JUDGMENT - B.G. KOLSE-PATIL, J.:---The petitioners on the one hand and respondents No. 2 and 3 on the other, both claim to be the purchasers of the disputed premises in the building known as 'Khan House' on plot No. 106 T.P.S. III, 24th Road, Bandra, from respondent No. 1 who was doing the business of building-construction under the name and style of Khan Builders. The building in dispute consists of a basement and a ground floor plus five upper storeys. 2. Respondent No. 1 had executed an agreement of sale in favour of petitioner No. 1 in respect of the basement and the ground floor, on 31-3-1982. The said agreement was registered on 9-8-1984. An agreement in respect of the first floor was executed by him in favour of petitioner No. 2 on 31-3-1982 and was registered on 24-9-1984. The agreements respect of the second floor were executed by him in favour of petitioners 3 and 4 on 18-12-1981. Both the agreements were registered on 20-9-1984. Although the four agreements referred to above were registered in August and September 1984, the part payments were made under each of them by cheque on their dates of execution. Respondent No. 1 also executed an agreement for sale in favour of respondent No. 2 in respect of the ground floor and the basement on April 19, 1984. That agreement was registered on 15-7-1984 for the consideration mentioned therein. He executed two separate agreements in favour of respondent No. 3 in respect of the first and the second floors on April 16, 1984, registered on the same day. Two agreements in respect of the third floor were executed by him in favour of petitioners 5 and 6. In respect of the fourth floor two agreements we executed by him and register in favour of petitioners 7 and 8. Further two agreements were register in respect of the fifth floor in favour of petitioners 9 and 10. All these six agreements were executed on June 28, 1982 and registered on July 5, 1982. On February 6, 1983, respondents No. 1 wrote a letter to all the petitioners expressing his inability to complete the construction due to his financial difficulties and asked them to take over the possession of the incomplete building and also authorised them to get the construction completed by employing their own agencies. On February 6, 1983, respondents No. 1 wrote a letter to all the petitioners expressing his inability to complete the construction due to his financial difficulties and asked them to take over the possession of the incomplete building and also authorised them to get the construction completed by employing their own agencies. He further authorised them to spend the balance of the consideration for completing the construction. Accordingly, the petitioners took possession of the said building on the same day. The petitioners also held a meeting on March 9, 1982 in the office M/s. Nandlal Co. and authorised Mr. Nandlal to complete the work of the whole building and agreed to pay him for the same. The petitioners thus claim to be in possession of the entire building from 6th February, 1983. 3. Respondent No. 2 on the strength of the agreement referred to above claimed to be in possession of the basement and the ground floor as an owner. He also claimed to be in possession of the whole building of which he was to complete the construction. He filed a Short Cause Suit No. 5356 of 1984 in the City Civil Court at Bombay, and in the suit and ad interim injunction was granted by the Court on 28-8-1984 against respondent No. 1, from forcibly dispossessing him or in any manner interfering with his peaceful possession and enjoyment of the basement and the ground floor. He also preferred an application to the Senior Police Inspector, Police Station Bandra, requesting him to protect his possession of the basement and ground floor on the strength of the ad interim injunction. It may be noted here that in the said suit and in the application written to the police, respondent no 2 had asked for the relief only with regard to the basement and the ground floor. It is stated in the application that while he was protecting his possession in pursuance of the ad interim injunction , respondent No. 1 and petitioner No. 1 tried to dispossess him on September 13, 1984. It is stated in the application that while he was protecting his possession in pursuance of the ad interim injunction , respondent No. 1 and petitioner No. 1 tried to dispossess him on September 13, 1984. On the 15th September, 1984, respondent No. 2 filed an application before the Chief Metropolitan Magistrate, 9th Court, Bandra, under section 145(1) of the Cri.P.C. The learned Magistrate relying on the averments made in the application and then affidavit of respondent No. 2 passed a preliminary order under section 145(1) of the Criminal Procedure Code and kept the matter for hearing on October 12, 1984. An application was also made by him to the learned Magistrate on the same day under section 146 of the Criminal Procedure Code claiming exclusive