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CASE NO.: Appeal (civil)  10906 of 1996

PETITIONER: Shanti Kumar Panda                                               

RESPONDENT: Shakutala Devi                                           

DATE OF JUDGMENT: 03/11/2003

BENCH: R.C. LAHOTI & ASHOK BHAN.

JUDGMENT: J U D G M E N T

R.C. LAHOTI, J.

       Shanti Kumar Panda, the appellant before us lodged a complaint  with Station Officer, Line Bazar, Jaunpur, whereupon the police filed a  report before the Sub-Divisional Magistrate (S.D.M.) Sadar, Jaunpur,  who made a preliminary order under Section 145(1) of the Code of  Criminal Procedure, 1973 (hereinafter referred to as ’the Code’, for  short) recording his satisfaction that a dispute, likely to cause a breach  of the peace, exists concerning the shop, which is the subject matter  of dispute (hereinafter referred to as ’the shop’, for short) between the  appellant and one Kamta Prasad (not a party in this appeal) and  requiring both of them to attend his court and put in the written  statements of their respective claims as respects the fact of actual  possession of the shop.  The learned S.D.M. also found that the case  was one of emergency and therefore he directed the shop to be  attached under Section 146(1) of the Code.  The preliminary order  under Section 145(1) and the order of attachment under Section  146(1) were both made on 16.5.92.  Kamta Prasad appeared and  stated that he had nothing to do with the shop and the owner of the  property, who was also in possession thereof, was one Shakuntala  Devi (respondent No.1 herein, hereinafter referred to as ’the  respondent’, for short).  Kamta Prasad also submitted that the  appellant had deliberately not impleaded the respondent as a party to  the proceedings as he was in collusion with the police and wanted to  deprive Shakuntala Devi of her lawful possession over the shop.  Shakuntala Devi, on becoming aware of the proceedings (obviously on  the information provided by Kamta Prasad), moved an application  before the learned S.D.M. stating that she was a party interested in  the subject matter of dispute and as she was in peaceful possession of  the shop, she ought to have been joined as party to the proceedings  and as that not done, she prayed for her impleadment and an  opportunity of being heard.

       The learned S.D.M. kept the application filed by the respondent  pending till 6.7.92 when the proceedings were directed to be disposed  of by a final order.  No opportunity was allowed to the respondent to  join in the proceedings and to file her own claims as to the possession  of the shop.  The learned S.D.M. held that the appellant was in  possession over the disputed shop on the date of the passing of the  preliminary order as also in the two months prior thereto.  Having  made that declaration the learned S.D.M. directed that until the rights  were determined by the competent court, the shop shall be released in  favour of Shanti Kumar Panda, the appellant.

       Shakuntala Devi, the respondent and Kamta Prasad both  preferred revision petitions against the order of the learned S.D.M.  By  order dated 27.2.93 the learned Additional Sessions Judge directed the

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revision to be dismissed by holding that the order of the learned  S.D.M. did not suffer from any infirmity.  Both these orders were put in  issue by the respondent and Kamta Prasad by filing a petition under  Article 226 of the Constitution in the High Court which too was  dismissed on 6.12.93.  One of the reasons which has prevailed with  the High Court for dismissing the petition is that the respondent had  already approached the Civil Court and the jurisdiction of the Civil  Court having been invoked, which was an efficacious alternative  remedy available to the respondent, it was not appropriate for the  High Court to entertain the writ petition and exercise its jurisdiction  under Article 226 of the Constitution.

