REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   980         OF 2009 [Arising out of SLP (Crl.) No. 5121 of 2008]

M.P. Peter …Appellant

Versus

State of Kerala & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. This  appeal  is  directed  against  the  judgment  and  order  dated  

19.06.2008 passed by a learned Single Judge of the High Court of Kerala in  

Criminal M.C. No. 1709 of 2008 whereby and whereunder an order dated  

3.04.2008 passed by the Sub-Divisional Magistrate was affirmed.

3. Appellant is said to be the owner and in possession of 13 ¼ cents of  

land  in  Survey  No.  412/1  of  Kizhakambalam  Village.   On  or  about  

09.01.1996, a complaint was filed by the respondent No. 3 alleging that the  

property in question belonged to him.  A report was submitted by the Sub-

Inspector  of  Police  on  12.04.1996  before  the  Sub-Divisional  Magistrate  

under  Section  145  of  the  Code  of  Criminal  Procedure  stating  that  there  

existed a dispute over title of the said property by and between the appellant  

and  the  respondent  No.  3.   Before  the  Sub-Divisional  Magistrate  the  

appellant  herein  was  arrayed  as  ‘the  B party’  and the  respondent  No.  3  

herein was ‘the A party’.  By an order dated 9.10.1997, the Sub-Divisional  

Magistrate held:

“As B party is stated to be residing in the building  constructed in the disputed property, he is directed  to  handover  the  property  to  A party  within  two  weeks from today failing which A party is entitled  for restoration of possession of the property with  police assistance.”

 4. Aggrieved  thereby,  the  appellant  filed  a  criminal  revision  petition,  

marked as Criminal;  Revision No. 41 of 1997 before the Sessions Court,  

Ernakulam  which  by  reason  of  an  order  dated  6.03.1999  was  allowed.  

Respondent No. 3 filed Criminal Revision Petition No. 308 of 1999 before  

the High Court of Kerala challenging the said order dated 6.03.1999.  By  

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reason of an order dated 25.09.2007, the revision petition was allowed by the  

High Court, holding:

“…In the circumstances, I find that the decision of  the Sessions Judge reversing the finding of the Sub  Divisional Magistrate is liable to be set aside; and I  do  so.   The  decision  of  the  Sub  Divisional  Magistrate is restored.  All the same, considering  the  fact  that  the  respondents/  B  party  has  constructed  house  and  is  residing  therein,  execution  of  the  order  of  the  Sub  Divisional  Magistrate is only to be initiated after six months  from today onwards…”

5. A  Special  Leave  Petition  filed  thereagainst  by  the  appellant  was  

dismissed by this Court by an order dated 11.02.2008.   

6. In the meantime, however, a suit, which was marked as O.S. No. 383  

of 2007, was filed by the appellant in the Court of Munsif, Perumbavoor on  

1.12.2007  for  a  declaration  that  the  appellant  was  the  owner  and  in  

possession  of  13.25  cents  of  land  in  Old  Survey  No.  412/1  of  

Kizhakkambalam Village.  An interim application was filed therein seeking  

a prohibitory injunction against dispossession which was dismissed by the  

Munsiff Court by an order dated 24.03.2008.

7. Appellant  preferred  an  appeal  thereagainst  which  was  marked  as  

C.M.A. No. 12 of 2008 challenging the said order dated 24.03.2008 and by  

an  order  dated  7.04.2008  an  order  of  injunction  was  passed  prohibiting  

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eviction of  the  appellant  from the plaint  scheduled property  until  further  

orders.  However, an application for clarification of the said order was filed  

by the respondent No. 3 and by an order dated 11.04.2008, it was allowed in  

the following terms:

“The respondent seeks a clarification that the order  is not against the R.D.O.  The order of the court is  clear.  The respondent alone is restrained.”

8. By an order dated 26.08.2008, while dismissing the said C.M.A. No.  

12 of 2008, the matter was remitted to the lower court with a direction to the  

parties to maintain the status quo.