possession of the entire building. On September 15, 1984, the whole property known as Khan House consisting of basement, ground and five upper storeys was sealed by the order of the Magistrate. Respondent No. 1 and petitioner No. 1 appeared in the Magistrate's Court and filed their say and affidavits. They also supported their say by the affidavits of their Architect, builder, masons and carpenters showing that the petitioners were in possession of the whole building. Respondent No. 3 preferred an application on October 8, 1984 in the same proceedings with a request for joining him as a party, which application was granted by the learned Magistrate on the same day. After considering the affidavits of the petitioners, the learned Magistrate rejected the application made by the petitioners for unsealing the premises. Against this order, the petitioners have filed this petition for quashing and setting aside of the learned Magistrate. 4. Respondent No. 2 has filed a comprehensive civil suit on the original side of this Court being Suit No. 3025 of 1984. Respondents No. 3 has also filed two comprehensive suits being Suit Nos. 3111 of 1984 and 3116 of 1984 in respect of the 1st and 2nd floors respectively. Respondent No. 2 had sought an interim relief in his suit by appointing a Receiver of the building and of staying the proceedings before the Magistrate. The reliefs were however not pressed. Respondent No. 3 had prayed for similar reliefs in his suits and the same were also rejected by this Court on December 14, 1984. Respondent No. 2 had sought an interim relief in his suit by appointing a Receiver of the building and of staying the proceedings before the Magistrate. The reliefs were however not pressed. Respondent No. 3 had prayed for similar reliefs in his suits and the same were also rejected by this Court on December 14, 1984. The ad interim injunction granted by the City Civil Court, Bombay in respondent No. 2's Suit No 5356 of 1984 was vacated in May, 1985 for non-prosecution. Hence, as the case stands today, no interim order is pending in any Court in respect of the said building. 5. Shri Paranjape, the learned Counsel appearing for the petitioners has submitted that in view of the ad interim injunction granted by the City Civil Court on August 23, 1984, there was no likelihood of the breach of peace on September 15, 1984. Hence the learned Magistrate erred in exercising his jurisdiction under sections 145 and 146 of the Cri.P.C. To support his contention, he relied on (Santosh v. State of Kerala)1, 1985 Cri.L.J. 759 ; (A.I.R. 1979 S.C. 1727)2, as well as unreported judgment of this Court in (Cr. Application No. 1009 of 1975)3, and (Cr. Application No. 771 of 1976)4. He vehemently submitted that the learned Magistrate should refrained from entertaining the application of respondents No. 2 under sections 145 and 146 of the Cri.P.C. It was further submitted by him, that the ex parte order passed by the Magistrate is arbitrary and against the principles of natural justice. According to him, the Magistrate was under an obligation to give a hearing to the petitioners before passing the ex parte order as the hearing was not expressly excluded by the statute. He supported this submission of his by relying on (M.A. Rahman v. State of Andhra Pradesh)5, 1981(2), Cri.L.J. 1219; (1977 Cri.L.J. 450)6, He further submitted that respondent No. 1 gave the possession of the incomplete building to all the petitioners on February 6, 1983. They, therefore, entrusted the construction work to Shri Nandlal Mehta. As such, all the petitioners were in possession of the disputed premises since February 6, 1983. It is emphatically stated by him that even today, the petitioners are in possession of the keys of all the floors and they have the list of the articles lying in the premises and in the locked cupboards kept therein. 6. As such, all the petitioners were in possession of the disputed premises since February 6, 1983. It is emphatically stated by him that even today, the petitioners are in possession of the keys of all the floors and they have the list of the articles lying in the premises and in the locked cupboards kept therein. 6. In view of the aforesaid submission of Shri Paranjape, on October 31, 1985 by consent of all the parties, I had appointed a Commissioner to take an inventory of the articles lying in the building. The Commissioner had submitted his report on November 2, 1985 which is on record. Shri Paranjape invited my attention to the said report which shows that practically the articles mentioned in the report are the same as those given in the petitioners' lists and hence he says that even on September 15, 1984, the petitioners were in possession of the whole building. 