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1990 DIGILAW 166 (RAJ)

Dinesh Chander v. State Of Rajasthan

1990-02-22

SOBHAG MAL JAIN

body1990
JUDGMENT 1. - This revision has been filed by Dinesh Chander again-at the order of the Additional District Magistrate, Udaipur City, Udaipur, dated August 17, 1988 directing attachment of the shop (Garrage) situate at 16 Bhamashah Marg, Udaipur, and appointing the Station House Officer, Udaipur, as its receiver. 2. Dinesh Chander claims to be the tenant of the shop and urges that Vijay Singh wants to evict him unlawfully from the said shop. Respondent No. 2, on the other hand, maintains that Dinesh Chander is a trespasser and has forcibly occupied the garrage. Finding that there was apprehension of breach of peace between the parties the Station House Officer on July 22, 1988, filed a complaint Under Section 17, 116 & 145 Cr. PC in the Court of Additional District Magistrate, Udaipur City, Udaipur. A preliminary order was drawn on July 23, 1988. Subsequently, the learned Magistrate by the order dated August 17, 1988, directed that the property be attached and appointed the Station House Officer as receiver Dissatisfied with this, the petitioner has filed the present revision in this Court. 3. Learned Counsel for the petitioner has contended that civil proceedings in respect of the said shop are pending in the Court of Munsif & Judicial Magistrate, Udaipur. In those proceedings the learned Munsif on the application of the petitioner passed an order on 4-8-1988, directing status quo to be maintained and subsequently, on December 8, 1988, after hearing both the parties issued a temporary injunction in favour of the plaintiff restraining the defendant from interfering with the petitioner in the said shop. Learned Counsel urges that when civil proceedings are pending and the regular civil court was seized of the matter the learned Magistrate ought to have stayed his hands. The Criminal Court are expected to respect and give regard to the orders of the Civil Courts passed in regular civil proceedings. 4. I find force in the contention raised by the counsel for the petitioner. This matter had earlier came before N. C. Sharma, J. on January 4, 1989 The following order was passed on that date by Sharma. J. "During the course of arguments, Mr. M M. Singh viurged that the petitioner was a tenant of non-petitioner No 2 in the disputed premises. It was pointed out that the petitioner had filed a Civil Suit against the non-petitioner No 2 for permanent injunction. J. "During the course of arguments, Mr. M M. Singh viurged that the petitioner was a tenant of non-petitioner No 2 in the disputed premises. It was pointed out that the petitioner had filed a Civil Suit against the non-petitioner No 2 for permanent injunction. In that suit a temporary injunction had been issued by the Civil Court on August 4, 1988, directing maintenance of status quo. The interim order was finally made absolute on December 8, 1988, and the non-petitioner No. 2 was restrained by temporary injection from interfering in the possession of the suit premises. Mr. Singh viurged that when the matter relating to the possession and tenancy of the petitioner relation to the premises in question is pending in a Civil Court has issued a temporary injunction. Against the non-petitioner No 2 the order. of the Additional District Magistrate, Udaipur City, dated August 17, 1988 appointing a Receiver over over the property in question should be quashed. Mr. M.C. Bhandari in his reply stated that non-petitioner No. 2 has filed an appeal before the District Judge, Udaipur against the order dated December 8, 1988, and that appeal is fixed for arguments on 20th January 1989. Since the order granting temporary injunction dated December 8, 1988 is subject matter of appeal before the District Judge, Udaipur who has obviously to examine the prima facie case of the petitioner, it would be better if this petition is heard after the District Judge, Udaipur, has decided the appeal filed by non-petitioner No. 2 against the order of the Munsif Udaipur City on December 8, 1988, granting a temporary injunction. Either of the parties will move this Court as soon as the District Judge decides the appeal and on their doing so, the matter may be listed atonce for hearing and final disposal. In view of the nature of dispute between the parties it is hoped that the District Judge Udaipur will decide the appeal expeditiously. 5. Subsequently, the appeal filed by respondent No. 2 before the District Judge was dismissed by the order dated April 21, 1989. The matter was brought, in revision before this Court. This revision has also been dismissed by me today. 6. 5. Subsequently, the appeal filed by respondent No. 2 before the District Judge was dismissed by the order dated April 21, 1989. The matter was brought, in revision before this Court. This revision has also been dismissed by me today. 6. The position is that there exists in favour of the petitioner an order passed by the Munsif in a regular Civil Suit, whereby the defendant (Respondent No. 2 here in) has been restrained from interfering with the possession of the petitioner in the suit shop. The position of law is well settled that the orders passed by n criminal proceeding as regards the rights of the parties are co-terminus with the orders--Whether temporary or final--passed by the Civil courts in regular proceeding. The Courts have also held that when a civil litigation is pending and the question of possession is involved there, the justification of criminal proceedings would not be justified. 7. In Ram Sumer Pusi Malant v. State of U.P., AIR 1985 SC 472 The Supreme Court has laid down: "When a civil litigation is pending for the property where in the question of. Possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding Under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before Under Section Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a degree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quash-ed. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quash-ed. We accordingly allow the appeal and quash the order of the learn-ed Magistrate by which the proceeding Under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if no advised, in the event of dispute relating to possession". In Sajjan Singh v. Sajjan Singh, 1970 UJ (SC) 75 , the Supreme Court directed the Sub-Divisional Magistrate not to disturb the possession of the petitioner therein so long as the temporary injunction was outstanding. 8. In Jhumamal v. State of M.P., 1988 (3) JT (SC) 479 also the Supreme Court has said: "We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Summer case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order Under Section 145 Cr.PC made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil court. An order made Under Section 143 Cr.PC deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The un-successful party therefore must get relief only in the civil court. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached. 9. In the present case, the question of possession which is the subject matter of dispute in the criminal proceedings Under Section 145 Cr.PC. it also pending adjudication in the Civil suit before the Munsif, Udaipur. The learned Munsif is seized of the entire matter and has passed appropriate orders. 9. In the present case, the question of possession which is the subject matter of dispute in the criminal proceedings Under Section 145 Cr.PC. it also pending adjudication in the Civil suit before the Munsif, Udaipur. The learned Munsif is seized of the entire matter and has passed appropriate orders. Whatever interim orders are needed by the parties the same may be obtained from the Court of the learned Munsif. The proceedings Under Section 145 Cr. PC are meant to meet certain situations. The orders passed in criminal proceedings affecting rights of the parties must yield and give way to the orders passed by the Civil Courts in regular proceedings. If the orders passed in criminal proceedings conflict with those passed by the Civil court the later shall prevail. In my view, now that the Civil Court is seized of the matter, it would serve no purpose and would not be prudent allow the present proceeding Under Section 145 Cr.PC to continue any more. 10. I, accordingly, allow the revision and quash the order of the Additional District Magistrate dated 17-8-1988. I also direct that the proceedings Under Section 145 Cr.PC pending before the Additional District Magistrate (City), Udaipur in respect of the disputed shop shall stand quash-ed. The Receiver appointed by the Additional District; Magistrate is discharged and the possession of the disputed shop (garrage) shall be. restored back to the petitioner. It will be open to the defendant to move the Civil Court for vacation or modification of the order dated December 1, 1988, after he has filed the written statement in that Civil suit.Revision allowed. *******