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Abdul Sattar and anr. Vs. Jankivallabh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 308 of 1958
Judge
Reported inAIR1961Raj245; 1961CriLJ693
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 146 and 146(1); Code of Civil Procedure (CPC) - Sections 6 and 141
AppellantAbdul Sattar and anr.
RespondentJankivallabh and anr.
Appellant Advocate Abdul Jalil, Adv.
Respondent Advocate Roshanlal, Adv.
DispositionRevision dismissed
Cases ReferredSheonath Prasad v. City Magistrate
Excerpt:
.....the claims of any of the contending parties but only with reference to their right to possess the subject-matter of 'dispute with regard to a point of time namely, the date of the preliminary order. 6. in the first class of cases sub-section (6) of section 145 clearly provides that the magistrate shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until eviction, and where it becomes necessary to do so shall restore to possession the party forcibly and wrongfully dispossessed. the other matter to which it is necessary to draw attention is that under sub-section (5) of section 145, it is open to a magistrae to cancel the preliminary order and drop the proceedings..........suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.the contention of learned counsel is that as a result of the combined force of all the provisions referred to above, 'a civil court of competent jurisdiction within the meaning of section 146, cri. p. c. would and should be the court which has not merely the territorial competence to take cognizance of the matter but which is also competent so to do from the viewpoint of its pecuniary jurisdiction,5. the aforesaid argument looks somewhat attractive on the face of it ; but on a very careful and close consideration of the whole matter, i find myself unable to accede to it. i have come to the conclusion to which i have mainly as a result of the policy and the object.....
Judgment:
ORDER

I.N. Modi, J.

1. This is a revision by the petitioners Abdul Sattar and Abdul Rehman against an order of the Munsiff City Jodhpur dated the 15th September, 19,58, in a proceeding under Section 146 of the Code of Criminal Procedure, which raises an interesting question as to the interpretation of the words 'a Civil Court of competent jurisdiction' occurring in that section:

2. Only a few facts need be mentioned to bring out the controversy which has arisen in this case. The petitioners here instituted an application under Section 145, Cri. P. C. against the opposite parties with respect to a certain plot of open land lying outside the Siwanchi gate in the city of Jodhpur. This application was filed in the court of the City Magistrate Jodhpur (No. 1). As the learned Magistrate did not find himself in a Position to decade as to which of the contending parties was in possession of the land in dispute at the date of the preliminary order, he referred the question of possession for determination to the Munsiff, Jodhpur City, under Sub-section (1) of Section 146.

It appears that after some evidence was recorded before the Munsiff, an objection was raised before him that as the valuation, of the land was more than the pecuniary jurisdiction of the Munsiff, which is admittedly limited to a sum of Rs. 2000/-, his was not the court of competent jurisdiction to decide the question of possession raised in this case. The learned Munsiff by his order dated 15th September. 1958, repelled this objection and held that the word 'jurisdiction' as used in the phrase 'a Civil Court of competent jurisdiction' was used in the sense of territorial jurisdiction only. Aggrieved by this order, the petitioners have come up in the present revision.

3. It is in these circumstances that the question of the proper interpretation of the phrase 'a Civil Court of competent jurisdiction' as used in Section 146(1) Cri. P. C. arises in this case.

4. It is strenuously contended by learned counsel for the petitioners that only that civil court should be considered to be a court of competent jurisdiction which would have not merely the territorial jurisdiction to decide the matter of possession but which would also have the requisite pecuniary jurisdiction to do so. It was further contended in the same connection that the land which was the subject-matter of dispute in these proceedings measured over a lac of square feet and that its value was far beyond Rs. 2000/- which was the maximum limit of the pecuniary jurisdiction of the Munsiff's court.

Reference was also made in this connection to Section 8 of the Code of Civil Procedure which provides that save in so far as otherwise expressly provided, nothing contained in the Code shall operate to give any court jurisdiction over the suit the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. Learned counsel also places reliance on section 141 of the Code of Civil Procedure which lays down that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.

The contention of learned counsel is that as a result of the combined force of all the provisions referred to above, 'a Civil Court of competent jurisdiction within the meaning of Section 146, Cri. P. C. would and should be the court which has not merely the territorial competence to take cognizance of the matter but which is also competent so to do from the viewpoint of its pecuniary jurisdiction,

5. The aforesaid argument looks somewhat attractive on the face of it ; but on a very careful and close consideration of the whole matter, I find myself unable to accede to it. I have come to the conclusion to which I have mainly as a result of the policy and the object underlying the provisions contained in Section 145 Cr. P. C. and the nature of the proceeding referred to the civil court under Section 146.

