2000 ALL SCR (Cri) 82


Allahabad High Court

Special Leave Petition (Crl.) 3858 of 1999

11th April, 2000

K.T. Thomas, J.

D.P. Mohapatra, J.

S.N. Variava, J.




Criminal P.C. (1973)

Section 482 Criminal P.C. (1973)

Section 145 Criminal P.C. (1973)

Section 145(1) Criminal P.C. (1973)

Breach of Peace, Civil Court, Civil Suit, Decree, Deed, Appointment, Interest, Magistrate, Pleadings, Police, Procedure, Sale, Sale Deed, State, Statement, Suit, Transfer, Written Statement

Paras 11, 13: Ram Sumer Puri Mahant Vs.State of U.P.& Ors., reported in 1985 (1) S.C.C. 427

JUDGMENT:- S. N. Variava, J. This appeal is against an Order dated 8th September, 1999.By this Order the High Court has, inexercise of powers under Section 482 of the Criminal Procedure Code, set asidean Order dt.9thJune 1999, passed bythe sub-divisional Magistrate. The SDM had dropped/discontinued the proceedings under Section 145 of the Criminal Procedure Code.

2. Briefly stated the facts are as follows :

Inrespect of the property concerned the 1st Respondent had adispute with Sharda Prasad and Shiv Kumar. The1st Respondent filed Civil Suit No.280 of 1990 in the Court of Civil Judge, Gyanpuron 10th October, 1990.It isnot deniedthat this Suit wasfor declaration of title, possession andfor injunction. On 10th October, 1990, itselfan application for ad interim Order was made. An Order to maintain status quo, as on that date, was passed by the Court.

3. According to the Appellant, on 10th October, 1990 itself the said Sharda Prasad and Shiv Kumar had executed aSale Deed in favour of Smt.Prem Kali, who was the mother of the Appellant.Accordingto the Appellant possession ofthe property was delivered to Smt.Prem Kali on the sameday. In Suit No. 280 of 1990, on an application made bySmt. Prem Kali, she was impleaded as a party defendant. In that Suit the pleadings are complete. Issues have been framed. The suit is pending trial.

4. While thisSuit was pending the S.O. Police Station, Aurai made areport to the S.D.M., Gyanpur statingthat there was a dispute regarding possession of land likely to cause a breach of peace within his jurisdiction andfor initiatingofproceeding underSection 145Criminal Procedure Code.On the basis of this report, the learned S.D.M.passedpreliminary Orderunder Section 145(1) Criminal Procedure Code. Pursuant to this preliminary Order theAppellant's mother appearedand filed a written statement stating that there was no dispute likely to cause breachof peace regarding possession of the said property. It waspointed out that the civil Suit was pending inthe courtof civil jurisdiction and an Orderdirecting maintenance of status quo had already been passed. The 1st Respondent also filed a written statement pursuant tothe preliminary Order.The 1st Respondent claimed thatthe property which formed the subject matter of the civilSuit was differentfrom the propertyin respect of which proceedings under Section 145 Criminal Procedure Codehad been adopted.

5. TheAppellant thereafter made an Application thatthe proceedings under Section 145 Criminal Procedure Code be droppedas a civil Suit in respect of the same property was pending.ThatApplication was rejected by the S.D.M. on 13thSeptember, 1991.Againstthe Orderdated13th September, 1991, a Criminal Revision was filed beforethe Additional Session Judge, Gyanpur.The said Criminal Revision was rejected by an Order dated 16th March, 1993. A ReviewApplication was also dismissed by the Additional SessionJudge on 11th May 1993. Thereafter the proceedings under Section145 Criminal Procedure Code were resumed. Statements of parties were recorded. In the course ofher statement the 1st Respondent, inter alia, stated as under :

"The Civil Suit which has been filed regarding this land which is Suit No. 280 of 1990. In respect of the disputed land which is the subject matter of the suit an orderfor maintain status-quo has been passed...... The Civil Suit, I have filed in the Civil Court is for dispossession of Amrit Lal and Prem Kali from the disputed land. This suithas been filed for obtaining stay order against Sharda Prasad."

6. Thus the 1st Respondent admitted that the civil Suit was in respect of this land i.e. the land in respect of which proceedings under Section 145 Criminal Procedure Codehad been adopted.The 1st Respondent also admits that the Suit is for possession and for stay. Very fairly it is conceded beforeus that the land in respect of which the proceedings under Section 145 Criminal Procedure Code was adoptedwere part of the properties in respect of which Suit No. 280 of 1990 had been filed.

7. After the statement of the parties had been recorded, an Application was made by the Appellant that theproceedings underSection 145 Criminal Procedure Codemay be discontinued/dropped in view of the pending civil Suit in which an order of maintenance of status quo had already been passed. By an Orderdated 9th June, 1999,the S.D.M. dropped the proceedings under Section 145 Criminal Procedure Code by concluding that there was no propriety in continuing the proceedings under Section 145 Criminal ProcedureCode when the civil Court was in seisin of the matter and an Order for maintaining status quo had already been passed.

