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PETITIONER: JHUMMAMAL ALIAS DEVANDAS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT25/08/1988

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) KANIA, M.H.

CITATION:  1988 AIR 1973            1988 SCR  Supl. (2) 584  1988 SCC  (4) 452        JT 1988 (3)   479  1988 SCALE  (2)582

ACT:     Code of Criminal Procedure, 1973: s. 145-An order under- Deals  only with factum of possession on a  particular  day- Confers  no  title  to  remain  in  possession  of  disputed property-Civil  court  has  jurisdiction  to  give   finding different from  that  of  Magistrate-  Unsuccessful    party approaching  civil court does nor warrant setting  aside  of concluded order.

HEADNOTE:     The  mortgagee in possession leased out the shop to  the appellant   and  delivered  possession.  His   entering   of possession   became  a  subject  matter  of   dispute   with respondent No. 2 in which the appellant was  dispossessed.     In  the  proceedings  initiated under s.  145  Cr.  P.C. the,Magistrate  found  that the appellant  was  entitled  to restoration of possession since he was dispossessed forcibly and wrongfully within the terms of proviso to s. 145 (4) Cr. P.C.  The  respondent filed a suit  and  obtained  temporary injunction  against  the  appellant.  That  injunction   was vacated by the Additional District Judge who found that  the appellant  was  in  possession of the shop on  the  date  of occurrence of incident. The respondents revision application challenging  the  final order under s,145(6)  Cr.  P.C.  was dismissed  by  the  Sessions  Judge.  Accepting  respondents petition under s. 482 Cr. P.C., for quashing the proceedings under  s. 145 the High Court, following the judgment in  Rum Sumer Puri Mahant v. Srate of U. P., [1985] 1 SCC 427,  took the view that since the civil proceedings in respect of  the disputed  premises were pending before the  competent  civil court  where  interim  reliefs  have  been  prayed  for  and obtained,  there  was no justification  for  continuing  the proceedings under s. 145 Cr. P.C. pending before the SDM.     Allowing the appeal by special leave,     HELD:  The  High  Court was in  error  in  quashing  the proceedings  under s. 145 Cr. P.C. pending before  the  Sub- Divisional Magistrate. [589F, 587EF]     An order made under s. 145 Cr. P.C. deals only with  the factum of possession of the party as on a particular day. It                                                   PG NO 584                                                   PG NO 585

