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PETITIONER: AMRESH TIWARI

       Vs.

RESPONDENT: LALTA PRASAD DUBEY & ANR.

DATE OF JUDGMENT:       25/04/2000

BENCH: D.P.Mahapatro, K.T.Thomas, S.N.Variava

JUDGMENT:

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     S.  N.  Variava, J.

     Leave granted.

     This  appeal is against an Order dated 8th  September, 1999.   By  this  Order the High Court has, in  exercise  of powers under Section 482 of the Criminal Procedure Code, set aside   an  Order  dt.   9th   June  1999,  passed  by   the sub-divisional Magistrate.  The SDM had dropped/discontinued the  proceedings under Section 145 of the Criminal Procedure Code.

     Briefly  stated the facts are as follows :  In respect of  the property concerned the 1st Respondent had a  dispute with Sharda Prasad and Shiv Kumar.  The 1st Respondent filed Civil  Suit  No.  280 of 1990 in the Court of  Civil  Judge, Gyanpur  on 10th October, 1990.  It is not denied that  this Suit  was  for  declaration  of title,  possession  and  for injunction.   On  10th October, 1990, itself an  application for  ad interim Order was made.  An Order to maintain status quo, as on that date, was passed by the Court.

     According  to  the  Appellant, on 10th  October,  1990 itself  the said Sharda Prasad and Shiv Kumar had executed a Sale  Deed in favour of Smt.  Prem Kali, who was the  mother of  the Appellant.  According to the Appellant possession of the  property  was delivered to Smt.  Prem Kali on the  same day.   In  Suit No.  280 of 1990, on an application made  by Smt.  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.

     While  this Suit was pending the S.O.  Police Station, Aurai  made  a  report to the S.D.M., Gyanpur  stating  that there  was a dispute regarding possession of land likely  to cause  a  breach  of peace within his jurisdiction  and  for initiating   of  proceeding  under   Section  145   Criminal Procedure  Code.   On the basis of this report, the  learned S.D.M.   passed  preliminary  Order   under  Section  145(1) Criminal Procedure Code.  Pursuant to this preliminary Order the   Appellant’s  mother  appeared   and  filed  a  written statement  stating that there was no dispute likely to cause

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breach  of peace regarding possession of the said  property. It  was  pointed out that the civil Suit was pending in  the court   of  civil  jurisdiction   and  an  Order   directing maintenance  of status quo had already been passed.  The 1st Respondent  also  filed a written statement pursuant to  the preliminary  Order.   The  1st Respondent claimed  that  the property  which formed the subject matter of the civil  Suit was  different  from  the  property   in  respect  of  which proceedings  under  Section 145 Criminal Procedure Code  had been adopted.

     The  Appellant thereafter made an Application that the proceedings  under  Section 145 Criminal Procedure  Code  be dropped  as a civil Suit in respect of the same property was pending.   That  Application was rejected by the S.D.M.   on 13th   September,  1991.   Against   the  Order  dated  13th September,  1991,  a Criminal Revision was filed before  the Additional  Session  Judge,  Gyanpur.    The  said  Criminal Revision was rejected by an Order dated 16th March, 1993.  A Review  Application  was  also dismissed by  the  Additional Session Judge on 11th May 1993.

     Thereafter  the proceedings under Section 145 Criminal Procedure  Code  were resumed.  Statements of  parties  were recorded.    In  the  course  of   her  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 order  for  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  suit has been filed for obtaining  stay  order against Sharda Prasad."

     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 Code had  been adopted.  The 1st Respondent also admits that  the Suit  is  for  possession and for stay.  Very fairly  it  is conceded  before  us that the land in respect of  which  the proceedings  under  Section 145 Criminal Procedure Code  was adopted were part of the properties in respect of which Suit No.  280 of 1990 had been filed.

     After  the statement of the parties had been recorded, an   Application  was  made  by   the  Appellant  that   the proceedings under Section 145 Criminal Procedure Code may 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  Order  dated 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 Procedure  Code when  the  civil  Court was in seisin of the matter  and  an Order for maintaining status quo had already been passed.

     Against  the  Order  dated  9th June,  1991,  the  1st 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 aside  the Order  dated 9th June, 1999 and remanded the matter back  to the  trial  Court for resuming the proceeding under  Section

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145  Criminal Procedure Code.  The only ground on which  the learned single Judge has set aside the Order dated 9th June, 1999  is  that  earlier  an  Application  for  dropping  the proceedings  under  Section 145 Criminal Procedure Code  had been  made and dismissed and that the Revision against  that Order  had also been dismissed by the Sessions Court by  the 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.

     We  have heard the parties at length.  In our view the High Court has committed an error in setting aside the Order of  the  Magistrate on the basis that the earlier Order  was 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  of  the  parties.   At   that  stage  the   1st Respondent  had contended that the civil proceedings did not relate  to  the  same  properties in respect  of  which  the proceedings  under Section 145 Criminal Procedure Code  were adopted.  Thereafter statements were recorded in the Section 145  proceedings.   In  her  statement  the  1st  Respondent admitted  that  proceedings  under   Section  145   Criminal Procedure  Code were in respect of property which formed the subject-matter  of the civil Suit and in respect of which an Order  for maintenance of status quo had been passed by  the civil  Court.   The  S.D.M.  was bound to  take  a  decision afresh  based  on the statements before him.  It is  settled law  that  interim  Orders, even though they may  have  been confirmed  by  the  higher  Courts, never bind  and  do  not prevent  passing  of  contrary Order at the stage  of  final hearing.  The learned single Judge of the High Court appears to have lost sight of this.

     The  learned  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 position  had  changed.   For that reason also  the  earlier Order would not be binding.

     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  this Court  in  the case of Ram Sumer Puri Mahant vs.   State  of U.P.   &  Ors., reported in 1985 (1) S.C.C.  427.   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  proceeding 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

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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 Sumers case would only apply if the  civil  Court  has already adjudicated  on  the  dispute regarding the property and given a finding.  In our view Ram Sumers  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  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 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 Sumers  case  (supra)  fully applies.   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.  .  In this  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 under Section  145  Criminal

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Procedure  Code.  The Order passed by the S.D.M.  on 9th  of June, 1999 is restored.

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