Abraham v. Charley — 1982 DIGILAW 9 (KER)

ORDER P. Janaki Amma, J. 1. The petition is filed by the B party members 1 to 4 and 6 in M. C. No. 34 of 1981 on the file of the Sub Divisional Magistrate, Palai. The fifth petitioner is the mother of the other petitioners. Respondents 2 to 5 are the A party to the proceedings. The second respondent is the father's brother's son of petitioners 2 to 4. The third respondent is the wife of the second respondent, and respondents 4 and 5 are his brothers. 2. The property involved in M. C. No. 34 of 1981 consists of 14 acres 23 cents of land comprised in Sy. No. 1257/1 of Poonjar Nadubhagom Village. The items originally belonged to one Joseph, grand father of petitioners 1 to 4. They were allotted to his son, Xavier, an incapacitated person. According to the petitioners, the property was being managed by one Johnson as guardian of Xavier and an uncle of petitioners 1 to 4. The petitioners claimed that they came into possession of the properties on the death of their father in 1970, the father of the petitioners got the properties on lease in 1963. After the petitioners got possession of the properties they filed S. M. No. 86 of 1978 under S.72(c) of the Kerala Land Reforms Act, and patta has been issued to the petitioners and purchase price also has been remitted. An appeal is pending against the decision of the Land Tribunal. The entire extent of the property is 15 acres 15 cents, out of which 80 cents is claimed by the guardian of the owner, and the patta is in respect of the remaining portion. The second respondent was a witness in the proceedings before the Land Tribunal and has given evidence to the effect that the petitioners and their predecessors were in possession of the property as lessees for over 22 years. There is a building in the property, where the petitioners are residing. But, on 14-7-1981, the Sub Inspector of Police, Erattupetta, initiated proceedings under S.145 of the Code of Criminal Procedure. Notice was served on the petitioners to appear on 30-7-1981. The petitioners filed a petition before the Sub Divisional Magistrate stating that the petitioners were in possession of the entire property, including the building, and that respondents 2 to 5 had no possession. Notice was served on the petitioners to appear on 30-7-1981. The petitioners filed a petition before the Sub Divisional Magistrate stating that the petitioners were in possession of the entire property, including the building, and that respondents 2 to 5 had no possession. A suit had been filed by the petitioners as O. S. No. 240 of 1981 in the Sub Court, Kottayam, against the second respondent for an injunction restraining him from trespassing into the property. The injunction was served on 10-7-1981. The second respondent entered appearance and filed his objection. The case stood posted to 13-8-1981. The first respondent raised only a dispute regarding 75 cents of land appurtenant to the building and also to the building. The respondents also filed their objection before the Sub Divisional Magistrate claiming only 75 cents of land and the building. According to the second respondent, the building was surrendered to him with 75 cents of land appurtenant thereto. But, it is admitted that the first petitioner is still residing in a portion of the building in the upper story. The case of the petitioner is that in the circumstances noted there was no necessity for initiating proceedings under S.145 of the Code of Criminal Procedure. The present petition is filed for setting aside the order passed by the Sub Divisional Magistrate. 3. It is noted that the Sub Divisional Magistrate Palai, passed a preliminary order on 14-7-1981, initiating proceedings under S.145(1) of the Code of Criminal Procedure, stating that he was satisfied from the report of the Sub Inspector of Police, Erattupetta counter signed by the Deputy Superintendent of Police, Palai, that a dispute likely to cause breach of the peace exists concerning possession of the land measuring 14 acres 23 cents in Sy. No. 1257/1 of Poonjar Nadubhagom Village and the building thereon between the A party on the one side and the B party on the other. He, therefore, directed the A party and the B party to appear before Court on 30-7-1981. On 30-7-1981 the Court passed another order directing attachment of the property. A separate order was also passed on the same date appointing the Revenue Inspector, Poonjar Firka as the Receiver of the property. It is these three orders that are challenged in these proceedings. 