in respect of the same subject- matter. That is the view which was again reiterated by Rajasthan High Court in Sajjan Singh v. Sajjan Singh ,

5. Section 145 proceedings are of a summary nature the object of it being to preserve law and order with the right of the aggrieved party to remedy their grievance in a civil court. It is to prevent a breach of peace that action is taken under Section 145 by the Magistrates having jurisdiction over the area. The object of this section is explained in paragraph 8 of the decision reported in R. H. Bhutani v. Mani J. Desai : 1969CriLJ13 . It is as follows:

The object of Section 145, no doubt is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court. The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order under Sub-section (1) and thereafter to make an enquiry under Sub-section (6). It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under Section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.

6. The object being as above, the question whether the Magistrate is bound to stay the proceedings or to cancel the order or to send the records in the case to a civil court on the simple ground that there is a civil litigation pending in such a court in respect of a dispute involving the rights of the parties over the same property did not depend upon the ultimate result of the civil court, but it depended upon the immediate necessity for avoidance of a breach of peace involved in the case. I have already stated that a mere filing of the suit by itself is no reason for the Magistrate to stay the proceedings. But, if the Munsiff had appointed a Receiver in respect of the said property involved in the suit or had issued any order restraining the defendant from disturbing the plaintiff's possession thereof after finding that the later case of possession was prima facie true, the Magistrate could have taken his stand under Section 145(5), Criminal P. C. The Travancore-Cochin High Court fell in line with the Rajasthan High Court in holding that the progress of the proceeding under Section 145, Criminal P. C. cannot be curtailed by filing of a suit in a civil court on the same subject-matter. In Joshua Sankaran v. Verghese Jacob AIR 1955 Trav-Co 190 the reasoning of the court on those lines is given in the following passage,

If the civil Court has itself appointed a Receiver and taken possession of the property or has issued any order restraining the defendant from disturbing plain-tiff's possession, after finding that the latter's case of possession is prima facie true, the Magistrate should stay his hands. But where no Receiver has been appointed by the civil Court and the plaintiff's case of possession is only pending investigation and decision by that Court, the Magistrate cannot keep quiet if he is satisfied that the dispute about possession is likely to result the dispute in a breach of the peace. To prevent anything like that happening he could attach the property and place it in the hands of a Receiver.

7. In another decision reported in Amritlal N. Shah v. Nageswara Rao AIR 1947 Mad 133 at page 134 Kuppuswamy Iyer, J. stated as follows:

This is not a case in which matters should have to be dropped by reason of S 145 (5). It is only if there has been a subsequent settlement or if the petitioner agreed to give up the leasehold right and not claim to get back possession of the property, action can be taken under Section 145(5). Merely because there has been no further violence, it could not be said that there cannot be a breach of the peace and proceedings should be dropped.

8. Though this decision was not approved in In re, Sambasiva Rao : AIR1954Mad1017 , Balakrishna Iyer, J. was of the opinion that in case of a party after getting a preliminary order under Section 145(1), Criminal P. C. passed against him, but then he went to the appropriate civil Court and filed a suit and obtained an order for the appointment of a Receiver, it would be perfectly futile for the Magistrate to go on with his enquiry and, in fact, if he did so, it would result a conflict between his order and that of the civil Court. In such cases, the learned Judge was of the opinion that in view of the provisions of Sub-section (5) of S 145, Criminal P. C. it was unnecessary for the Magistrate to proceed with the enquiry as, according to the learned Judge, no such dispute was to exist within the meaning of Sub-section (5) in which case the Magistrate was either to cancel the order or the proceedings be stayed. But, nowhere in Section 145, Criminal P. C., it is stated that the proceedings shall be sent to a civil Court even if the contingency mentioned in Section 145(5) is established. Under that section, the Magistrate is bound to send the proceeding to a civil Court only if he is of the opinion that none of the parties was in possession or he is unable to decide as to which of them was in possession of the subject-matter of the dispute. The Magistrate in the instant case did not yet make a final enquiry to come to any such conclusion. In this case the petitioners also did not get any order either by way of interim injunction or any order appointing the Receiver at the civil Court, though suits were said to be pending for permanent injunction. In the absence of any order in the above lines, the hands of the Magistrate are not tied in proceeding with the enquiry under Sub-section (4) or (6) of Section 145, Criminal P. C. and come to an independent conclusion by himself on the sole ground that suits have been filed in civil Court in respect of the property involved in the proceeding.

9. In the proceedings before the lower Court it was seen that there had been substantial disputes between the parties. The petitioners had been worsted in a criminal Court resulting in conviction against them under Sections 148 and 447, Penal Code in respect of the same property. If there was apprehension of breach of peace, the Magistrate is bound to proceed with the enquiry and pass appropriate orders. It cannot, therefore, be said that no dispute existed either at the time of the filing of the petition or at any time thereafter. The interim appointment of a Receiver by the Magistrate's Court by itself is not indication that there had been a cessation of apprehension of breach of peace, If we take away the proceedings from the file of the Magistrate and hand it over to the civil Court pending enquiry under Section 145, Criminal P. C, it would affect the maintenance of breach of peace which is the sole aim of Magistrate taking action under Section 145, Criminal P. C. It would be open to the petitioners at any time to produce an order from the civil Court either restraining the respondents from entering upon the property or getting an order passed in their favour appointing a receiver in respect of the property involved in the dispute. In the absence of any such order, I think it is competent for the Executive First Class Magistrate to proceed with the enquiry. I am, therefore, of the opinion that the refusal of the stay passed by the Magistrate in the circumstances of the case is competent and no interference is called for by this Court in revision.

10. In the result, the revision petition is dismissed.


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