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confers  no  title to remain in possession of  the  disputed property.  The  order is subject to decision  of  the  civil court. The unsuccessful party therefore must get relief only in  the  civil  court.  He may move  the  civil  court  with properly   constituted  suit.  He  may  file  a   suit   for declaration  and  prove a better right  to  possession.  The civil  court  has jurisdiction to give a  finding  different from that which the Magistrate has reached. [589D-E]     The  ratio of the decision in Ram Sumer Puri  Mahant  v. State  of  U.P. is that a party should not be  permitted  to Litigate  before the criminal court when the civil  suit  is pending in respect of the same subject matter. That does not mean that a concluded order under s. 145 Cr.P.C. made by the Magistrate  of  competent jurisdiction, as  in  the  instant case,   should   be  set  at  naught  merely   because   the unsuccessful party has approached the civil court. [589C-D]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 139 of 1987.     From  the  Judgment and Order dated 25.4.  1986  of  the Madhya  Pradesh High Court in Misc. Criminal Case No. 1  135 of 1985.     Shanti  Bhushan,  K.M. Tiwari, L.P. Gaur  and  Ms.  Rani Jethmalani for the Appellant.     U.R.  Lalit  (not  present), P.S.  Poti,  S.K.  Gambhir, Sanjay Sarin, S.N. Khare and T.C. Sharma for the Respondents.     ‘The Judgment of the Court was delivered by     JAGANNATHA SHETTY, J. We grant special leave and proceed to dispose of the appeal.     The  appeal  is directed against the order of  the  High Court  of Madhya Pradesh dated April 35, 1986  quashing  the final order made under sec. 145 of Cr. P.C. in respect of  a shop  premises. The shop was in possession of  one  Asgarali son  of Akbar Ali as, mortgagee since October 17,  1969.  On August  7,  1982, Asgarali was said to have leased  out  the shop  to  the  petitioner  and  also  delivered   possession thereof. The entering of possession by the petitioner became a subject matter of dispute. Apprehending breach  of  peace, the  police  initiated proceedings under sec. 145  Cr.  P.C. before  the Additional District Magistrate, Ujjain. In  that proceedings, the petitioner was party no. 2 and   respondent                                                   PG NO 586 no.  2  was party no. 1, On August 13, 1982  the  Magistrate made  a  preliminary order. The  proceedings  continued  for about three years. On May 17, 1985, the Magistrate made  the final order in the following terms:     "Hence  I believe that the party no. 2, Jhummamal  alias Devandass S/o Jethanand had the occupation within two months from  13.8. 1982 on which summons were issued by  the  court under sec. 145 sub-sec. (1).     Hence I order that party no. 2 Jhummamal is entitled for the occupation of the shop unless he is evicted by procedure established by law. And I issue injunction that there should not  be  any  obstacle in handing  over  the  possession  to Jhummamal.  And if there are locks placed by Motilal or  his accomplices, the same should be broken open. And the  goods, if  any,  found  in  the shop should be  handed  over  to  a responsible person after making a panchnama."     It will be seen from the above order that the petitioner is  entitled  to  restoration of  possession  since  he  was dispossessed  forcibly  and wrongfully within the  terms  of proviso  to  sec. 145(4) of Cr.P.C. But  unfortunately,  the

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petitioner could not be put into possession.     On  July  15,  1985, the respondent  filed  a  suit  for injunction.  On  August  14,  1985,  he  obtained  temporary injunction  against  the  appellant. But  upon  appeal  that temporary   injunction  was  vacated.  The   learned   First Additional  District  Judge, who delivered the  Judgment  in that appeal, has recorded the following findings:     "Consequently  it is clear from the above analysis  that Asgar  Ali  was in possession of the disputed shop  till  7. 8.82. It  seems to be his prima facie right to rent out  the shop.   That  it  seems  that  he  received  the   rent   in advance executed   the   rent  deed  and   transferred   the possession to appellant/Jhummamal. As it is mentioned  above the First Information Report lodged by Kanhayalal on  behalf of  Jhummamal in which it is stated that Jhummamal  obtained possession  on  9.8.82,  does  not  seem  right,  when  only respondent  has demanded  possession in his  petition  dated 13.8.82.  Hence  I  believe  that  Jhummamal  obtained   the possession  of the disputed shop in the capacity as  tenant. Respondent  and his brothers put their locks later  on.  And                                                   PG NO 587 as  in  my opinion on the date of  occurrence  of  incident, Jhummamal     was    in    possession    of    the     shop, respondent,plaintiff does not have a prima facie case in his favour     Hence,  I  believe that the temporary  injunction  order passed  by  the  lower court is not just  and  as  per  law. Consequently while disagreeing with the order passed by  the lower court, I accept the appeal and quash the order  passed by the lower court. "     In between the parties, there were also certain criminal proceedings  regarding the theft from and house trespass  on the same premises.  A couple of days before the  preliminary order  was  made under sec. 145 Cr. P.C. a relation  of  the appellant filed report before the Police complaining against the respondent. On that report the respondent was prosecuted under secs. 380 and 454 of the IPC. On February 22 1984,  he was  convicted of the said offences. But upon appeal, he  as acquitted  by  the Additional District Judge.  The  revision against  the  order of acquittal was also dismissed  by  the High Court.     It  may  also be relevant to state that  the  respondent challenged the final order under sec. 145(6) of the  Cr.P.C. in  a revision before the sessions Judge. On September   27, 1985,   that   revision  was   dismissed.   After   becoming unsuccessfull in the proceedings under sec. 145 Cr.P.C.  and also  before civil court in the suit to or  injunction.  the respondent moved the High Court under sec. 482 of Cr.P.C. to quash the proceedings under sec. 145 Cr.P.C. The High  Court accepted  the  petition  and  quashed  the  proceedings   by following  the  judgment  of this Court in  Ram  Sumer  Puri ,Mahant  v.  State of U. P.[1985] 1  SCC  427.The  operative portion of the High Court order is as follows;     "In  view of the fact that civil proceedings in  respect of  the  disputed premises is pending before  the  competent civil court, where interim reliefs have been prayed for  and obtained,   the  reappears  to  be  no   justification   for continuing  with  the proceedings u/s  145  Cr.P.C.  pending before the S.D.M.     Shri  Tiwari learned counsel submitted that in case  the plaintiff’s suit is either withdrawn or dismissed, he  would be left with no remedy. This submission cannot be accepted                                                   PG NO 588 in  view  of the Supreme Court judgment as reported  in  Ram Sumer Puri v. State of U.P.