9. On or  about  3.04.2008,  the  Sub Divisional  Magistrate  directed  the  

appellant to hand over possession of the suit property to the respondent No.  

3 within three days of the receipt of the said notice.

10. Aggrieved  thereby  and  dissatisfied  therewith,  the  appellant  filed  a  

Criminal  Miscellaneous  case  bearing  No.  Crl.  M.C.  No.  1709  of  2008.  

Though an interim stay was granted, the High Court dismissed the Criminal  

Miscellaneous Case by reason of the impugned judgment dated 19.06.2008.  

11. Mr.  Roy  Abraham,  learned  counsel  appearing  on  behalf  of  the  

appellant, would contend that the learned Trial Judge as also the High Court  

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committed a serious error insofar as they failed to take into consideration  

that the appellant being in possession of the property in question, an order of  

injunction should have been passed in his favour.

12. Mr.  U.U.  Lalit,  learned  senior  counsel  appearing  on  behalf  of  the  

respondent No. 3, on the other hand, urged :-

(i) A finding of fact having been arrived at by the learned Executive  

Magistrate  that  the  respondent  No.  3  was  dispossessed  by  the  

appellant within a period of two months from the date of initiation  

of  the  proceedings  under  Section  145  of  the  Code  of  Criminal  

Procedure,  1973  (for  short  ‘the  Code’)  and,  thus,  entitled  to  

restoration of possession, the impugned judgment should not be  

interfered with.

(ii) Appellant  having raised a contention that he was a co-sharer  in  

respect of the plot in question, which having not been found favour  

with by the courts below, he cannot be said to have any prima facie  

case and, thus, the impugned order is unassailable.

13. The proceeding under Section 145 of the Code indisputably remained  

pending for  a long time.   It  was initiated on or  about 9.01.1996 when a  

complaint was filed by the respondent No. 3.   As noticed hereinbefore, the  

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Sub Divisional Magistrate directed the appellant to handover the property to  

the respondent No. 3.  However, the order of the Sub Divisional Magistrate  

was reversed by the learned Sessions Judge, which in turn was set aside by  

the High Court by an order dated 25.09.2007.

14. The  correctness  or  otherwise  of  the  said  order  of  the  learned  Sub  

Divisional  Magistrate  attained finality  as  the Special  Leave Petition filed  

against the order of the High Court dated 25.09.2007 was dismissed by this  

Court  by  an  order  dated  11.02.2008.   Indisputably,  the  suit  was  filed  

thereafter.

15. An  order  passed  by  an  Executive  Magistrate  in  exercise  of  its  

jurisdiction under Section 145 of the Code of Criminal Procedure is subject  

to the ultimate decision of the suit filed in the civil court.

16. Even a decision of the learned Magistrate on possession of the parties  

may have some evidentiary value but  the same is  not  binding on a civil  

court.   In  a  proceeding  under  Section  145  of  the  Code  of  Criminal  

Procedure, the learned Magistrate would not be entitled to go into a disputed  

and in  particular  complicated  question  of  title.   Despite  an  order  passed  

under Section 145 of the Code of Criminal Procedure, the Civil Court may  

in  a  suit  pass  an  order  of  injunction.   In  this  case,  however,  admittedly  

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during pendency of the said proceedings under Section 145 of the Code of  

Criminal Procedure, the appellant had constructed a house.  Prima facie, the  

respondent  No.  3  stood  thereby.   In  the  proceedings  before  the  learned  

Magistrate,  he could have filed an application  for attachment.   He could  

have also filed an application for appointment of a receiver.  The question as  

to whether the constructions were raised only during pendency of the said  

proceeding would be considered in the suit by the Civil Court.

17. The High Court in its judgment dated 25.09.2007 while reversing the  

order  of  the  learned  Sessions  Judge  noticed  that  the  appellant  had  

constructed a house and been residing therein.  It was in that view of the  

matter,  he  interfered  with  the  order  of  the  Sub  Divisional  Magistrate  

directing that the restoration of possession may be effected after six months  

from the said date.