7. Shri Shirodkar, the learned Counsel for respondent No. 2 submitted that the letter dated February 6, 1983 purported to have been written by respondent No. 1 to all the petitioners and the letter dated 9th March, 1983 written by all the petitioners to M/s. Nandlal Co. are sham and are fabricated for the purpose of creating false evidence in this case. He stated that the petitioners were never in possession of the said building from February 6, 1983 onwards. According to him, respondent No. 1 has made a declaration and executed an agreement in favour of respondent No. 2 on April 19, 1984 wherein he has not made a mention either of this letter or of agreement in favour of the petitioners and, therefore, there is every possibility of this agreement being antedated. He further submitted that the dispute likely to cause the breach .of peace existed on September 15, 1984 as has been admitted by all the parties to the proceeding before the Magistrate and, therefore on September 15, 1984 also, the threat to the breach of piece existed when the Magistrate passed the order under section 146(1) of the Cri.P.C. He further submitted that basement and the ground floor were agreed to be sold to respondent No. 2 and he was in exclusive possession of them from the date of the agreement, and the rest of the building was in his possession for the purpose of completing the construction. He, therefore, submitted that on that account his application for interim relief and the plaint in the City Civil Court suit did not mention about his possession of the whole building. Even his application to the Police dated August 29, 1984 was restricted to the ground floor and the basement. As the respondent No. 1 had executed agreements in favour of several purchasers, unless the dispute is decided by a Civil Court of a competent jurisdiction, threat to the breach of peace will exist and, therefore, the order of the Magistrate should not be disturbed. He submitted that the Magistrate was justified in passing the ex parte order in the circumstances then prevailing in this case. 8. Shri Suresh, the learned Counsel for respondent No. 3 also supported the ex parte order on the ground that the situation was of an emergency and if the ex parte was not passed, there would have been a graver situation. He placed reliance on (Rajpati v. Bachhani)7, 83 Bom.L.R. 71, (1978 Cri.J. 365)8, (Cajitan A. D'Souza v. State of Maharashtra)9, 1977 Cri.L.J. 2032, (71 Bom.L.R. 83) and an unreported judgement of this Court in (Cr. Writ Petition No. 438 of 1983)10, for the purpose. 9. Since the petitions were heard by the learned Magistrate at the time of deciding their application for setting aside the order of sealing the premises, I do not feel that it is necessary for me to go into the question as to whether the learned Magistrate ought to have heard the petitioners before passing the ex parte order. Moreover, the petitioners have not challenged the ex parte order, but have approached this Court against the order of the Magistrate refusing to unseal the premises. 10. The main question therefore, that falls for consideration in this petition relates to the jurisdiction of the Magistrate to pass the orders under sections 145 and 146 of the Cri.P.C., when the litigation was pending in the Civil Court, in respect of the same property, The fact show that respondent No. 2 had filed a suit in the City Civil Court against respondent No. 1 and had obtained an ad interim injunction restraining him from forcibly dispossessing respondent No. 2 from the ground floor and basement. The said suit was filed prior to the submission of the application under section 145 of the Cri.P.C. 11. The said suit was filed prior to the submission of the application under section 145 of the Cri.P.C. 11. I am not prepared to accept the proposition of Shri Paranjape that whenever a Civil Suit is pending, the Magistrate will have no jurisdiction under sections 145 and 146 of the Cri.P.C. To accept such a general proposition would frustrate the very purpose of enacting the said provisions of the Cri.P.C. The intention behind enacting sections 145 and 146 of the Cri.P.C. is to prevent the breach of peace on account of the dispute between the rival claimants over any immoveable property by way of a stop-gap arrangement until the Civil Court takes charge of the dispute and grants the necessary reliefs. However, till the Civil Court gives such reliefs, the parties at dispute may cause a breach of peace and in such a situation, the Magistrate would be perfectly justified in exercising his jurisdiction under sections 145 and 146 of the Cri.P.C. The facts of the case reported in 1985 Cri.L.J. 759 show that there was already a decree of the Civil Court in a suit filed for possession and injunction. The facts of the Cri. Application No. 771 of 1976 also reveal that the Civil Court had issued a temporary injunction and the plaintiff therein had evicted the defendant after obtaining the order of injunction. It was observed by the learned Judge there, that at any rate, the defendant could approach Civil Courts and complain about his dispossession. In my view, therefore, a mere filing of a civil suit will not bar the jurisdiction of