4. On 30-7-1981 the Court passed another order directing attachment of the property. A separate order was also passed on the same date appointing the Revenue Inspector, Poonjar Firka as the Receiver of the property. It is these three orders that are challenged in these proceedings. 4. The contention put forward on behalf of the petitioners is that the orders passed by the Sub Divisional Magistrate are unsustainable in view of the fact that there is already an order of injunction in O. S. No. 24 of 1981 of the Sub Court, Kottayam, against the second respondent. It is further contended that the Sub Divisional Magistrate had no jurisdiction to initiate any proceedings under S.145 of the Code in view of the fact that the Land Tribunal has found that the petitioners are lessees and their application for purchase of the landlord's rights has been allowed. 5. On behalf of the respondents a contention has been raised that the revision petition is unsustainable in view of the fact that the preliminary orders passed by the learned Sub Divisional Magistrate are in the nature of an interlocutory order, and as such, S.397(2) of the Code of Criminal Procedure bars a revision petition. 6. Reliance was placed on a number of rulings, including the decision of the Supreme Court in Amar Nath v. State of Haryana, AIR 1977 SC 2185 ; Madhu Limave v. State of Maharashtra, AIR 1978 SC 47 ; and V. C. Shukla v. C. B. I., AIR 1980 SC 962 . In the first of these cases, the Supreme Court held, that the term "interlocutory order" in S.397(2) has been used in a restricted sense. It merely denotes orders of a purely interim or temporary nature, which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Count against that order, because that would be against the very object which formed the basis for insertion of this particular provision in S.397 of the 1973 Code. The Supreme Court further held, that orders which are matters of moment and which effect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court. 7. In Madhu Limave v. State of Maharashtra, AIR 1978 SC 47 , it was held, that an order impugning the rejection of the application challenging the jurisdiction of the Court to proceed with the trial, eventhough it may not be final in one sense, is not interlocutory so as to attract the bar of sub-s.(2) of S.397. The Supreme Court approved its earlier decision in Amar Nath v. State of Haryana, AIR 1977 SC 2185 , and held, that an order rejecting the plea of the accused on a point which when accepted, will conclude the particular proceeding is not an interlocutory order within the meaning of S.397(2). 8. Both the above decisions are seen discussed in the later case of the Supreme Court in V. C. Shukla v. C. B. I., AIR 1980 SC 962 . In that case the question arose as to whether an order framing a charge by a Special Judge appointed under the Special Courts, Act, 1979, was an interlocutory order within the meaning of S.11(1) of the Special Courts Act. The Supreme Court, after a detailed discussion as to the scope and interpretation of S.397(2), approved the earlier decisions in Amar Nath v. State of Haryana, AIR 1977 SC 2185 , and Madhu Limave v. State of Maharashtra, AIR 1978 SC 47 , but held, that in the particular case, no appeal lay in view of the non obstandi clause in S.11(1) of the Special Courts Act. The argument put forward on behalf of the petitioners, in the instant case, is that the rights of parties have been affected by the order passed by the learned Sub Divisional Magistrate, and therefore, the order that is passed should not be taken as an interlocutory order, and as such, the revision petition is maintainable. No doubt, there are rulings of this Court and other Courts to the effect that a preliminary order passed under S.145(1) is an interlocutory order. As such, the provisions of S.397(2) is a bar for entertaining an application for revision by this Court. No doubt, there are rulings of this Court and other Courts to the effect that a preliminary order passed under S.145(1) is an interlocutory order. As such, the provisions of S.397(2) is a bar for entertaining an application for revision by this Court. But, in the light of the decisions of the Supreme Court the above decisions need not be considered. There is no doubt that by passing an order under S.145 by attaching the properties and appointing a receiver thereof the Magistrate is interfering with the rights of parties; in the light of the decisions of the Supreme Court referred to above, such orders are not interlocutory orders, though they may be termed intermediate orders. There is a decision on the point by the Bombay High Court in Hasmukh J. Jhaveri v. Shelle Dadlani, 1981 Criminal Law Journal, 959. The above decision refers to the various decisions and the guidelines laid down by the Supreme Court in the decisions referred to, and held that an order under S.146 of the Code of Criminal Procedure attaching a property is not embraced by the term "interlocutory order". The reasoning in the above cases would apply and it has to be held that the revision petition is maintainable. 