JUDGMENT 1. - This is an application in revision filed by Rama Kisban and his two sons Shri Krishan and Baldeo Prakash against the judgment of the Additional Sessions Judge No. 1, Jodhpur, dated 7th February, 1978, by which the order of the City Magistrate, Jodhpur, dated 15th November, 1977, dropping the proceedings under section 145, Cr.P.C. on the ground of non-existence of a dispute likely to cause breach of the peace, was set aside and the case was sent back to him for taking further proceedings in the matter in accordance with law. 2. The relevant facts giving rise to this revision application may be briefly stated as follows 3. Shri Daulat Raj and Shy am Sunder, here in after referred-to as party No. 1, presented an application under section 145, Cr.P.C. before the City Magistrate, Jodhpur against Rama Kishan and his three sons, herein after referred-to as party No. 2. It was alleged in the application that party No. 1 took one enclosure along with two shops on lease from party No. 2 on a monthly rent of Rs. 60/-, vide letter dated 7th August, 1977. Latter on, a dispute likely to cause breach of peace arose between the aforesaid properties. On 18th August, 1977 when members of party No. 1 were sitting on the shop and getting some construction work done, the members of party No. 2 along with their other companions came there and asked the members of party No. 1 to vacate the land and, if they did not vacate it they would be forcibly ousted from the possession thereof. As the members of party No. 1 were determined to forcibly dispossess 2 party No. from the disputed property, and as there was likelihood of breach of peace on account of further threats held out by members of party No. 2 on 21st August, 1977, party No. 1 rushed to the court of the City Magistrate, Jodhpur, for initiation of proceedings under section 145, Cr.P.C. by way of an application. 4. The City Magistrate received the application under section 145, Cr.P.C. along with affidavits of Shyam Sunder, Abdul Aziz and Babu Lal and the application to the Station House Officer, Khanda Phalsa for inquiry and report. 4. The City Magistrate received the application under section 145, Cr.P.C. along with affidavits of Shyam Sunder, Abdul Aziz and Babu Lal and the application to the Station House Officer, Khanda Phalsa for inquiry and report. The Station House Officer Khanda Phalsa also reported that there was danger of breach of peace on account of dispute regarding possession of the property under controversy between the parties. Upon information received from the police learned Magistrate drew up a preliminary order in writing requiring the parties to attend his court and to put in written statements of their respective claims as respects the actual possession of the subject of dispute and further calling upon them to produce documents or to adduce, by putting in affidavits evidence of such witnesses, as they relied upon in the course of these producing members of party No. 2 filed an application under subsection (5) of section 145, Cr.P.C. before the City Magistrate, Jodhpur, requesting the latter to drop the proceedings as no dispute likely to cause breach of peace did exist concerning the property under controversy. The learned Magistrate accepted the application and dropped the proceedings on the ground that a civil suit between the parties in respect of the same property is pending in the civil court and in that suit a temporary injunction order restarting party No. 1 from interfering with the possession of party No. 2 had already been issued and served on party No. 2 and so there was no likelihood of breach of the peace. Aggrieved by this order, party No. 1 went in revision to the court of The Sessions Judge, Jodhpur, who transferred the revision-application filed by party No. 1 to the court of the Additional Sessions Judge No. 1, Jodhpur, for hearing and disposal according to law. The Additional Sessions Judge No. 1 heard the parties and was of the view that the City Magistrate dropped the proceedings without any materials, whatsoever, and that the order being without jurisdiction was liable to be set aside in revision. Consequently, he reversed the order passed by the City Magistrate and sent the case back to him to proceed further in the matter in accordance with law. As against this order members of party No. 2 have come up to this Court in revision. 5. I have carefully gone through the entire record and heard Mr. Consequently, he reversed the order passed by the City Magistrate and sent the case back to him to proceed further in the matter in accordance with law. As against this order members of party No. 2 have come up to this Court in revision. 