the Magistrate under sections 145 and 146 of the Cri.P.C. What is more, the issue regarding possession or dispossession as the case may be, should be directly pending before the Civil Court and have issued an order either temporary or permanent so as to oust the jurisdiction of the Magistrate under sections 145 and 146 of the Cri.P.C. A mere pendency of the suit without any interim order made therein, will leave the parties free to cause a breach of peace. In the present case, the parties to the suit were only respondents 1 and 2. The order of injunction was passed only against respondent No. 1 and that was also dissolved in May 1985. In the present case, the parties to the suit were only respondents 1 and 2. The order of injunction was passed only against respondent No. 1 and that was also dissolved in May 1985. Hence, whatever may be the situation on September 15, 1984, the threat to the breach of peace exists today and the order passed by the Magistrate on September 15, 1984 should continue in respect of the basement, the ground, the first and the second floors. However, there is no need to continue the said order in respect of the upper floors. As mentioned above, respondent No. 2 has restricted his suit and the application made to the police, to the ground floor and basement only. It was only while preferring the application under section 145 of the Cri.P.C. that he had claim to be in possession of the entire building. The agreement for sale executed in his favour by respondent No. 1 also pertains only to the ground floor and the basement. In the circumstances, I have no hesitation in observing that the claim of respondent No. 2 vis-a-vis upper floor is prima facie unfounded. 11. Respondent No. 3 has raised a dispute in relation to the first and the second floors only. It is, therefore, obvious that before me there is a dispute in respect of the basement, the grounds, the first and the second floors only. It is, therefore, unjust to keep the entire building sealed on account of this dispute. The concerned petitioners who have agreed to purchase the third, the fourth and fifth floors are therefore, free to exercise their right of possession in respect of the said floors. 12. In my opinion, the issue regarding the possession of these premises up to the second floor will have to be decided by the Magistrate in charge of the proceeding. Respondent No. 2 claimed to be in possession of the whole building for the carrying out the incomplete construction. At this stage, Shri Kulkarni, the learned Counsel appearing for respondent No. 2 submitted that his client has incurred expenses for executing the incomplete work. However, after going through the affidavit of respondent No. 1, I am not in agreement with Shri Kulkarni that respondent No. 2 has executed any incomplete work. Respondent No. 1 has, in the affidavit, stated that he executed the agreements in favour of respondent Nos. However, after going through the affidavit of respondent No. 1, I am not in agreement with Shri Kulkarni that respondent No. 2 has executed any incomplete work. Respondent No. 1 has, in the affidavit, stated that he executed the agreements in favour of respondent Nos. 2 and 3 only by way of guarantee to the loans advanced to him by them. This contention of respondent No. 2 is also supported by several circumstances on record. However, expressing any opinion regarding the agreements executed in favour of respondents 2 and 3 will amount to prejudicing their interests in the civil proceedings. I, therefore, direct the Magistrate that he shall direct the police to unseal the 3rd, 4th and 5th floors and hand over possession thereof to the respective petitioners. Petitioners Nos. 5 to 10 will not transfer, alienate or create any charge of any kind on their premises till the matter is finally decided by the Civil Court of a competent jurisdiction. In view of the rival claims in respect of the ground, the basement, the first and the second floors, I am directing the Magistrate to hear the matter and decide the same within two months from the date of the receipt of the writ, unless the parties obtain interim orders from the Civil Court. Shri Paranjape and Shri Kulkarni applied for leave to appeal to the Supreme Court. The applications are rejected. They also pray for the stay of this order. That prayer is also rejected. I have already directed the Magistrate to decide this matter within two months from the date of the receipt of the writ. In view of the notification of the order, the Magistrate is ordered separately to seal each tenement on the ground floor and the basement, the first and the second floors so that the access to the third, fourth and fifth floors will not be affected. The Court Commissioner is allowed to withdraw the deposit of Rs. 500/-. The petitioners are directed to deposit Rs. 250/- as an additional expenses of the Commissioner. This amount is also allowed to be withdrawn by the Commissioner. Order accordingly. -----