The law is indeed well-settled, and it has been stated plainly in many a case of this Court, that the object behind Section 145 of the Code of Criminal Procedure is to put a quietus to disputes relating to land or water or the boundaries thereof where they are likely to cause a breach of the peace as speedily as possible, and it is with this object in view that the criminal courts have been invested with jurisdiction to decide questions relating to possession without reference to the merits of the claims of any of the contending parties but only with reference to their right to possess the subject-matter of 'dispute with regard to a point of time namely, the date of the preliminary order. Two classes of cases may arise.

The first where it is possible for the Magistrate to arrive at a definite finding as to which of the parties was in possession at the date of the preliminary order or within two months from the date thereof, as the case may be. The second class of cases arises where it is not possible for the Magistrate on the material before him to arrive at any definite finding as to such possession, or he comes to the conclusion that none of them was in possession at the relevant point of time.

6. In the first class of cases Sub-section (6) of Section 145 clearly provides that the Magistrate shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until eviction, and where it becomes necessary to do so shall restore to possession the party forcibly and wrongfully dispossessed.

In this class of cases it is for the party aggrieved by such an order to go to a civil court and obtain redress if he chooses to do so. It is in the other class of cases, that is, where the Magistrate comes to the conclusion that none of the parties was in possession at the relevant time, or that he is unable to decide as to which of them was in such possession of the subject-matter in dispute that Section 146 Cr. P. C. comes into play.

This section provides that in such cases, the Magistrate may attach the property in dispute and draw up a statement of facts of the case and forward the record of the proceeding to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at die date of the order within the meaning of Sub-section (4) of Section 145.

It is further provided that, having received the reference, the civil court must peruse the evidence on record and take such further evidence as may be produced by the rival parties, consider the effect of the entire material before it and after hearing the parties decide the question of possession. It is important to draw attention to two further provisions in this connection.

The first is that according to Sub-section (4) of Section 145, the Magistrate is enjoined to decide the question of possession as far as may be practicable within a period of two months from the date of the appearance of the parties before him, and similarly under Sub-section (1B) of Section 146, the civil court has been enjoined to conclude the enquiry and transmit its finding to the Magistrate by whom the reference has been made, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it, and it is then for the Magistrate to dispose of proceedings under Section 145 in conformity with the decision of the civil court.

The other matter to which it is necessary to draw attention is that under Sub-section (5) of Section 145, it is open to a Magistrae to cancel the preliminary order and drop the proceedings where he may be later satisfied that no dispute within the meaning of Section 145 (1) still exists, and he may in such a case remove the attachment which he might have ordered, and, similarly, under the provise to Sub-section (1) of Section 146, even where a reference has been made to a civil court, it is open to a District Magistrate or to a Magistrate who has attached the property in dispute to withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace with respect to the subject-matter in dispute.

7. It clearly emerges from a discussion of the aforesaid provisions that where a proceeding under Section 145 is referred to a civil court, it is not the whole case that is referred to it but the reference is with respect to a limited matter, namely, the question of possession within the meaning of subsection (4) of Section 145, and it is to that question alone that the civil court must address itself.

It is also manifest that the criminal court still retains its jurisdiction over the case or the subject-matter of dispute inasmuch as it is open to it to withdraw the attachment or cancel the proceeding in case it is satisfied that there is no longer any apprehension of a breach of the peace with respect to the subject-matter which was in dispute before it. It is also important to bear in mind, for our present purposes, that no stage in the enquiry before the criminal court, the question of the valuation of the subject-matter in dispute ever arises or has any importance, and the criminal court called upon to exercise its jurisdiction under Section 145 is the court which has territorial jurisdiction over the subject-matter in dispute.

8. The only other thing which it is necessary to emphasize, even at the risk of some repetition, in this context is that it was the undoubted intention of the Legislature that such disputes should be decided with all despatch possible. It is against this background that, in my opinion, the expression 'a civil court of competent jurisdiction' as used in Sub-section (1) of Section 146 Cr. P. C. has to be interpreted.

I find it very difficult to accept that it was ever within the contemplation of the Legislature that before a reference is made to a civil court under Section 146 (1) Cr. P. C. the criminal court should bear in mind or take into consideration that the court to which it sends the case is not only the court which has territorial jurisdiction over the subject-matter of dispute but is also the court which will have the pecuniary jurisdiction to deal with the matter having regard to the limits set upon its jurisdiction under the relevant civil law.

