KHUNNI MAL v. MOHD. AAKIL — 1987 DIGILAW 1251 (ALL)

V. P. MATHUR, J. ( 1 ) THIS criminal revision is directed against the judgment and order dated 9/11/1987 passed by Mr. S. B. Vajsh, VIIth Additional Sessions Judge, Moradabad in Criminal Revision No 22 of 1986, the learned Judge set aside the order and judgment dated 17/12/1985, passed by the Sub-Divisional Magistrate, Bilari Moradabad in Criminal Case No. 34/11 under section 145 Cr. P. C. pertaining to police station Chandausi, district Moradabad. ( 2 ) BRIEFLY stated the facts of the case are that the dispute under section 145 Cr. P. C. related to a piece of land. In respect of the same land, a Civil Case No. 68 of 1980 had been filed by Tikam Sahai against Khunni Mal as Opp. party (now revisionist) and opposite party Nos. 1 to 4 as well as some other persons, In all there were 31 opposite parties in that civil suit. The plaint of that case has been placed on the record of this revision and it shows that the suit was for permanent injunction to restrain the defendants from interfering with the plaintiffs exercise of his right as tenant of the land in suit and his possession thereof and to restrain them from interfering with the plaintiffs door at points x and Y. The interim injunction was granted to the plaintiff on 19. 3. 1980 and then it was confirmed by order dated 31. 7. 1980. There is no dispute about these fact before me. After the passing of these orders, the present proceedings under section 145 of the Code of Criminal Procedure were started by Khunnimal, through a petition moved before the Sub-Divisional Magistrate, Bilari. The learned Magistrate passed the preliminary order and got the property attached and called upon both the parties to file their written statements. On 18. 8. 1981 Tikam Sahai now Opp. party No. 5 moved an application before the learned Magistrate (a certified copy of the same has been placed on the record before me), in which be took the stand that he had already filed an injunction suit No. 68 of 1980 against Khunnimal and others in which the land in dispute is involved and he has obtained from the lind Munsif Chandausi an order of injunction to restrain Khunnimal and others from interfering with his possession on this land. As such it was contended that Khunnimal had now no locus standi to initiate the proceedings under section 145 of the Code of Criminal Procedure and the proceedings being illegal, wrong and unwarranted may now be dropped. ( 3 ) THE learned Magistrate heard the parties and decided this petition by his order dated 12/10/1981. He rejected this petition bolding that the pendency of a civil suit was no bar to the continuance of the proceedings under section 145 Cr. P. C. Against this order of dismissal dated 12/10/1981 a revision was admittedly filed and was dismissed and now a petition under section 482 of the Code of Criminal Procedure being Misc. case No. 2155 of 1982 Tikam Sahai v. Khunnimal etc. is pending in the High Court. It is conceded that in those proceedings of section 482 Cr. P. C. also stay has been refused. With this background of the position Tikam Sahai moved another application this time on 1. 6. 85, almost with the same allegations that he had obtained an injunction in case No. 68 of 1980 from the Court of the Munsif, Chandausi on 19/3/1980, which was subsequently confirmed by the lind Additional Munsif on 31/7/1980 and the opposite parties including Khunnimal had been restrained from interfering with his peaceful possession of the property in question. This property is also in dispute in proceedings under section 145 Cr. P. C. It was contended that in view of the pendency of the civil case and the confirmation of the injunction order, with a view to avoid multiplicity of litigation and in the interest of justice, it is necessary that proceedings under section 145 Cr. P. C. should not continue. Reference is made to the case of Ram Sumer Pun Mahant v. State of U. P. ( 4 ) IN effect, the allegations in both these petitions are the same. The learned Magistrate rejected this application also by his order dated 17/12/1985. A revision was filed by Tikam Sahai against this order of rejection and this revision has been allowed, vide order dated 9. 11. 1987. Against this order Khunnimal has now come up through this revision. The learned Magistrate rejected this application also by his order dated 17/12/1985. A revision was filed by Tikam Sahai against this order of rejection and this revision has been allowed, vide order dated 9. 11. 