5. I have carefully gone through the entire record and heard Mr. J. B. Tatia appearing on behalf of party. No. 2 and Mr. K. N. Joshi, learned counsel for party No. 1. It has been contended by Mr. J. R. Tatia on behalf of party No. 2 that the question whether the proceedings should be dropped under sub-section (5) of S. 145, Cr.P.C. was one entirely within the discretion of the City Magistrate and the high Court is not empowered to interfere with his discretion unless his order is illegal or without jurisdiction or is based on no materials whatsoever. It was further urged that the City Magistrate was competent to pass the order dropping proceedings on the ground that a civil suit had been instituted and an injunction order had been obtained by party No. 2 restraining party No. 1 from interfering with the former's possession over the land in dispute, because, according to the learned counsel, no danger of breach of peace from the side of either party could exist after the order of temporary injunction was issued and served on party No. 1. In support of his above contention Mr. J. R. Tatia relied on Jaswant Singh v. The State, 1977 Cri. L. J, (NOC) 260 (Cal) , Md. Muslehuddin and another v. Md. Salahuddin, 1976 Cri. L. J. 1150 , Puran Singh v. Labhu Ram, 1977 Cri. L. J. 571 and Nabakishore Dash and another v. Republic of India, 1978 Cri L. J. (NOC) 50 (Orissa). 6. Mr. K. N. Joshi, learned counsel for party No. 1, on the other hand, strenuously urged that in the present case the City Magistrate was not justified in dropping the proceedings under sub-section (5) of S. 145, Cr.P.C. merely because a civil suit had been instituted by party No. 1 after the preliminary order was drawn-up and a temporary injunction order had been passed therein prohibiting party No. 1 to cause any interference with the possession of party No. 2 over the disputed property. According to him, party No. 1 was forcibly and wrongfully dispossessed by members of party No. 2 within two months immediately preceding the date of the preliminary order and so the City Magistrate ought to have made an inquiry into this fact, so that, if it appeared to him that party No. 1 had within two months next before the date of the preliminary order been forcibly and wrongfully dispossessed, he may treat the party No. 1 so dispossessed as if he had been in possession at the date of the preliminary order. The learned counsel further contended that the mere fact that there has been no further violence after the passing of the preliminary order or that party No. 1 was temporarily bound by an injunction not to enter into the disputed property was not sufficient to held that there was no apprehension of breach of the peace or that a dispute likely to cause breach of the peace bad come to an end. In support of his above contention, Mr. K. N. Joshi relied on Sajjan Singh v. Sajjan Singh, 1969 RLW 15 , Goggar v. The State, ILR 1952 (2) Raj. 90 , Chairman, Municipal Board, Bhadra v. The State, 1961 RLW 484 Baij Nath Singh v. The State of U. P., 1978 Cri.L.J. 784 and Chandu Mall and others v. Sitaram B. Naik and another, 1978 Cri.L.J. 356 . 7. I have given my best consideration to the rival contentions and perused the authorities cited by the learned counsel for the parties. From a bare reading of the order pessed by the City Magistrate on 15th November, 1977, it appears that the learned Magistrate was of definite opinion that a dispute exists between the parties concerning the properties in controversy. I have given my best consideration to the rival contentions and perused the authorities cited by the learned counsel for the parties. From a bare reading of the order pessed by the City Magistrate on 15th November, 1977, it appears that the learned Magistrate was of definite opinion that a dispute exists between the parties concerning the properties in controversy. The learned Magistrate clearly wrote as follows in his order:- " eSaus nksuksa i{kksa n~okjk izLrqr rdksZa ij xkSj fd;k o izLrqr dkuwu dk Hkh v/;;u fd;k tgkWa rd odhy o izkFkhZ ds bl rdZ dk iz'u gS fd i{kdkjh ds chp bl tk;nkn ds ckjs esa dksbZ >xM+k ugha gSA eSa bl ls lger ugha gwWaA pwWafd i{kdkjksa dh vc rd dh dkjxqtkjh ls ;g Li"V gS fd tk;nkn ds ckjs esa rukok gqvk gSA ;fn ,d feuV ds fy, ;g eku Hkh fy;k tk; fd izkFkhZx.k fcuk otg rukok dj jgs gSa rks iz'u ;g gS fd o izkFkhZx.k us nhokuh nkok oknh ds fo:) D;ksa fd;k ;fn os vius gd vkSj dCts ds ckjs esa brus fuf'pr Fks rks mudks vnkyr esa tkus dh vko';drk Hkh ugha FkhA vnkyr esa oknh i{kdkj us ;g Lohdkj fd;k gS fd tk;nkn ds ckjs esa rukok gSA vr% ;g esjk fuf'pr er gS fd bl tk;nkn ij Qjhdku dk tk;t esa rukok gSA " 8. Despite this I am of the definite opinion relating to the existence of a dispute between the parties concerning the property in question the learned City Magistrate