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2001 DIGILAW 100 (HP)

DINESH CHADHA v. STATE OF H. P.

2001-05-25

KAMLESH SHARMA

body2001
JUDGMENT Ms. Kamlesh Sharma, J.—The petitioner in this criminal revision is aggrieved by the order dated 11.5.1999 passed by the Sub Divisional Magistrate, Shimla (Urban) whereby shop in dispute is ordered to be opened and handed over to respondents 2 and 3 holding them "real user as well as possessor", till the final adjudication of the case. Accordingly, S.H.O., Sadar, Shimla was directed to hand over the possession of the shop to respondents 2 and 3 in the presence of Executive Magistrate (Tehsildar) Shimla (Urban) and prepare an inventory. It is also ordered that parties will be bound by any order passed by the Civil Court in the civil suit pending between them. 2. The brief facts of the case are that on receipt of Kalandra preferred by the Incharge, Police Post, Lakkar Bazar, Shimla, the Sub Divisional Magistrate started proceedings under Section 145 Cr.P.C. and passed order dated 15.3.1999 under sub section (1) of Section 145 Cr.P.C. summoning the petitioner and respondents 2 and 3 on 30.3.1999 and to put in written statement of their respective claims in respect of the fact of actual possession of shop No. 1-A Mina Bazar, Shimla over which they were having dispute which was likely to cause a breach of peace within the local limits of his jurisdiction.-The petitioner appeared on 30.3.1999 but instead of filing his written statement he submitted affidavits of the neighbours, whereas, respondents 2 and 3 filed the reply to the notices issued to them. The owner of the premises in dispute Smt. Jeeti Mumick preferred an application for impleading her as party in the proceedings and placed on record a copy of the order dated 18.3.1999 whereby interim order was passed against the petitioner restraining him from subletting shop No, 3 to any other person till the next date of hearing in the civil suit filed by her. In respect of shop No. 1-A, which is subject matter of the present revision petition, no order was passed for the reason that it stood already subject to respondents 2 and 3. Thereafter, Sub Divisional Magistrate heard the arguments of the parties on the point of "opening of the disputed shop" and passed the impugned order on 11.5.1999 and thereafter adjourned the case for filing reply by the petitioner. 3. Thereafter, Sub Divisional Magistrate heard the arguments of the parties on the point of "opening of the disputed shop" and passed the impugned order on 11.5.1999 and thereafter adjourned the case for filing reply by the petitioner. 3. A perusal of the impugned order shows that from the material on record the Sub Divisional Magistrate came to the conclusion that the petitioner had entered into a secret deal with respondents 2 and 3 with regard to sub-letting of shop No. 1-A in the year 1988 but in the beginning of this year respondent No. 1 (the present petitioner) broke the deal and tried to take possession forcibly from respondents 2 and 3 on 13.3.1999. Though, he has noticed that the petitioner had yet to file reply to the notice served upon him where after further proceedings would be carried on in accordance with law, yet he thought it proper to order handing over the possession of the shop in dispute in favour of respondents 2 and 3 as an interim measure. 4. Learned Counsel for the petitioner has urged that this order could not be passed without holding inquiry and taking decision that which of the party at the date of order passed under Section 145 Cr.P.C. was in possession of the shop in dispute, as envisaged under sub-section (4) of Section 145 Cr.P.C. Another submission made by the learned Counsel is that the Sub-Divisional Magistrate was required to abstain himself from passing the impugned order in view of civil suit pending between the parties in which interim order in respect of possession of the shop in dispute could be passed. 5. On the other hand, learned Counsel for respondents 2 and 3 have supported the impugned order. According to them, the impugned order has been passed after considering the material on record and on the insistence of learned Counsel for the petitioner that instead of waiting for the reply to be filed on behalf of the petitioner the arguments regarding the opening of the shop might be heard, as noticed by the Sub-Divisional Magistrate in para 3 of his order, though these observations do not find corroboration from the zimni orders. It is also submitted on behalf of respondents 2 and 3 that Sub-Divisional Magistrate has passed the impugned order after satisfying himself that respondents 2 and 3 were in possession in view of ad-interim order dated 18.3.1999 passed in civil suit titled Smt. Jeeti Mumick v. Dinesh Chadha, and there is no infirmity in it. 6. In order to appreciate the respective contentions of learned Counsel for the parties reference to the relevant provisions of Section 145 Cr.P.C. is desirable. It is : "145. Procedure where dispute concerning land or water is likely to cause breach of peace.—(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate, shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1)." 