18. It  is,  therefore,  not  denied  or  disputed  that  the  appellant  is  in  

possession of a house and has been residing therein.  It also stands admitted  

that the respondent No. 3 is not entitled to the superstructure on the land in  

suit.  Neither the High Court while passing the said order dated 25.09.2007  

nor the courts below took this factor into consideration.  If, as conceded by  

Mr.  Lalit  that  the  respondent  No.  3  would  not  be  entitled  to  the  

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superstructure standing on the said land, with a view to give full effect to the  

order passed by the learned Sub Divisional Magistrate which provides for  

handing over of possession only on the land in question, the superstructure  

would be required to be demolished.   

19. Should  the  Civil  Court  have  granted  an  order  of  injunction  in  the  

peculiar facts and circumstances of the case is the question.

20. We have noticed hereinbefore that whereas the learned Munsiff in his  

order dated 24.03.2008 proceeded on the basis that the appellant could not  

claim a right over the suit land belonging to a third party unless a case of  

adverse possession is made out, the learned first appellate court, in its order  

dated 7.04.2008, opined:

“This is a petition filed by the Petitioner/ Appellant  U/o  39  r  1  C.P.C.   Heard  the  counsel  for  the  petitioner.   Perused  the  appeal  records.   The  respondents  are  restrained  by  an  order  of  temporary  injunction  from  forcibly  evicting  the  petitioner from the plaint  schedule property until  further orders.”

21.  As noticed hereinbefore,  a  clarification was sought  for  and by an  

order dated 11.04.2008, it was stated that “order is not against the RDO” and  

“the respondent alone is restrained”.

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22. Before, however, we advert to the correctness and/ or justifiability of  

the  said  order,  we  may  notice  that  the  learned  Subordinate  Judge,  

Perumbavoor in his order dated 26.08.2008 held as under:

“7. When the matter  came up for hearing,  the  counsel for the appellants stated that the property  obtained by the appellant is in old Sy. No: 411/2 B  3  and  he  has  filed  a  petition  for  amending  his  petition and the plaint.  He also pointed out that the  petition  to  amend  the  plaint  is  filed  before  trial  Court.   The  right  claimed  in  the  plaint  is  filed  before trial Court.  The right claimed in the plaint  and the petition is in Sy. No: 412/1.  But now the  appellant  had  sought  the  petition  to  amend  the  petition and claimed right in Sy. No: 411/2 B 3.  So, it can be seen that the case now pleaded by the  plaintiff  is  different  from what  has  between  the  case set up on the general plaint and the new case  pleased.  Hence, the appellant should be given an  opportunity to file a petition before the trial court  to set up his claim separately.     

8. As such there is no reason shown to interfere  with the finding of the court below.  Hence, this  C.M.A. is dismissed.  The matter is sent back to  the  lower  court  for  considering  the  amendment  petition and to decide the matter on merit.  In the  meanwhile  the  parties  will  maintain  status  quo.  There shall no order as to costs.”    

23. In the suit, the Sub Divisional Magistrate was not a party.  No order of  

injunction could have been passed against him but then that would not mean  

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that  the  Civil  Court  could  not  pass  an  order  of  injunction  against  the  

defendant – respondent.   If an order of injunction was passed against the  

defendant – respondent from obtaining possession, the question of RDO’s  

executing his own order dated 9.10.1997 would not arise.   Even where a  

court or a statutory authority may not be subjected to an order of injunction,  

a party can be injuncted from proceeding in the matter as is evident from the  

decision of this Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth  

Hiralal [AIR 1962 SC 527].

