Criminal Appeal No.604 of 2001

28th January, 2005

Petitioner Counsel: Mr. M. R. KALAR
Respondent Counsel: Mr. MASOOD SHAREEF,Mr. DEEPAK THAKRE

Cases Cited:
Jhunamal alias Devandas Vs. State of Madhya Pradesh, AIR 1988 SC 1973 [Para 3]
Ram Sumer Puri Mahant Vs. State of U. P., AIR 1985 SC 472 : 1985 Cri.L.J.762 : (1985)1 SCC 427 [Para 3,5,6]
Vijaykumar Wadera Vs. State of Maharashtra, 2003 ALL MR (Cri) 280=2003(1) Mh.L.J. 952 [Para 4]
Amresh Tiwari Vs. Lalta Prasad Dubey, 2000 Cri.L.J. 2226 [Para 5,6]

JUDGMENT

JUDGMENT :- By invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioners have sought the relief for quashing and setting aside the judgment and order dated 21-11-2000 passed by the learned 5th Additional Sessions Judge in Criminal Revision Appln. No.1162/99, whereby the Revision has been allowed and the proceedings started under Section 145 of the Code of Criminal Procedure by the Sub-Divisional Magistrate bearing Criminal Case No.108 of 1998 were quashed.

2. Brief facts are as under :

It is not in dispute that the subject matter of the dispute is a house bearing No.W/48-49, block No.27, situated at Sheet No.4 at Kamptee. It is also not in dispute that Masood Subhani is the owner of this house. The petitioners are the tenants in the said house. The original owner had entered into an agreement of sale on 18-1-1997 in favour of the mother of petitioner no.1 - Mohammad Haroon. It is contended by the petitioners tenants that they have been forcibly dispossessed by the respondents no.1 and 2 on 8-10-1998 and, therefore, they had filed a report at police station Kamptee on 11-10-1998. There after the proceedings under Section 145 of the Code of Criminal Procedure were started before the Sub-Divisional Magistrate who passed preliminary order on 13-10-1998 and rejected the application filed by the respondents for dismissal of the proceedings. The respondents being aggrieved by the order passed by the Sub-Divisional Magistrate carried Revision before the learned Sessions Judge, which is numbered as Crim. Revision 1162/99. The learned Sessions Judge on examination of the material available and considering the law position allowed the revision and set aside the impugned order dated 11-11-1999 passed by the Sub-Divisional Magistrate in Cri. Case No.108/98 and quashed the proceedings under Section 145 of the Code of Criminal Procedure. This order is challenged in this application.

3. Mr. Kalar, learned counsel, for the tenants contended that they had instituted Reg. Civil Suit No.1404/98 in the Civil Court for declaration of title and perpetual injunction on 9-10-1998. He contended that the tenants had to withdraw that suit with liberty to file fresh suit and thereafter fresh suit bearing Reg. Civil Suit No.143 of 1999 for possession and damages has been filed in the Civil Court. He contended that simply because the civil litigation has been filed by the tenants, it did not follow that the preliminary order passed by the Sub-Divisional Magistrate on 13-10-1998 in favour of the tenants is liable to be quashed and set aside. He contended that the Sub Divisional Magistrate was perfectly justified in dismissing the application filed by the respondents and consequence of the same was that the proceedings continued under Section 145 of the Code of Criminal Procedure. He contended that simply because the dispute between the parties is pending before the Civil Court for adjudication, there is no reason as to why the proceedings under Section 145 of the Code of Criminal Procedure should not continue. In support of these submissions, he relied on the decision of Supreme Court in the case of Jhunamal alias Devandas Vs. State of Madhya Pradesh, AIR 1988 SC 1973 wherein it has been observed that "It will be obvious from the order of the High Court that the decision of this Court in Ram Sumer's case (AIR 1985 SC 472) has been totally misunderstood and injunction in respect of certain property was instituted before the civil Court. The suit was dismissed on February 28, 1981. The matter was taken up in appeal. When the appeal was pending for disposal, proceedings under S.145, Cr.P.C., were initiated with regard to the same property. In that proceedings, the Magistrate passed a preliminary order under S.145(1) of the Cr.P.C. and also attached the property. The aggrieved party challenged that order in a revision petition before the Allahabad High Court. The High Court also refused to interfere with that order. But this Court quashed the proceedings under S.145 Cr.P.C. observing :

"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 and the order of the learned Magistrate should be quashed."