7. So far order dated 15.3.1999 passed under sub-section (1) of Section 145 Cr.P.C. summoning the petitioner and respondents 2 and 3 is concerned, no fault can be found with it. The dispute is with regard to the impugned order dated 11.5.1999, which is passed under sub-section (4) of Section 145 Cr.P.C. 8. The reading of this provision leaves no doubt that for passing order the Magistrate has to decide whether any and which of the parties was at the date of the order made by him under sub-section (1) in possession of the subject of dispute and this decision is to be taken on the basis of written statement filed, evidence produced and submissions made by the parties. In order to satisfy himself the Magistrate may take such further evidence as he thinks necessary. In order to satisfy himself the Magistrate may take such further evidence as he thinks necessary. Further, for arriving at his decision the Magistrate is not supposed to make reference to the merits or the claims of any of the parties to a right to possess the subject of dispute and he may treat a party in possession on the date of his order under sub-section (1) of Section 145 Cr.P.C. if it has been forcibly and wrongfully dispossessed within two months next before the date on which the police officer or other information was received by him or after that date and before the date of his order under sub-section (1), as explained in proviso to sub-section (4) of Section 145 Cr.P.C. 9. So far the case in hand is concerned, the petitioner is yet to file his written statement for which further opportunity has been given by the impugned order. The petitioner had filed only affidavits of his neighbours, whereas, respondents 2 and 3 had filed their replies to the notices issued to them and the owner of the premises in dispute had placed on record a copy of the order dated 18.3.1999 restraining the petitioner from sub-letting shop No. 3 till the next date of hearing in the civil suit filed by her, but the interim order in respect of shop in dispute was refused on the ground that it stood already sub-let to respondents 2 and 3, Without asking the petitioner to file his reply and parties to adduce their evidence in respect of possession the Magistrate proceeded to hear the arguments and pass the impugned order which was in clear violation of sub-section (4) of Section 145 Cr.P.C. The Magistrate was expected to proceed in accordance with law and should net have proceeded to hear the arguments regarding the opening of the shop which stood locked by the police and hand over its possession to respondents 2 and 3 without holding requisite enquiry, even if the Counsel for the petitioner had made such a prayer. 10. It is correct that this Court need not enquire into the sufficiency of material before the Magistrate on the basis of which he had passed the order as held by the Supreme Court in R.H. Bhutani v. Miss Mani J. Desai and others, AIR 1968 SC 1444. 10. It is correct that this Court need not enquire into the sufficiency of material before the Magistrate on the basis of which he had passed the order as held by the Supreme Court in R.H. Bhutani v. Miss Mani J. Desai and others, AIR 1968 SC 1444. But if order is hot passed after following the procedure laid down in law, as in the present case, this Court can definitely interfere in exercise of its revisional powers. 11. The impugned order is not sustainable on another point that the moment it was brought to the notice of the Magistrate that civil litigation was initiated in respect of the shop in dispute he was required to abstain himself from passing any order and should have directed the parties to get appropriate relief from Civil Court. Besides, the civil suit filed by the landlord in which interim order dated 18.3.1999 Was passed, as discussed hereinabove, admittedly, respondents 2 and 3 had also filed suit for permanent perpetual prohibitory injunction restraining the petitioner from interfering with their possession of the shop in dispute and also from dispossessing them otherwise than in due course of law, which was pending on the date the impugned order was passed. Respondents 2 and 3 had also filed an application under Order 39 Rules 1 and 2 CPC for interim order which has been decided on 17.5.2001 in their favour restraining the petitioner from interfering in their possession of shop in dispute during the pendency of the suit, But perusal of this order shows that for coming to this conclusion the Civil Court was swayed by the impugned order of the Magistrate whereby the possession of the shop in dispute was handed over to respondents 2 and 3. In these present proceedings this Court need not comment on the order dated 17.5.2001. But it is clear that by not directing the parties to get appropriate relief from the Civil Court and by passing the impugned order in a haste without proper enquiry as envisaged under sub-section (4) of Section 145 Cr.P.C. the cart is put before the horse, as the Civil Court has passed the order on the basis of the order of the Criminal Court, whereas, it was required to be otherwise. 12. 12. By now it is well settled that since the Magistrate under Section 145 Cr.P.C. is not supposed to decide a partys title or right to possession the life of the said order is co-terminous with the passing of the order or decree by the Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. (See : Bhinka and others v. Charan Singh, AIR 1959 SC 960 and Jhunamal alias Devandas v. State of Madhya Pradesh and others, AIR 1988 SC 1973). The moment Criminal Court comes to know that the parties have gone to Civil Court in respect of the property which is subject matter of proceedings under Section 145 Cr.P.C. it should withdraw its hands from passing any order in respect of giving possession thereof and direct the parties to get appropriate relief from the Civil Court. 14. In the result this Court finds merit in the present petition which is accepted and the impugned order dated 11.5.1999 passed by the Sub Divisional Magistrate, Shimla (Urban) is set aside and the status quo ante as on 11.5,1999 is ordered. However, it will be subject to the order passed in the civil litigation between the parties. The Sub Divisional Magistrate is directed to proceed with the case pending before him in accordance with law. It is made clear that any observation made in this order will not adversely affect the case of the parties in the civil litigation pending between them. No costs Petition allowed.