dropped the proceedings merely on the ground that there was no possibility of party No. 1 causing a breach of the peace by dispossessing party No. 2 so long as the former were restrained by a temporary injunction from causing interference to the possession of the latter, i.e, party No. 2. It is no doubt true that the question whether the proceedings in a particular case should be dropped or not is one entirely within the discretion of the Magistrate, but, where the discretion is not exercised upon any materials before him, it amounts to an arbitrary exercise of the discretion. In the instant case, the City Magistrate had no materials before him to come to a conclusion that the dispute likely to cause breach of the peace had come to an end. In the instant case, the City Magistrate had no materials before him to come to a conclusion that the dispute likely to cause breach of the peace had come to an end. Merely because there had been no further violence after the date of issue of the preliminary order, it cannot be said that there was no apprehension of breach of the peace. Likewise, the fact that one of the parties, i.e. party No. I was restrained by way of a temporary order of injunction to enter the land or to interfere with the possession of party No. 2 did not per se put an end to the dispute likely to cause a breach of the peace. It is made clear in the injunction order passed by the civil court that the injunction order will not come in the way of party No. 1, if they evicted party No. 2 in due course of law. The jurisdiction of the City Magistrate to continue proceedings under section 145, Cr.P.C. was not therefore, ousted merely because a civil suit for permanent injunction had been instituted by party No. 2 against party No. 1 in respect of the property in question. It has been held by this Court in Chairman, Municipal Board, Bhadra v. State (supra) that the Magistrate is not prevented from taking action under section 145, Cr.P.C. although a civil suit is pending between the parties in respect of the same property. A similar view was taken in Mohinder Singh v. Dilbagh Rai, 1977 Cri.L.J. 1029 . Consequently, I am of the view that the City Magistrate did not exercise his discretion in a judicial manner. He ought not to have passed an order dropping the proceedings without any materials before him. The order, being without jurisdiction, was liable to be set aside in revision. 9. Mr. J. R. Tatia put forward another contention before me that the proceedings under section 145, Cr.P.C. should be stayed till the decision of the civil suit between the same parties in respect of the same property. The above contention is based on the ground that the subject-matter in the civil suit is identical with the subject matter in these proceedings under section 145, Cr.P.C. and if a civil suit and the proceedings under section 145, Cr.P.C.. The above contention is based on the ground that the subject-matter in the civil suit is identical with the subject matter in these proceedings under section 145, Cr.P.C. and if a civil suit and the proceedings under section 145, Cr.P.C.. are allowed to continue it will amount to multiplicity of proceedings and, in these circumstances, the possibility of conflicting judgments cannot be ruled out altogether. The above contention is not acceptable, because in these proceedings the Magistrate is required to decide the only question whether any and which of the parties was, at the date of the preliminary order or within two months next before it, in possession of the subject of dispute, while in the civil suit for perpetual injunction, as I am told, the question to be decided in which of the parties was in possession of the disputed property at the time of institution of the civil suit which was brought by party No. 2 after the date of passing the preliminary order in these proceedings. Hence, it cannot be said that the point for determination in both these cases are identical. Apart from this, the merits of the claims of any of the parties to a right to possess the subject of the dispute cannot be enquired into and decided by the Magistrate, in these proceedings and so the possibility of passing conflicting judgments does not arise. 10. The result of the above discussion is that I do not And any fault with the order of the Additional Sessions Judge No. 1, Jodhpur, in sending the case back to the City Magistrate for taking further proceedings in the matter. However, if at any subsequent stage the City Magistrate comes to a conclusion upon materials before him that no dispute likely to cause breach of the piece exists, he may pass appropriate order under the law. The revision-application has no force and is hereby dismissed.Revision dismissed. *******