Research › Browse › Judgment

Karnataka High Court · body

1973 DIGILAW 88 (KAR)

HUTCHEGOWDA v. M. R. VENKATESHA IYENGAR

1973-06-07

HONNAIH

body1973
( 1 ) THE point for consideration in this petition is whether a Criminal court should proceed under S. 145 Crpc in respect of immoveable property which is the subject matter of civil litigation pending in a Civil Court. The facts leading to the present proceedings under S. 145 Crlpc are these: ( 2 ) THE first respondent before me filed a suit against the petitioner (OS. No. 35 of 1971) on the file of the Munsiff, Ramanagaram, Bangalore district, for a permanent injunction" restraining the petitioners from interfering with the possession of Sy. No. 457, measuring 6 acres 26 guntas and sy. No. 424, measuring 1 acre 27 guntas of Mynayakanahalli, Kasaba Hobli, channapatna Taluk. His case was that he was in possession of these lands and therefore his possession should be protected. On an application filed for issue of interim injunction, the learned Munsiff, on consideration of the material placed before him by both the parties by his order dt. 17-4-1971 took the view that the first respondent was not in possession of the said Sy. Numbers on the date of the suit and consequently vacated the interim injunction granted by him earlier. The correctness of this decision was challenged before the Court of the Principal Civil Judge, Bangalore in ma. 46 of 1971. The learned Civil Judge confirmed the. decision of the trial Court and dismissed the appeal. The first respondent thereafter filed a Revision Petition (CRP. No. 832 of 1972) in this Court challenging the correctness of the Courts below. ( 3 ) THIS Court dismissed the revision petition on 4-10-1972. Thereafter the first respondent complained to the Superintendent of Police, bangalore District stating that the petitioners were obstructing him from cultivating the said Sy. Numbers and requested police help to cultivate the lands. It appears that the Superintendent of Police sent the complaint to the Police of Channapatna, who sent a report to the Sub-Divisional Magistrate, ramanagaram stating that a dispute existed between the petitioners and first respondent in respect of the said two survey numbers and that there was likelihood of breach of peace in the locality and therefore action may be taken under S. 145 Crpc. On the basis of that report the Sub- divisional Magistrate came to the conclusion that there was a dispute in respect of the said two survey numbers and each party was trying to take possession of the schedule property and 'there was likelihood of breach of peace. Therefore, he initiated proceedings under S. 145 Crpc and passed an order under sub-sec. (4) of S. 145 Crpc attaching the two lands. It is this order that is challenged in this revision petition. It is clear from the facts narrated above that the first respondent failed to get an order of temporary injunction against the petitioners in the Civil court. In the suit filed by the first respondent, the Civil Court has come to the conclusion that on the date of the suit the first respondent was not in possession of the lands. It us submitted by Mr. Mohandas Hegde, the learned Counsel for the petitioners, that the fact of a suit pending before the Civil Court at the instance of the first respondent was brought to the notice of the Sub-Divisional Magistrate and also about the fact of refusal of interim injunction in favour of the first respondent. As soon as the proceedings were initiated under S. 145 Crpc, the petitioners appeared before the Sub-Divisional Magistrate and the facts and circumstances of the case must have been brought to his notice, and also the fact of a Civil suit pending in respect of the same lands. ( 4 ) THE provisions of S. 145 Crpc under these circumstances should not be invoiced when civil litigation about the identical subject matter is pending before a Civil Court. The very purpose of that Section is to prevent the breach of public peace at the instance of parties who should, like law abiding citizens, place their dispute before a Civil Court and not take the law into their own hands. The final order which is contemplated under that section is intended only as a stop-gap arrangement. The ultimata object undoubtedly is to compel parties to place their dispute before a civil Court and to get a proper adjudication on their rights to immoveable property. When the Civil Court is already seized of the matter, it seems to me that there is no longer any scope for invoking S. 145 Crpc. The ultimata object undoubtedly is to compel parties to place their dispute before a civil Court and to get a proper adjudication on their rights to immoveable property. When the Civil Court is already seized of the matter, it seems to me that there is no longer any scope for invoking S. 145 Crpc. But tha mere pendency of a Civil Suit does not oust the jurisdiction of a Magistrate to proceed under Section 145 Crpc. The duty of the Magistrate in such circumstance is to see that the parties actually go to the Civil court to get their grievances redressed. It is also the duty of the Criminal court to respect the orders and proceedings of the Civil Court. If the Criminal Court starts parallel proceedings in respect of a matter which is pending before a Civil Court, there cannot be any doubt that it will have the effect of undermining respect for the authority of Civil courts with the result the very object of S. 145 will be defeated. In such circumstance, the proper course open to the Magistrate is to proceed under s. 107 Crpc to bind over the parties if it is apprehended, that the parties are likely to commit an offence or commit breach of peace. In Malkappa v. Patimanntt 1958 Mys. L. J. 800. it was pointed out that a criminal court should not proceed under S. 145 Crpc in respect of immoveable property which is the subject matter of civil litigation actually pending in a Civil Court. By reason of the pendency of the civil litigation the Magistate should proceed under s. 107 Crpc to bind over the parties who, it is apprehended may commit an offence or commit breach of peace. This view was taken in Multam v. Shah Abdu Turab Qudari1962 Mys. L. J. 294. . In that case it was held that if there was a decision of a Civil Court, the Magistrate was expected to respect and sustain it. Therefore, even when an interim injunction is granted during the pendency of the suit, the Civil Court does come to a prima facie finding that the party in whose favour it grants the injunction is in possession of the property, in respect of which the injunction is granted. In another case viz. , Narasimah v. Byamma Crl. Therefore, even when an interim injunction is granted during the pendency of the suit, the Civil Court does come to a prima facie finding that the party in whose favour it grants the injunction is in possession of the property, in respect of which the injunction is granted. In another case viz. , Narasimah v. Byamma Crl. R. P. 280 of 1972 the facts were that an interim injunction order was refused by the Civil Court and it was ultimately confirmed by this Court. This Court held that in such circumstances proceeding under S. 145 Crpc was not the proper course but on the other hand the proper course for the Magistrate was to have recourse to the provisions of section 107 Crpc. ( 5 ) IF the Criminal Courts Start parallel proceedings in respect of a matter which is pending before a Civil Court, I have no doubt that it will have the effect of undermining the respect of the authority of Civil Courts. ( 6 ) I therefore, set aside the order of the Sub-Divisional Magistrate and quash the proceedings initiated under S. 145 Crpc. --- *** --- .