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Jinabhai Ambaram Surti Vs. the State and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR559
AppellantJinabhai Ambaram Surti
RespondentThe State and anr.
Cases ReferredDharamdas v. Stage
Excerpt:
.....deciding whether a criminal complaint should be stayed pending the hearing and final disposal of a civil suit are now well settled and do not need any reiteration. if the petitioner is convicted of the offence charged against him in the criminal complaint and if notwithstanding such conviction the petitioner fails to remove the construction which according to the decision resulting in such conviction would have been done in contravention of rule 6(1) of chapter xii of the schedule the petitioner would be liable to be punished with fine for each day that such failure to remove the construction continues. though the civil court may hold that the petitioner is not liable to remove the construction the non-removal of the construction-held perfectly legitimate by the civil court- would render..........refusing to stay the hearing of the complaint before him pending the hearing and final disposal of civil suit no. 1965 of 1961 pending in the city court ahmedabad. the petitioner constructed a bath-room on the otla of his house situate in khadia ward no. 1 in the city of ahmedabad. according to the municipal corporation the construction was covered by section 254 of the bombay provincial municipal corporations act 1949 and the petitioner was not entitled to make the same without giving the requisite notice to the municipal commissioner under rule 6(1) of chapter xii of the schedule to the act. no such notice was however given by the petitioner to the municipal commissioner before carrying out the construction. since the construction was according to the municipal corporation carried out.....
Judgment:

P.N. Bhagwati, J.

1. This is an application to revise an order passed by the Special Magistrate (Municipal) First Court Ahmedabad refusing to stay the hearing of the complaint before him pending the hearing and final disposal of Civil Suit No. 1965 of 1961 pending in the City Court Ahmedabad. The petitioner constructed a bath-room on the Otla of his house situate in Khadia Ward No. 1 in the City of Ahmedabad. According to the Municipal Corporation the construction was covered by Section 254 of the Bombay Provincial Municipal Corporations Act 1949 and the petitioner was not entitled to make the same without giving the requisite notice to the Municipal Commissioner under Rule 6(1) of Chapter XII of the Schedule to the Act. No such notice was however given by the petitioner to the Municipal Commissioner before carrying out the construction. Since the construction was according to the Municipal Corporation carried out contrary to the provisions of Rule 6(1) of Chapter XII of the Schedule to the Act the Municipal Commissioner adopted proceedings against the petitioner under Section 260 and the proceedings ultimately culminated in an order dated 25th March 1961 whereby the Deputy Municipal Commissioner ordered demolition of the construction under Section 260. The petitioner thereupon immediately filed a suit in the Court of the Civil Judge Senior Division Ahmedabad for an injunction to restrain the Municipal Corporation from demolishing the construction or getting the same demolished in any manner whatsoever and from disturbing the petitioner in the enjoyment of the construction. It may be mentioned at this stage that one of the points of dispute between the petitioner and the Municipal Corporation was whether the land on which the construction was made by the petitioner fell within the road-line. The petitioner therefore claimed a declaration in the suit that the construction put up by the petitioner was on land of his own ownership and that the roadline alleged by the Municipal Corporation was unenforceable and unlawful. Since the suit was filed without giving notice to the Municipal Corporation as required under the Act the petitioner applied for withdrawal of the suit under Order 23 Rule I of the Code of Civil Procedure with liberty to institute a fresh suit on the same cause of action and such leave was granted by the Court. The petitioner had in the meantime given the requisite notice to the Municipal Corporation and the petitioner therefore immediately on withdrawal of the previous suit filed a fresh suit in the Court of the Civil Judge Senior Division Ahmedabad and on an application for interim injunction the Municipal Corporation agreed not to demolish the construction pending the hearing and final disposal of the suit. This fresh suit was filed by the petitioner against the Municipal Corporation on 5th May 1961. The Municipal Corporation thereafter filed a complaint against the petitioner before the Special Magistrate (Municipal) First Court Ahmedabad on 15th May 1961 charging the petitioner for the offence under Rule l(a) of Chapter XX of the Schedule read with Rule 6(1) of Chapter XII of the Schedule on the allegation that the petitioner had made a construction of the nature described in Section 254 without giving the requisite notice to the Municipal Commissioner. The petitioner thereupon applied to the learned Magistrate to stay the hearing of the complaint till the disposal of the suit filed by the petitioner against the Municipal Corporation but the learned Magistrate refused to stay the hearing of the complaint. The petitioner thereupon preferred the present Revision Application in this Court.

The principles which must guide the Court in deciding whether a Criminal complaint should be stayed pending the hearing and final disposal of a civil suit are now well settled and do not need any reiteration. The main consideration which must weigh with the Court in all such cases is whether the simultaneous prosecution of the criminal complaint and the civil suit will embarrass the' accused. No hard and fast rule can be laid down in such matters for the facts and circumstances of each case must be considered and the question of stay must be determined in the light of what appears to the Court to be just in a given case. If it appears to the Court on the facts and circumstances of a particular case that the accused will be embarrassed as a result of the simultaneous prosecution of the criminal complaint and the civil suit and that it is just that the criminal complaint should be stayed pending the disposal of the civil suit the Court will certainly exercise its discretion in favour of staying the criminal complaint.