       Soon after the decision by the learned Additional Sessions Judge  on 27.2.93, Shakuntala Devi, the respondent, filed civil suit No.283 of  1993 based on title, seeking a permanent preventive injunction  against Shanti Kumar Panda, the appellant herein.  Kamta Prasad who  alone was impleaded by the respondent as the party in the  proceedings under Sections 145/146 of the Code was not impleaded as  a party in the civil suit filed by the respondent Shakuntala Devi,  inasmuch as the impleadment of Kamta Prasad who was not claiming  any interest and not even possession over the shop was considered to  be unnecessary.  The respondent also sought for an ad-interim  preventive injunction so as to protect her possession over the shop.   By order dated 5.8.95 the learned Civil Judge allowed the application  filed by the respondent and directed the appellant to remain restrained  from interfering with the possession of the respondent over the shop.   The learned Civil Judge also directed a court officer to go at the site of  the shop and after opening the locks to put the respondent in  possession of the shop.  It would be relevant to note some of the  observations, pungent to some extent, made by the learned Civil  Judge during the course of his order.  The learned Civil Judge observed  that the proceedings under Sections 145/146 of the Code had  proceeded in the absence of the respondent who was not even allowed  an opportunity of being heard though she was the real person claiming  possession and also title over the shop.  The learned Judge said -  "She was not even offered the opportunity of being  heard.  The real fact is that after the death of Smt.  Tapesara the anti social elements conspired to grab  her house and shop and under that conspiracy the  sister of Tapesara, i.e., Shakuntala Plaintiff whose  possession was over the disputed house and shop  wanted to eject her forcibly and the administration  fully helped in evicting the plaintiff from her house  and shop\005\005..it is clear that the plaintiff was in  possession and still she is in possession.  Merely by  taking advantage of the condition of the plaintiff  the Sub-Inspector and the S.D.M. under the  proceeding under Section 145 Cr.P.C. got locked  the shop and house and the plaintiff is again  entitled to live therein.  If it is not so any one could  take possession of any one’s house in collusion  with the administration.  The day it is done that  day will become a symbol of injustice in the  society\005\005\005\005The one who is not a party to the  proceeding under Section 145 Cr.P.C. the finding  given under Section 145 Cr.P.C. is not binding on  him."

       The appellant preferred a miscellaneous appeal.  The learned  District Judge, vide his order dated 15.11.95, allowed the same and  set aside the order dated 5.8.95 passed by the learned Civil Judge.   The principal reason which has prevailed with the learned District  Judge was that the proceedings under Section 145 of the Code having  terminated in favour of Shanti Kumar Panda, the appellant, the trial

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court was not justified in issuing the order of injunction unless and  until the order of the learned S.D.M. was superseded by a decree of  the Civil Court and that no injunction can be granted when the  disputed property is in custodia legis.                  The respondent preferred a petition under Article 227 of the  Constitution.  The High Court has allowed the petition, set aside the  order of the learned District Judge and restored the order passed by  the learned Civil Judge.  Feeling aggrieved by the order of the High  Court this appeal has been preferred by special leave.

       Mr. Sunil Gupta, the learned Senior Counsel appearing for the  appellant, has forcefully urged, placing reliance on the phraseology  employed by the Parliament in drafting Section 145 of the Code, that  once an order under Sections 145 and/or 146 of the Code has been  passed, finally terminating proceedings thereunder, then it is only a  decree for eviction passed by a Civil Court in a suit based on title filed  by the party unsuccessful before the learned S.D.M. which would  supersede the order passed by the Magistrate, which order continues  to remain in operation and ought to be respected not only by the  parties thereto but also by the Civil Court.  In other words, he  submitted that an order of temporary injunction inconsistent with the  order of the Magistrate under Sections 145/146 of the Code or  superseding it cannot be passed by the Civil Court.           Mr. Jayant Bhushan, the learned Senior Counsel, who initially  represented the respondent before being designated as senior  advocate, appeared at the time of hearing and submitted that though  he was not instructed to appear yet he is available to assist the Court  to place the correct legal position in spite of his having given up the  brief to the respondent.  We appreciate the gesture shown by him.  He  has adopted a line of reasoning opposite to the one adopted by Mr.  Sunil Gupta and has supported the order of the trial court restored by  the High Court.  The rival submissions made before us raise certain  important issues touching the value and efficacy of the final order  passed under Sections 145/146 of the Code in the proceedings  wherein that order is called in question.   

Sections 145 and 146 of the Code, insofar as they are relevant  for our purpose are extracted and reproduced hereunder:

"145. Procedure where dispute concerning  land or water is likely to cause breach of  peace. \026  

(1) Whenever an Executive Magistrate is satisfied  from a report of a police officer or upon other  information that a dispute likely to cause a  breach of the peace exists concerning any land  or water or the boundaries thereof, within his  local jurisdiction, he shall make an order in  writing, stating the grounds of his being so  satisfied, and requiring the parties concerned  in such dispute to attend his Court in person  or by pleader, on a specified date and time,  and to put in written statements of their  respective claims as respects the fact of actual  possession of the subject of dispute.