8. Against the Orderdated9thJune, 1991, the1st Respondent filed Criminal Revision No.1230 of 1999 before the Allahabad High Court. The Criminal Revision Application was allowed by the learned single Judge, who set asidethe Order dated 9th June, 1999 and remanded the matter back to the trial Court for resuming the proceeding under Section 145 Criminal Procedure Code. The only ground on whichthe learned single Judge has set aside the Order dated 9th June, 1999 is thatearlieran Application for droppingthe proceedings under Section 145 Criminal Procedure Codehad been made and dismissed and that the Revision againstthat Order had also been dismissed by the Sessions Court bythe Order dated 11th May, 1993. It was held that the Order 11th May, 1993 had become final between the parties and was thus binding.It was held that in view of that Order the trial court could not have accepted the contention and should have rejected the Application for dropping the proceedings. It was held that in view of that Order the only option left to the Magistrate was to decide the proceedings under Section 145 Criminal Procedure Code between the parties on merit. It is this Order which is assailed in this Appeal.

9. Wehave heard the parties at length. In our viewthe High Court has committed an error in setting aside the Order of theMagistrate on the basis that the earlier Orderwas final and binding. The earlier Orders were interim Orders. They were passed before any evidence or statements had been recorded. Those Orders were passed only on the basis of the contentions ofthe parties.Atthat stage the1st Respondent had contended that the civil proceedings did not relateto thesame properties in respect of whichthe proceedings under Section 145 Criminal Procedure Codewere adopted. Thereafter statements were recorded in the Section 145 proceedings.Inher statementthe 1st Respondent admitted thatproceedings underSection 145Criminal Procedure Code were in respect of property which formed the subject-matterof the civil Suit and in respect of which an Order for maintenance of status quo had been passed bythe civil Court.The S.D.M. was bound to takea decision afreshbased on the statements before him. It is settled law that interim Orders, even though they may havebeen confirmed by the higher Courts, never bindand donot preventpassing of contrary Order at the stage of final hearing. The learned single Judge of the High Court appears to have lost sight of this.

10. Thelearned single Judge also failed to appreciate that the earlier Orders were passed on the footing that the civil proceedings related to different properties and were between different parties. Subsequently, when it became clear that the civil proceedings were in respect of the same properties and between the same parties even the factual positionhad changed.For that reason also the earlier Order wouldnot be binding.

11. Thequestion then is whether there is any infirmity in the Order of the S.D.M.discontinuing the proceedings under Section145 CriminalProcedure Code. The law onthis subject-matterhas been settled by the decision ofthis Court in the case of Ram Sumer Puri Mahant vs.State of U.P.& Ors., reported in 1985 (1) S.C.C. 427.Inthis case it has been held as follows :

"When a civil litigation is pending for the property whereinthe question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 ofthe Code.There is no scope to doubt or dispute the position that the decree of the civil courtis binding onthe criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challengethe propositionthat parallel proceedingsshould not be permitted to continue and in the event of a decree ofthe civil court, the criminal court should not beallowed to invokeits jurisdiction particularly when possession is being examinedby the civil court and parties are in a position to approach the civil court for interim orders such as injunctionor appointmentof receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest ofthe partiesnor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfiedthat parallel proceedings should not continue."

12. Weare unable toaccept the submission thatthe principles laid down in Ram Sumers' case would only apply if the civil Court has already adjudicated onthe dispute regarding the property and given a finding. In our view Ram Sumers'case is laying down that multiplicity of litigation shouldbe avoided asit is not in the interest ofthe partiesand public time would be wasted overmeaningless litigation.On this principle it has been held thatwhen possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection ofthe property during the pendency ofthe dispute,theparallel proceedingsi.e.Section145 proceedings should not continue.

13. Reliance has been placed on the case of Jhummamal alias Devandas versus State of Madhya Pradesh & Ors., reported in 1988 (4) S.C.C. 452.It is submitted that this authority lays down that merely because a civil suit is pendingdoes not mean thatproceedingsunder Section 145 Criminal Procedure Codeshould be set at naught. In our viewthis authority does not lay down any such broad proposition. In this case theproceedingsunder Section 145 Criminal ProcedureCodehadresulted in a concludedorder. 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. Inthis case the civil suit had been filed first.An Order of statusquo 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 Section145. In our view on the facts of the presentcase the ratio laid downin Ram Sumers'case (supra) fully applies.We clarify that we are not stating that in every case where a civil suit is filed, Section 145proceedings 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 bythe civil court that proceedings under Section 145 should not be allowedto continue.This is because the civil court is competent to decide the question oftitleas well as possession between the parties and the orders of the civil Court would be binding on the Magistrate.

14. Inthis view of the matter the appeal is allowed.The impugned Order is set aside. In our view, the S.D.M.was right in discontinuing the proceedings underSection145 Criminal Procedure Code. The Order passed by the S.D.M. on 9th of June, 1999 is restored.

15. Before we part it must be mentioned that in the impugned Order the High Court has passed stricturesagainstthe S.D.M.The High Court has also directed the District Magistrate to transfer the proceedings from the S.D.M.who passedthe Order dated 9th June, 1991. In our viewthe strictures were uncalled for.We hope that in futurethe High Court would not pass such strictures. Two viewsare alwayspossible.Merely because the High Court takes a different view is no ground for passing strictures against the lower court.