1987. Against this order Khunnimal has now come up through this revision. ( 5 ) AT this stage of the proceedings I am not going to the merits of the matter whether the pendency of a civil suit will be sufficient to attract the application of the reported case of Ram Sumer Pun Mahant; and whether criminal proceedings under section 145 Cr. P. C. should be quashed. That is a matter which is sub-judice. In view of the petition under section 482 Cr. P. C. (case No. 2155 of 1982), this revision can be disposed of on a preliminary legal point. ( 6 ) IT is not disputed that although the provisions of the Code of Civil Procedure and specially those of section 11 of the Code of Civil Procedure do not apply in terms to criminal proceedings never the less, the principle of res-judicata is applicable even to criminal proceedings. This principle is based on the need of giving a finality to judicial decisions. Once a res becomes judicata, it should not be adjudged again. Primarily it applies as between past litigation and future litigation in a matter where a question of fact or question of law has been decided between the two parties in one suit or proceedings; and the decision is final either because no appeal was taken to a higher court or because the appeal was dismissed or because no appeal Jay, neither party can be allowed in subsequent proceedings between the same parties to canvass the matter again. This principle of res-judicata is embodied in relation to a suit in section 11 of the Code of Civil Procedure. But even where section 11 does not apply, the principle of res-judicata has been applied by the Courts for the simple purpose of achieving finality in a litigation. The result of this is that in the original Court as well as in higher court in any view the litigation should proceed on the basis that the previous decision was correct and that once the matter has been decided it should be agitated before the Higher Court and not before the same Court again. The result of this is that in the original Court as well as in higher court in any view the litigation should proceed on the basis that the previous decision was correct and that once the matter has been decided it should be agitated before the Higher Court and not before the same Court again. This principle of res-judicata applies also as between the two stages in the same litigation, to this extent, that a court, whether the trial court or a higher court, having at an earlier stage decided the matter in one way, will not allow the parties to re-agitate the matter again at subsequent stages of the same proceedings. ( 7 ) THIS being the basic concept of law, when we peruse the papers on the record and the judgment, we find that the same question of the dropping of the proceedings under section 145 of the Cr. P. C. (criminal case No. 34/11 of 81) was agitated by application dated 18. 8. 81 moved by Tikam Sahai. The basis of this contention was the pendency of an Injunction in Civil Suit No. 68 of 1980, the passing of the interim injunction order and its confirmation and it was also contended that since the civil proceedings are going on and injunction has been confirmed the criminal proceedings under section 145 Cr. P. C. initiated by Khunnimal are illegal, wrong and unwarranted in the eye of law, and are liable to be dropped. ( 8 ) THIS petition as I have already mentioned was disposed off on 12. 10. 1981 and a revision filed against that order of the Magistrate has also been dismissed. Of course the matter has been agitated before this Court in proceedings under section 482 Cr. P. C. but that is a different point and need not be considered here because any decision that is made in that case under section 482 Cr. P. C. will bind the parties and will have effect. The point that is involved now is whether the same agitation can be allowed to be raised on the same pleas. A perusal of the second application dated 1. 6. 85 moved by Tikam Sahai will also clearly show that his prayer was that the proceedings under section 145 Cr. P. C. will bind the parties and will have effect. The point that is involved now is whether the same agitation can be allowed to be raised on the same pleas. A perusal of the second application dated 1. 6. 85 moved by Tikam Sahai will also clearly show that his prayer was that the proceedings under section 145 Cr. P. C. should be dropped because of the pendency of an injunction civil suit No. 68 of 1980 in which he bas obtained an injunction order against Khunnimal and others and this injunction order has been confirmed on 31. 7. 1980. In the last paragraph he says that in order to avoid multiplicity of litigation parallel proceedings should not be allowed to continue. Basically the two applications are with the same allegations and for the same relief and once the first application has been dismissed the same should not be allowed to be agitated before the same Court. The learned Addi. Sessions Judge was wrong in allowing the revision No 22 of 1986. He should have dismissed it on the application of the principle of res-judicata. This order of the learned Sessions Judge cannot be upheld. ( 9 ) IN the result the revision is allowed. The order passed by the learned VII Addi. Sessions Judge, Moradabad on 9/11/1987 in Criminal Revision No. 22 of 1986 is set aside. I will like to make it absolutely clear that this order will not in any way effect the decision on merits of the petition under section 482 Cr. P. C. which decision will be binding on the parties and the Courts below. .