(2)  & (3)              ***             ***

(4)  The Magistrate shall then, without reference to  the merits or the claims of any of the parties  to a right to possess the subject of dispute,  pursue the statements so put in, hear the

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parties, receive all such evidence as may be  produced by them, take such further evidence,  if any, as he thinks necessary, and, if possible,  decide whether any and which of the parties  was, at the date of the order made by him  under sub-section (1), in possession of the  subject of dispute :

Provided that, if it appears to the Magistrate  that any party has been forcibly and  wrongfully dispossessed, within two months  next before the date on which the report of a  police officer or other information was  received by the Magistrate, or after that date  and before the date of his order under sub- section (1), he may treat the party so  dispossessed as if that party had been in  possession on the date of his order under sub- section (1).

(5)  Nothing in this section shall preclude any party  so required to attend, or any other person  interested, from showing that no such dispute  as aforesaid exists or has existed; and in such  case the Magistrate shall cancel his said order,  and all further proceedings thereon shall be  stayed, but, subject to such cancellation, the  order of the Magistrate under sub-section (1)  shall be final.

(6) (a) If the Magistrate decides that one of the  parties was, or should under the proviso to  sub-section (4) be treated as being, in such  possession of the said subject, he shall issue  an order declaring such party to be entitled to  possession thereof until evicted therefrom in  due course of law, and forbidding all  disturbance of such possession until such  eviction; and when he proceeds under the  proviso to sub-section (4), may restore to  possession the party forcibly and wrongfully  dispossessed.

(b)  The order made under this sub-section  shall be served and published in the manner  laid in sub-section (3)."

146. Power to attach subject of dispute and to  appoint receiver. \026      (1)  If the Magistrate at any time after making the  order under sub-section (1) of Section 145  considers the case to be one of emergency, or  if he decides that none of the parties was then  in such possession as is referred to in Section  145, or if he is unable to satisfy himself as to  which of them was then in such possession of  the subject of dispute, he may attach the  subject of dispute until a competent Court has  determined the rights of the parties thereto  with regard to the person entitled to the  possession thereof :

Provided that in the event of a receiver being  subsequently appointed in relation to the

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subject of dispute by any Civil Court, the  Magistrate \026  

(a) shall order the receiver appointed by him  to hand over the possession of the subject of  dispute to the receiver appointed by the Civil  Court and shall thereafter discharge the  receiver appointed by him.

(b) may make such other incidental or  consequential orders as may be just.                    Possession is nine points in law.  One purpose of the  enforcement of the laws 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 on 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 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  time he was called upon to pronounce the final order so far as he was  concerned.

       There is a difference between a case where the subject-matter  of dispute is not attached by the Executive Magistrate under Section  146(1) and the case where it is so attached.   Under sub-section (1) of  Section 145 a preliminary order taking cognizance of the dispute  having been passed, the Magistrate would under sub-section (4)  decide who was in possession of the disputed property on the date of  the passing of the preliminary order.  Consistently with such finding, a  declaration by Magistrate in favour  of  such party would follow under  sub-section (6) entitling it to retain possession over such  property  until evicted therefrom in due course of law.  And until such eviction all  disturbances in its possession shall be forbidden.  If any party is found  to have been forcibly or wrongfully dispossessed within two months  next before the date on which the report of a police officer or other  information setting the Magistrate in motion was received by him or  between such date and the date of order under sub-section (1), then  the party dispossessed has to be fictionally treated as one in  possession on the date of preliminary order under sub-section (1).   The declaration of entitlement to possession under proviso to sub- section (4) read with sub-section (6) shall be made in favour of such  party and the party found to have been so dispossessed  forcibly and  wrongfully may also be restored into possession.  The declaration

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having been made, it would be for the unsuccessful party to approach  the competent court  and secure such order as would enable his  entering into possession and evicting the party successful in  proceedings under Section 145.   

       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 competent court which though not expressly  directing eviction of 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.

       In a case where attachment has been made under Section  146(1) of the Code, it is not necessary for the unsuccessful party to  seek the relief of possession from the court; a mere adjudication of  rights would suffice inasmuch as the attached property is held custodia  legis by the Magistrate for and on behalf of the party who would be  successful from the competent court by establishing his right to  possession over the property.                  Mr. Sunil Gupta, the learned Senior Counsel for the appellant  submitted, reading literally the sub-section (6) of Section 145 of the  Code, that declaration of the successful party "to be entitled to  possession thereof until evicted therefrom in due course of law, and  forbidding all disturbance of such possession until such eviction"  means that the Parliament intended to confer a binding efficacy on the  Magistrate’s order not only qua the parties to the proceedings but also  qua all concerned to respect and abide by the order of the Executive  Magistrate and such order and the possession of the successful party  protected thereunder shall continue to survive and hold valid and good  unless at the final adjudication of civil rights the competent court has  directed the party successful in proceedings before the Magistrate to  be evicted, whence and whence alone that party shall lose possession  and bound to hand over the same to the party successful in the Civil  Court.