9. The further question is whether there are sufficient grounds for interference with the order passed by the Magistrate. On behalf of the petitioners it was contended that in view of the pendency, of the Civil suit, O. S. No. 240 of 1981 in the Sub Court, Kottayam, and also on account of the issue of a purchase certificate and patta in favour of the petitioners the present proceedings are not sustainable. 10. As regards the pendency of the civil proceedings, even according to the petitioners, the matter is only at the stage of interim injunction. The defendants in that suit had only entered appearance at the time when the proceedings were initiated and the application for injunction has not been disposed of finally, Under such, circumstances, the pendency of the civil suit may not be a ground for stopping the proceedings under S.145 of the Code of Criminal Procedure. (If any authority is needed see Saidali v. Executive Magistrate, Perintalmanna ILR 1971 (2) Kerala 483). 11. (If any authority is needed see Saidali v. Executive Magistrate, Perintalmanna ILR 1971 (2) Kerala 483). 11. It is no doubt, mentioned in the petition before this Court that the petitioners initiated S. M. Case No. 86 of 1978 before the Land Tribunal under S.72(c) of the Kerala Land Reforms Act and patta has been issued to the petitioners, and the petitioners paid the purchase price. It is also stated that an appeal is pending against the decision of the Land Tribunal. But even though such an averment has been made in the petition there are no records to show that a similar contention has been raised before the Sub Divisional Magistrate. On the other hand, in the petition filed by the B party No. 3 on 30th July, 1981 before the Sub Divisional Magistrate mention is made only of the pendency of O. S. No. 240 of 1981 and the issue of an ad interim injunction in that suit. The B party No. 3 only wanted the proceedings to be stayed due to the pendency of the above proceeding. No mention is seen made in the petition regarding purchase certificate or the claim made by the petitioners herein on the basis of S.29A of the Land Reforms Act. It is true that in a case where a tenant applies for preparation of record of rights or for the purchase of the right, title and interests of the land owner in respect of the land cultivated by him the pendency thereof is a bar for proceeding under S.145 of the Code of Criminal Procedure. See Sundra Pandiyan v. Narayana Kurup, 1972 KLT 858 , Koshy v. State of Kerala 1975 KLT 432 and Annakutty v. Zacharia, 1976 KLT 259 , The petitioners are not seen to have placed any material before the Sub Divisional Magistrate basing on S.29A of the Kerala Land Reforms Act. No documents are also available in support of the position now taken. Therefore, it is too early to say that the Sub Divisional Magistrate has no jurisdiction to pass a preliminary order under S.145(1) of the Code of the Criminal Procedure to attach the properties and appoint a receiver under S.146(1). It is no doubt open to the petitioners to place such materials before the Sub Divisional Magistrate and put forward the plea relating to bar under S.29A of the Land Reforms Act. It is no doubt open to the petitioners to place such materials before the Sub Divisional Magistrate and put forward the plea relating to bar under S.29A of the Land Reforms Act. But, in the absence of materials, this Court may not be justified in quashing the proceeding at this stage. 12. On the merits of the case the materials placed before the Sub Divisional Magistrate clearly indicate a dispute regarding possession. It is stated that criminal case have been registered against the rival groups. Therefore, it is not proper on the part of this Court to interfere with the order passed by the Sub Divisional Magistrate at this stage. It is perfectly open to the petitioners to put forward all the contentions before the Sub Divisional Magistrate and see that the order is cancelled. This petition is dismissed for the reasons mentioned.