I say so, firstly, because there is hardly any material in the normal course of things before a criminal court as to what is the monetary value of the property which is in dispute before it, and it cannot also be forgotten in this connection that no machinery has been provided under the Code to determine such value once a dispute is raised as respects it.

In the second place, it seems to me that it is hardly practicable to put any value in terms of money with respect to the limited question of possession which is referred to the civil court, and let it be remembered that after all the nature of the entire proceeding either under Section 145 or under Section 146 is at best a summary one, and it would be open to a party which is aggrieved by any final order eventually passed by a criminal court to got to a competent civil court and get an authoritative decision as to title with respect to the subject-matter in dispute.

Again, the question of the proper value to be put on the subject-matter in dispute, whether it is raised before the criminal court or before the civil court to which the case may have been referred, is bound to occasion a protracted enquiry in most cases, and, if that be so, I have no hesitation in saying that the object of the Legislature to have such disputes decided with the outmost expedition possible as evidenced by the various provisions to which I have already drawn attention above would be very largely frustrated if not defeated altogether.

I should also like to mention in this connection that the real nature of a proceeding under Section 145 is a summary one, and it never partakes of the character of a suit or a proceeding in the nature thereof at any stage of it including the stage where the matter is referred to a civil court under Section 146 (1) and it, therefore, being a matter within the special jurisdiction of the criminal courts, the word 'jurisdiction' as used in the expression 'a civil court of competent jurisdiction' should be interpreted in the general sense in which that word has been used tin the Code of Criminal Procedure.

The quantitative value of the subject-matter of a dispute under Section 145 or of the subject-matter of an offence is never the proper eriterion for assumption of jurisdiction by a court under the Code of Criminal Procedure, and it may be said without fear of contradiction that the word 'jurisdiction' has been broadly speaking used in the Code in the sense of territorial jurisdiction only. I am of opinion, therefore, that the expression 'jurisdiction' in connection with the civil court, in the context in which it has been employed, properly means jurisdiction in the territorial sense and not in any other sense.

9. It only remains for me to say that Section 6 and Section 141 C. P. C. are of no relevance in the proper interpretation to be put on the phrase 'a Civil Court of competent jurisdiction' as used in Section 146 Cri. P. C. Section 6 clearly applies to a suit and I have no hesitation in saying that the matter which is referred under Section 146 Cr. P. C. is not a suit in any sense of the word.

So also in my opinion, it is not a proceeding within the meaning of Section 141 of the Code of Civil Procedure, for there is authority for the proposition that Section 141 is meant to include original matters in the nature of suits, viz., matters which originate themselves and not those which spring up from a suit or some other proceeding or arising in connection therewith. See in this connection Sarat Krishna Bose v. Bisweswar Mitra, AIR 1927 Cal 534 and Thakur Parshad v. Sheikh Fakir-Ullah, 22 Ind App 44 (PC).

10. As a result of the discussion made above, the conclusion, therefore, to which I come is that the word 'jurisdiction' with reference to the competent civil court as used in Section 146(1) Cr. P. C. has to be interpreted only with reference to the territorial jurisdiction of the civil court to which the matter has been referred bv the criminal court, and that the pecuniary jurisdiction of the civil court to which the matter may have been so referred does not matter. It may be that there may be a number of competent civil courts to whom the matter may be referred by the Magistrate.

The general principle which may well be invoked in this connection is that the courts of higher jurisdiction should not be burdened with matters which may be disposed of by courts of lower jurisdiction, and on that principle, the correct position for the referring Magistrate would be to send the proceeding under Section 146 (1) Cr. P. C. to the civil court of the lowest grade having territorial jurisdiction over the subject-matter in dispute. I am fully supported in the view which I have felt persuaded to accept on the principal question arising in the revision by a decision of the Patna High Court in Bodh Narain v. Deo Narain, AIR 1958 Pat 308 and of the Allahabad High Court in Sheonath Prasad v. City Magistrate, Varanasi, AIR 1959 All 467.

11. The result is that this revision fails and must be dismissed. Having regard, however, to the circumstance that the question raised herein is of importance and is not covered by any authority of this Court, I would leave both parties to bear their own costs in this Court.

12. Let the record of this case be sent immediately to the Munsiff, Jodhpur City, who will answer the question referred to him by the Magistrate in accordance with law with all reasonable despatch. The parties are hereby directed to appear before the Munsiff on the 2nd February, 1960.


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