4. Mr. Kalar, learned counsel, also relied on the decision of this Court in Vijaykumar Wadera Vs. State of Maharashtra - 2003(1) Mh.L.J. 952 : 2003 ALL MR (Cri) 280, wherein it was held that "merely because the complainants have resorted to the remedy of filing an injunction suit and had failed to obtain an injunction, it did not mean that they are not entitled to get any relief under section 133 read with section 138 Criminal Procedure Code. The remedy provided by section 133 is a separate speedy remedy and the same is available to the aggrieved party despite availing civil remedy."

5. Mr. Masood Sharif, learned counsel, for respondent 1 and 2 contended that since the dispute between the parties is pending adjudication in the civil Court and because the tenants have resorted to the remedy by filing application for temporary injunction in the civil Court, the factum of possession is under consideration of the civil Court. He further contended that the tenants instead of pursuing their remedy in the civil Court withdrew the said Reg. Civil Suit No.1404/98 on 28-4-1999 with liberty to file a fresh suit and thereafter they have again instituted a fresh suit being Reg. Civil Suit No.143 of 1999 for possession and damages. He further contented that the first suit was instituted on 9-10-1998 and thereafter the proceedings under S.145 of Cr.P.C. were started upon receiving the complaint from the tenants and, therefore, the impugned order passed by the learned 5th Additional Sessions Judge was perfectly legal and correct. In support of these submissions he relied upon the decision of Supreme Court in the case of Amresh Tiwari Vs. Lalta Prasad Dubey - 2000 Cri.L.J. 2226, wherein the Apex Court has considered its earlier decision in Ram Sumer Puri Mahant Vs. State of U. P., AIR 1985 SC 472 : 1985 Cri.L.J.762 : (1985)1 SCC 427.

6. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. The factual position is not in dispute. The petitioners are the tenants and they are said to have been dispossessed by the respondents on 18-1-1997 and therefore the petitioners had filed a complaint-cum-FIR at police station Kamptee on 11-10-1998 on the basis of which proceedings under Section 145 of Cr P.C. started. It appears that the respondents had filed an application before the Sub-Divisional Magistrate for dismissal of those proceedings, but that application was rejected by the Sub-Divisional Magistrate on 11-11-1999. It is also not in dispute that the petitioners/tenants had filed Civil Suit No.1404/98 on 9-10-1998 and, therefore, it is obvious that the proceedings under S.145 have been started before the complaint in that context was lodged at the police station. Be that as it may, one thing is certain that the petitioners/tenants want to prosecute their remedy before two different forums, i.e. One before the Sub-Divisional Magistrate and the second before the competent Civil Court. In this context, the learned counsel for the respondents rightly relied on the larger Bench decision of the apex Court in the case of Amresh Tiwari - 2000 Cri.L.J. 2226, cited supra, wherein it has been observed in paragraph Nos.12, 13 and 14 as under :

"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 the Court in the case of Ram Sumer Puri Mahant Vs. State of U.P., reported in (1985)1 SCC 427 : (AIR 1985 SC 472 : 1985 Cri.L.J. 752). 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 proceedings 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 Sumer's case (AIR 1985 SC 742 : 1985 Cri.L.J. 752) would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer's 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 Vs. State of Madhya Pradesh reported in (1988)4 SCC 452 : (AIR 1988 SC 1973 : 1989 Cri.L.J. 82). 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 Sumer's case (AIR 1985 SC 472 : 1985 Cri.L.J. 752) (supra) is fully applied. 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."

7. Thus, in view of the verdict of the Supreme Court, it is clear that the ratio laid down by the Apex Court in Ram Sumer's case, cited supra, would be squarely applicable to the present case in which a civil suit is filed and Section 145 proceedings would not lie. It is only in cases where civil suit is for possession and declaration of the title in respect of the same title and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that the proceedings under Section 145 should not be allowed to continue and 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. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation and, therefore, this Court is fully satisfied that parallel proceedings should not continue. Therefore, in the present case, it would clearly reveal that it is only the competent civil court which can go into the question of title as well as possession and continuation of proceedings under Section 145 would not only be a futile exercise but the Sub-Divisional Magistrate even cannot go into the question of possession unless that has been finally adjudicated by the competent civil court. In such a situation, the impugned judgment and order is not liable to be interfered with and consequently this application/petition is dismissed.

Appeal dismissed.