2. Now in the present case it could not be disputed that the criminal complaint arises out of the same facts as the civil suit and the question on the determination of which would depend the fate of the criminal complaint is also directly involved in the civil suit. It is in these circumstances that 1 have to determine whether the criminal complaint should be stayed during the pendency of the civil suit. There are in my opinion three main considerations which must weigh with the Court in coming to the conclusion that the criminal complaint should be stayed pending the hearing and final disposal of the civil suit. The first is that the civil suit is prior in point of time to the criminal complaint. The civil suit was originally filed by the petitioner on 22nd March 1961 whereas the criminal complaint was instituted by the Municipal Corporation almost two months after the filing of the civil suit. This is of course not a circumstance which standing by itself would have much cogency or relevance to induce the Court to stay the hearing of the criminal complaint pending the disposal of the civil suit. But it is certainly a circumstance which cumulatively with the other circumstances must guide the Court in determining this question in favour of the petitioner. The second consideration proceeds from the provision enacted in Rule 2 of Chapter XX of the Schedule. If the petitioner is convicted of the offence charged against him in the criminal complaint and if notwithstanding such conviction the petitioner fails to remove the construction which according to the decision resulting in such conviction would have been done in contravention of Rule 6(1) of Chapter XII of the Schedule the petitioner would be liable to be punished with fine for each day that such failure to remove the construction continues. The result would be that though the question is pending in the civil Court whether the petitioner in putting up the construction acted in contravention of the provisions of Rule 6(1) of Chapter XII of the Schedule and though the civil Court may ultimately find that the petitioner did not commit any such contravention and was therefore not liable to remove the construction the petitioner would render himself liable to criminal prosecution for each day that he fails to remove the construction under Rule 2 of Chapter XX of the Schedule. Though the civil Court may hold that the petitioner is not liable to remove the construction the non-removal of the construction-held perfectly legitimate by the civil Court- would render the petitioner liable to be proceeded against criminally every day during which the construction remains unremoved. This would lead to a highly anomalous situation. The third consideration which weighs with he is that under the Bombay Provincial Municipal Corporations Act 1949 in case of contravention of the provisions of Rule 6(1) of Chapter XII of the Schedule the Municipal Commissioner has two remedies available to him; one remedy is to proceed by way of action under Section 260 and the other remedy is to institute a criminal complaint under Rule 1 of Chapter XX of the Schedule. The Municipal Commissioner in the present case adopted the first remedy and action was taken against the petitioner under Section 260 which action is now being challenged in the civil suit. The Municipal Commissioner also adopted the second remedy and that is the present criminal complaint which is sought to be stayed by this application. When the legality of the first remedy adopted by the Municipal Commissioner is being tested in the civil suit on the ground that the remedy is illplaced because there is no contravention of the provisions of Rule 6(1) of Chapter XII of the Schedule it is but just that the simultaneous prosecution of the second remedy founded on the same ground must be stayed. It is no doubt a well settled principle that a criminal complaint should not be stayed solely on the ground that some of the questions which arise for decision in the criminal complaint can be more appropriately tried by a civil Court. But as observed by Gajendragadkar J. in Dharamdas v. Stage : AIR1956Bom512 the principle that if a criminal complaint has been filed in the first instance and a civil suit later on the former cannot be stayed solely on the ground that some of the questions which arise for decision in a criminal complaint can be more appropriately tried by a civil Court cannot be applied to all cases where an accused person prays for stay of criminal proceedings. Pacts and circumstances in each case will have to be considered and the question of stay will have to be determined in the light of what appears to the Court to be just in any given case. These three circumstances clearly show that if the criminal complaint is allowed to proceed along with the civil suit considerable embarrassment will be caused to the petitioner. I am therefore of the opinion that this is a fit case in which the learned Magistrate should have exercised his discretion in favour of staying the hearing of criminal complaint pending the disposal of the civil suit.

3. Mr. S.B. Vakil however pointed out that if the criminal complaint is Stayed it may not reach hearing for a pretty long time because the hearing and final disposal of the civil suit may take considerable time. I think that if the civil suit is ordered to be heard expeditiously and liberty is reserved to the Municipal Corporation to move this Court for setting aside the stay of the criminal complaint in case the Municipal Corporation finds that the hearing of the civil suit does not proceed expeditiously owing to the non-helpful attitude of the petitioner this complaint of Mr. S.B. Vakil would be fully met. Having regard to the nature of the question involved it would in my opinion be a better way of resolving the dispute that the question is tried in the civil suit rather than in the criminal complaint.

4. Mr. S.B. Vakil also contended that the learned Magistrate having exercised his discretion against staying the criminal complaint I should not interfere with the exercise of discretion in revision. Ordinarily this Court would be slow to interfere with the exercise of discretion by the subordinate Court; but in a case like this where I find that the learned Magistrate has failed to take into account the relevant and material circumstances which should have weighed with him in the exercise of his discretion I think it would be against the interests of justice not to interfere with the exercise of discretion.

5. Under the circumstances I allow the Revision Application and stag the hearing of the Criminal complaint pending the hearing and final disposal of the civil suit by the City Court Ahmedabad. The civil suit shall be taken up for early hearing by the City Court and shall be disposed of as expeditiously as possible. Liberty is given to the Municipal Corporation in terms of this judgment.


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