       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 \026 Sarkar on Evidence, Fifteenth Edition, page  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 through, 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

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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.         

       In Bhinka & Ors.  Vs.  Charan Singh , AIR 1959 SC 960, this  Court held that the Magistrate does not purport to decide a party’s title  or right to possession of the land but expressly reserves that question  to be decided in due course of law.  His order is a temporary order  irrespective of the rights of the parties, which will have to be agitated  and adjudicated upon by a competent forum and in the manner  provided by law.  The life of the said order is coterminous with the  passing of a decree by a Civil Court and the moment a Civil Court  makes an order of eviction, it displaces the order of the Criminal  Court.  The orders under Section 145 of the Code are thus merely  police orders and do not decide any question of title.                      We would like to clarify that in the case of Bhinka and Ors.  (supra) the question \026 what is a competent court, did not arise for  determination; nor did the question as to what is the weight and value  to be assigned to or what is the efficacy of the order of the Magistrate  in a subsequent suit or proceeding initiated before a competent court  directly arise for consideration.  This we say because it is also well- settled that Sections 145 and 146 nowhere specifically provide for the  order of the Magistrate being subject to and superseded by only a  decree of ’Civil Court’.  The words ’competent court’ used in Section  146 (1), in the context in which they have been used, only mean "any  court which has jurisdictional competence to decide the question of  title or rights to the property or entitlement to possession based on  right or title to the property though the court is not necessarily a Civil  Court".  The words ’until evicted therefrom in due course of law’ as  occurring in sub-section (6) of Section 145’ mean the eviction of the  party successful before the Magistrate, consequent upon the  adjudication of title or right to possession by a competent court; that  does not necessarily mean a decree of eviction.  The party  unsuccessful before the Magistrate may dispute the correctness of the  finding arrived at by the Magistrate and is at liberty to show before the  competent court that it had not dispossessed the successful party or  that it is the unsuccessful party and not the successful party who was  actually in possession and the finding to the contrary arrived at by the  Magistrate was wholly or apparently erroneous and unsustainable in  law.

In Jhunamal alias Devandas  Vs.  State of Madhya Pradesh  & Ors. , (1988) 4 SCC 452, this Court has held that a concluded order  under Section 145, Cr.P.C., made by the Magistrate of competent  jurisdiction should not be set at naught merely because the  unsuccessful party has approached the civil Court.  An order made  under Section 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 move the civil court with a 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.  Here again we  may hasten to add that the expression ’civil court’ used by this Court  in Jhunamal’s case (supra) means competent court and not  necessarily a civil court as commonly understood.   

At what stage may the competent court arrive at a finding

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inconsistent with the one given by the Magistrate?  Is it correct to say  that the finding recorded by the Magistrate can be dislodged only at  the time of and by passing a final decree terminating the suit? Or,  whether the competent court can, depending on the facts and  circumstances of a given case, arrive at a finding different from the  one recorded by the Magistrate even at the state of interlocutory order  such as one of injunction or appointment of receiver during the  pendency of the suit?

       We have already indicated hereinabove the extent of relevance  of an order under Sections 145/146 of the Code in a subsequent civil  action between the parties.  In a civil action between different parties  the finding of a criminal court cannot be treated as binding except to  the extent of being evidence of the factum of a particular judgment  having been delivered by the particular criminal court on a particular  date as already indicated hereinabove.  In Anil Behari Ghosh Vs.  Smt. Latika Bala Dassi & ors., AIR 1955 SC 566 this Court has held  that in a proceeding for revocation of a grant of probate under Section  263 of the Succession Act the previous judgment of the Criminal Court  convicting the son of the murder of his father and sentencing him to  transportation for life is not admissible in evidence of the fact that the  son was the murderer of the testator. That is a question to be decided  on evidence.  The judgment of the Criminal Court is relevant only to  show that there was such trial resulting in such conviction and  sentence of the son to transportation for life.

       The order of the magistrate under Section 145/146 of the Code  is not only an order passed by Criminal Court but is also one based on  summary enquiry.  The competent Court in any subsequent  proceedings is free to arrive at its own findings based on the evidence  adduced before it on all the issues arising for decision before it.  At the  stage of judgment by Civil Court the order of the magistrate shall be of  almost no relevance except for the purpose of showing that an enquiry  held by the magistrate had resulted into the given declaration being  made on a particular date.   The competent Court would be free to  record its own findings based on the material before it even on the  question of possession which may be inconsistent with or contrary to  the findings arrived at by the magistrate.