24. Furthermore,  there  is  no  doubt  or  dispute  that  an  application  for  

amendment of the plaint has been filed and the same has been allowed.  In  

the meanwhile, this Court by an order dated 28.07.2008 passed an order of  

status quo as regards possession.   Relying on or on the basis of the said  

order, the learned Subordinate Judge by an order dated 12.11.2008 directed  

as under:

“5. The order in the C.M.A. is specifically  stated  that  the  matter  is  sent  back  to  the  lower  court for considering the amendment petition and  to decide the matter on merit.   In the meanwhile  the  parties  will  maintain  the  status  quo.   It  is  evident  from  the  order  that  the  parties  will  maintain status quo till the matter is adjudicated by  the  Munsiff’s  Court  and  a  decision  is  given  on  merit.   The counter  filed  by  the  respondent  also  show  that  the  matter  is  stayed  by  the  Hon’ble  Supreme Court of India.  Hence, it is evident that  

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the parties have to maintain the status quo till the  case is finally disposed of after the amendment of  the plaint.  This petition is closed as per the basis  of the order.”

It was the correctness of the orders dated 7.04.2008 and 11.04.2008  

which was questioned before the High Court.  The High Court opined:

“21. The learned counsel for the petitioner submits  that  a  civil  suit  having  been  filed  and  the  civil  Court having passed orders like the one passed on  7.04.2008 and 11.04.2008 it must now be held that  there  is  no  threat  or  breach  of  the  peace  and  therefore the order under Sec. 145 of the Cr. P.C.  does not deserve to be executed.  I am unable to  accept  this  contention also.   Threat  to  breach of  peace  must  certainly  be  there  to  invoke  the  jurisdiction under Sec. 145 of the Cr.P.C.  But it  would be myopic to come to the conclusion that  such  threat  must  continue  every  day  during  the  continuation  of  the  proceedings,  after  the  orders  are passed, after the challenge of the orders come  to an end and till the execution of the order.  I am  unable to accept the said contention that the threat  of  breach  of  peace  must  exist  until  the  order  is  executed.   The  parties  need  not  be  aiming  the  swords at  each other during this  entire period to  justify execution of the order under Sec. 145 of the  Cr.P.C.”

25. Except at  the first instance,  the matter had not been considered on  

merit.   The effect  of  the order  refusing to grant  injunction had not  been  

considered by the courts below.  Whether an exceptional case has been made  

out or not did not fall for the consideration of the learned courts.

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26. The very fact that a triable issue has been raised by the appellant for  

the purpose of grant of injunction was not noticed.  Furthermore, the fact  

that the appellant is residing with his family on the structure raised by him  

also escaped the attention of the learned courts.  Respondent No. 3 had been  

kept out of possession for a long time.  In a case of this nature, interest of  

justice would have been sub-served if an order of injunction would have  

been passed in favour of the appellant, subject to such terms as the court  

might have thought fit and proper to impose..   

27. Mr.  Lalit  would  contend  that  there  exists  a  distinction  between  

forcible  eviction  and  legal  eviction.   It  is  so.   But,  when  an  order  of  

injunction  was sought  for  by  the  plaintiff  –  appellant,  his  prayer  was  to  

obtain an order of injunction so that his possession is maintained.   

28. The legality or validity of the order dated 9.10.1997 was in question in  

the suit.  Even the identity of the suit land, viz., as to whether it falls within  

the Survey No. 412/1 is required to be determined.

Our attention has been drawn to a decision of this Court in  Shanti  

Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] wherein it was held:

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“10.  Possession  is  nine  points  in  law.  One  purpose  of  the  enforcement  of  the  law  is  to  maintain peace and order in society. The disputes  relating to property should be settled in a civilized  manner  by  having  recourse  to  law  and  not  by  taking  the  law  in  own  hands  by  members  of  society.  A  dispute  relating  to  any  land  etc.  as  defined in sub-section (2) of Section 145 having  arisen,  causing  a  likelihood  of  a  breach  of  the  peace,  Section  145  of  the  Code  authorizes  the  Executive  Magistrate  to  take  cognizance  of  the  dispute and settle the same by holding an enquiry  into  possession  as  distinguished  from  right  to  possession or title. The proceedings under Sections  145/146 of the Code have been held to be quasi- civil,  quasi-criminal  in nature or  an executive  or  police action. The purpose of the provisions is to  provide  a  speedy and summary  remedy so  as  to  prevent  a  breach of  the  peace by  submitting the  dispute to the Executive Magistrate for resolution  as  between  the  parties  disputing  the  question  of  possession  over  the  property.  The  Magistrate  having  taken  cognizance  of  the  dispute  would  confine  himself  to  ascertaining  which  of  the  disputing parties was in possession by reference to  the  date  of  the  preliminary  order  or  within  two  months next before the said date, as referred to in  the proviso to sub-section (4) of Section 145 and  maintain the status quo as to possession until the  entitlement  to  possession  was  determined  by  a  court,  having  competence  to  enter  into  adjudication  of  civil  rights,  which  an  Executive  Magistrate  cannot.  The  Executive  Magistrate  would not take cognizance of the dispute if it  is  referable only to ownership or right to possession  and is not over possession simpliciter; so also the  Executive Magistrate would refuse to interfere if  there is no likelihood of breach of the peace or if  the likelihood of breach of peace though existed at  a previous point of time, had ceased to exist by the  

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time he  was  called  upon  to  pronounce  the  final  order so far as he was concerned.”

A distinction therein was noticed between a case where the subject  

matter of dispute is not attached by the Executive Magistrate and where it is  

so ordered.  It was observed:

“12. What is an eviction “in due course of law”  within the meaning of sub-section (6) of Section  145  of  the  Code?  Does  it  mean  a  suit  or  proceedings  directing  restoration  of  possession  between the parties respectively unsuccessful and  successful in proceedings under Section 145 or any  order  of  a  competent  court  which  though  not  expressly directing eviction of the successful party,  has  the  effect  of  upholding  the  possession  or  entitlement to possession of the unsuccessful party  as against the said successful party. In our opinion,  which we would buttress by reasons stated shortly  hereinafter,  ordinarily  a  party  unsuccessful  in  proceedings  under  Section  145  ought  to  sue  for  recovery of possession seeking a decree or order  for  restoration  of  possession.  However,  a  party  though unsuccessful in proceedings under Section  145  may  still  be  able  to  successfully  establish  before the competent court that it was actually in  possession of the property and is entitled to retain  the  same  by  making  out  a  strong  case  demonstrating the finding of the Magistrate to be  apparently incorrect.”

This Court further observed:

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“15.  It  is  well  settled  that  a  decision  by  a  criminal court does not bind the civil court while a  decision by the civil court binds the criminal court.  (See  Sarkar  on  Evidence,  15th  Edn.,  p. 845.)  A  decision given under Section 145 of the Code has  relevance and is admissible in evidence to show:  (i) that there was a dispute relating to a particular  property;  (ii)  that  the  dispute  was  between  the  particular parties; (iii) that such dispute led to the  passing  of  a  preliminary  order  under  Section  145(1) or an attachment under Section 146(1), on  the given date; and (iv) that the Magistrate found  one of the parties to be in possession or fictional  possession of the disputed property on the date of  the preliminary order.  The reasoning recorded by  the Magistrate or other findings arrived at by him  have  no  relevance  and  are  not  admissible  in  evidence  before  the  competent  court  and  the  competent  court  is  not  bound  by  the  findings  arrived at by the Magistrate even on the question  of possession though, as between the parties,  the  order  of  the  Magistrate  would  be  evidence  of  possession. The finding recorded by the Magistrate  does not bind the court. The competent court has  jurisdiction and would be justified in arriving at a  finding inconsistent with the one arrived at by the  Executive  Magistrate  even  on  the  question  of  possession. Sections 145 and 146 only provide for  the order of the Executive Magistrate made under  any of the two provisions being superseded by and  giving way to the order or decree of a competent  court. The effect of the Magistrate’s order is that  burden  is  thrown  on  the  unsuccessful  party  to  prove its  possession or  entitlement  to  possession  before the competent court.”

29. Correctness of some of the observations made therein although may  

be open to question, we need not enter into the said controversy at present.   