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   AIR 1985 SC 472.     Section 145 is intended to provide a special remedy  for the  prevention of breach of peace arising out of a  dispute relating  to  immovable property. Its primary object  is  to maintain the public peace and not to decide disputes between the  contending parties or adjudicate upon the rights of the parties  to possession. Now, that the civil court is  seized of   the  matters  it  is  desirable  that   such   parallel proceedings  in  respect  of the  same  subject  matter  and dispute  should not be allowed to continue in  the  criminal court as it amounts to an abuse of the process of the  court which is one of the grounds for invoking section 482 Cr. P.C.     For the foregoing reasons, this petition deserves to  be allowed. It is accordingly allowed. The proceedings u/s  145 Cr.P.C.   pending  before  the  Sub-Divisional    Magistrate Ujjain, along with the orders passed therein is,  therefore, quashed. "     The validity of the aforesaid order has been called into question in this appeal.     It will be obvious from the order of the High Court that the  decision  of this Court in Ram Sumer’s  case  has  been totally  misunder-stood.  In  that case, a  title  suit  for possession 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  sec. 145 Cr.P.C. were initiated with regard to the same property. In  that  proceedings, the Magistrate passed  a  preliminary order under sec. 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  refused to interfere with that order. But this  Court quashed the proceedings under sec. 145 Cr.P.C. observing :     There is no scope to doubt ar 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                                                   PG NO 589 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 flat continue and the order  of the learned Magistrate should be quashed.     We  fail to understand how the High Court in  this  case took advantage of the decision of this Court in Ram  Sumer’s case. The ratio of the said decision is that a party  should not be permitted to litigate before the criminal court  when the  civil  suit is pending in respect of the  same  subject matter. That does not mean that a concluded order under sec. 145 Cr.P.C. made by the Magistrate of competent jurisdiction be  set at naught merely because the unsuccessful party  has approached  the  civil court. An order made under  sec.  145 Cr.P.C.  deals  only with the factum of  possession  of  the party as on a particular day. It confers no title to  remain in possession of the disputed property. The order is subject to  decision  of  the civil court.  The  unsuccessful  party therefore  must get relief only in the civil court.  He  may

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move the civil court with properly constituted suit. for may file  a  suit for declaration and prove a  better  right  to possession.  The  civil  court has jurisdiction  to  give  a finding different from that which the Magistrate has reached.     Counsel  for  the respondent,  however,  suggested  that having  regard  to the nature of dispute and the  rights  of parties relating to the property in question, we should  not exercise  our extraordinary jurisdiction under Art.  136  of the Constitution. We do not think that the contention  could be  accepted in view of the patently erroneous order of  the High Court.     In the result, we allow the appeal, set aside that order of  the High Court and restore that of the  Magistrate.  The parties may work out their rights as per law. P.S.S.                                    Appeal allowed.