       At the stage of passing an interlocutory order such as on an  application for the grant of ad interim injunction under Rule 1 or 2 of  Order 39 of the CPC, the competent Court shall have to form its  opinion on the availability of a prima facie case, the balance of  convenience and the irreparable injury __ the three pillars on which   rests the foundation of any order of injunction.  At that stage material  in the shape of affidavits, documents and pleadings is placed before  the Court for its consideration.  The order of the Executive Magistrate  may also be placed before it, who having held an enquiry, though  summary in nature, has arrived at a finding on the question of  possession which the Code intends to be sustained unless the Court of  competent jurisdiction by its judicial order supersedes the finding or  the effect of such finding and till then all disturbances in possession of  the successful party are intended by the Code to be forbidden.  The  Civil Court shall also respect such order and will be loath to arrive at  an interim arrangement inconsistent with the one made by the  Executive Magistrate.  However, this is far from holding that the Civil  Court does not have jurisdiction to make an order of 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.  There may be cases such as one where the order of  the Executive Magistrate can be shown to be without jurisdiction,  palpably wrong or containing self-contradictory findings.  For example,  the Magistrate may have made an order treating the party  dispossessed beyond two months to be as in possession.  There may  be cases where in spite of the order made by the Executive Magistrate

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based on the evidence adduced before it, the competent court, based  on the material produced before such Court, may be inclined to hold  that prima facie a very strong case for retaining or placing one of the  parties in possession of the suit property is made out or where it will  be totally unjust or inequitable to continue one party in possession of  the property as ordered by the Executive Magistrate. In such  exceptional situations, the competent court (which will mostly be a  civil court) may have jurisdiction for granting an order of injunction in  departure from the findings recorded and the declaration made by the  Executive Magistrate under Section 145 of the Code of Criminal  Procedure.  The order under Section 146 of the Code would not pose a  problem of that magnitude.  Inasmuch as the property is under  attachment and is placed in the hands of a receiver the Civil Court can  comfortably examine whether it would be just and expedient to  continue with the attachment and with the same receiver or to appoint  another receiver or to make some other interim arrangement during  the pendency of the civil suit.

       For the purpose of legal proceedings initiated before a  competent court subsequent to the order of an Executive Magistrate  under Sections 145/146 of the Code of Criminal Procedure, the law as  to the effect of the order of the Magistrate may be summarized as  under:- (1)     The words ’competent court’ as used in sub-section (1) of  Section 146 of the code do not necessarily mean a civil court  only.  A competent court is one which has the jurisdictional  competence to determine the question of title or the rights of  the parties with regard to the entitlement as to possession over  the property forming subject matter of proceedings before the  Executive Magistrate; (2)     A party unsuccessful in an order under Section 145(1) would  initiate proceedings in a competent court to establish its  entitlement to possession over the disputed property against the  successful party.  Ordinarily, a relief of recovery of possession  would be appropriate to be sought for.  In legal proceedings  initiated before a competent court consequent upon attachment  under Section 146(1) of the Code it is not necessary to seek  relief of recovery of possession.  As the property is held custodia  legis by the Magistrate for and on behalf of the party who would  ultimately succeed from the court it would suffice if only  determination of the rights with regard to the entitlement to the  possession is sought for.  Such a suit shall not be bad for not  asking for the relief of possession. (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 weight 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 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

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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, or in departure  from, the one made by the Executive Magistrate.  The order of  the court \026 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.    

In the present case, the trial Court has felt strongly against the  police action taken under Section 145(1) of the Code.  This can clearly  be inferred from the observations contained in the order of the learned  Civil Judge.  The plaintiff-respondent herein was not allowed \026 in spite  of her efforts \026 to participate in the proceedings under Section 145.   The party proceeded against by the Executive Magistrate was not  interested in contesting the proceedings. The first Appellate Court has  not recorded any disagreement with the observations made by the  learned Civil Judge but has proceeded on a different reasoning which  reasoning has been found to be erroneous by the High Court.  The  High Court has agreed with the view taken by the learned Civil Judge.  We do not think that any case for interference with the order of the  High Court is made out.

       The appeal is dismissed.  No order as to the costs.