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30. We  may,  however,  notice  that  this  Court  in  Shanti  Kumar  Panda  

(supra) held:

“(3)  A decision  by  a  criminal  court  does  not  bind the civil  court while a decision by the civil  court binds the criminal court. An order passed by  the  Executive  Magistrate  in  proceedings  under  Sections  145/146  of  the  Code  is  an  order  by  a  criminal  court  and that  too based on a summary  enquiry. The order is entitled to respect and wait  before  the  competent  court  at  the  interlocutory  stage. At the stage of final adjudication of rights,  which would be on the evidence adduced before  the court, the order of the Magistrate is only one  out of several pieces of evidence.

(4) The court will be loath to issue an order of  interim  injunction  or  to  order  an  interim  arrangement inconsistent with the one made by the  Executive  Magistrate.  However,  to  say  so  is  merely  stating  a  rule  of  caution  or  restraint,  on  exercise  of  discretion  by  court,  dictated  by  prudence  and  regard  for  the  urgent/emergent  executive orders made within jurisdiction by their  makers;  and certainly not  a  tab on the power of  court. The court does have jurisdiction to make an  interim  order  including  an  order  of  ad  interim  injunction  inconsistent  with  the  order  of  the  Executive Magistrate. The jurisdiction is there but  the same shall be exercised not as a rule but as an  exception.  Even  at  the  stage  of  passing  an  ad  interim  order  the  party  unsuccessful  before  the  Executive  Magistrate  may  on  material  placed  before the  court  succeed in making  out  a  strong  prima facie case demonstrating the findings of the  Executive  Magistrate  to  be  without  jurisdiction,  palpably wrong or self-inconsistent in which or the  like cases the court may, after recording its reasons  and satisfaction, make an order inconsistent with,  

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or  in  departure  from,  the  one  made  by  the  Executive  Magistrate.  The  order  of  the  court  —  final  or  interlocutory,  would  have  the  effect  of  declaring one of the parties entitled to possession  and evicting therefrom the party successful before  the  Executive  Magistrate  within  the  meaning  of  sub-section (6) of Section 145.”

31. In Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra [Civil Appeal arising  

out  of  SLP  (C)  No.  10997  of  2008,  decided  on  5.05.2009]  and  Seth  

Ramdayal Jat v. Laxmi Prasad, [ 2009 (5) SCALE 527 ] this Court held that  

ordinarily the judgment of  a criminal  court  would not  be binding on the  

Civil Court.  However, the matter will stand on a different footing in a suit  

where the correctness of an order passed by an Executive Magistrate under  

Section 145 of the Code in question.  

32. Apart from the fact that the civil court will have a primacy over the  

decision of a criminal court even for the purpose of grant of injunction, it is  

a case where an exceptional case has been made out.  As admittedly the  

appellant has been residing in the suit premises and as furthermore it would  

not  be  practicable  to  dispossess  the  appellant  upon  demolishing  the  

structure, both balance of convenience as also irreparable injury lie in favour  

of the plaintiff- appellant.

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33. We, therefore, direct that the parties shall continue to maintain status  

quo till the decision of the civil court subject to the following conditions:

(i) Appellant  shall  not  transfer,  alienate  or  create  any  third  party  

interest in the property.

(ii) The hearing of the suit shall be expedited and all attempts should  

be made to dispose of the suit within a period of six months from  

the date of receipt of a copy of this order.

(iii) The court, save and except for cogent reasons, shall not grant any  

adjournment.

(iv) This order would be subject to the final decision of the suit.   

(v) In the event, the suit is dismissed, the court would direct payment  

of such amount as it may be determined by way of compensation  

to  the  defendant  for  being  kept  out  of  possession from the suit  

premises from the date of commencement of the suit till the date of  

restoration of possession.

34. The appeal is allowed with the aforementioned observations.  In the  

facts and circumstances of the case, there shall, however, be no order as to  

costs.

………………………….J.

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[S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; May 11, 2009   

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