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2000 DIGILAW 149 (GAU)

Ashok Kumar Agarwala v. Baljit Singh

2000-04-11

P.G.AGARWAL

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Heard Mr. RL Yadav, learned counsel for the petitioners and Mr. JM Choudhury, learned counsel for the respondent. 2. The facts in brief are that on an application filed by the respondent 1st party, a proceeding under section 144 CrPC was drawn up in respect of a plot of land measuring IK Blout of 14 K10L covered by Dag no. 1211 of Patta No.48 situated at Lanka Town under Mouza Lanka and bounded by North - PWD Road, South - Heirs of Dinesh Dutta, East - Noorjhan Hotel and land of late Rajendra, West - Bhagwatilal Agarwal, herein after referred as the D/L. The said proceeding under section 144 CrPC was converted to a proceeding under section 145 CrPC and the D/L was attached, by a common order dated 1.2.92. Thereafter oil 19.2.92 the respondent 1st party informed the Court that he has instituted a civil suit in respect of the D/L. Learned Executive Magistrate thereafter vide impugned order dated 19.2.92 dropped the proceeding under section 145 CrPC. The petitioner 2nd party has filed the present revision challenging the impugned order of dropping the proceeding. 3. There is no dispute at the Bar that the proceeding under section 145 CrPC is the subject matter for consideration in the civil suit filed by the 1st party. In view of the decision of the Apex Court in the case of Ram Sumer Puri Mohan vs. State of UP reported in AIR 1985 SC 472 , learned counsel for the petitioner submits that the facts of the case of Ram Sumer Puri Mohan (supra) was different as this is a suit based on title and possession. In the present case the civil suit filed by the 1st party is for declaration of plaintiff's rightful possession and for permanent injunction restraining the petitioner 2nd party from dispossessing the plaintiff. The ratio laid down in Ram Sumer Puri Mohan (supra) is when a civil litigation is pending parallel criminal proceeding under section 145 CrPC will not be justified. Whether civil suit is for recovery of possession or for confirmation of possession, the question is immaterial, as because in both event, the civil Court has been called upon to decide the possession of the party. 4. Whether civil suit is for recovery of possession or for confirmation of possession, the question is immaterial, as because in both event, the civil Court has been called upon to decide the possession of the party. 4. Relying of Ram Sumer Puri Mohan (supra), this Court in the case of Smti Sushma Rani Das & others vs. Shri Ashutosh Das reported in (1990) 2 GLR 215 (1990 (2) GLJ 53) held that pendency of civil suit is a bar for drawing up proceeding under section 145 CrPC. 5. Learned counsel for the petitioner has relied on a decision of the Apex Court in the case of Jhunamal alias Devandas vs. State of MP & others reported in AIR 1988 SC 1973 . In the said case the Apex Court held : "It is true that in cases of dispute regarding immovable property 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 however mean that a concluded order under section 145 CrPC 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 145 CrPC 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 unsuccessful party therefore must get relief only in the civil Court. He may move the civil Court with properly constituted suit. 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.” 6. In the present case the proceeding under section 145 CrPC was at the initial stage and no decision or final order was passed. As it was not a concluded order under section 145 proceeding the ratio laid down in the above case is not applicable. In view of the pendency of the civil suit between the parties, there was no scope for allowing the proceeding under section 145 CrPC in MR Case No.8/92 to proceed further. The impugned order was just and proper and there I was no illegality. 7. In the result, the revision petition is dismissed.