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2002 DIGILAW 242 (JK)

Aijaz Ahmad Fazil v. Arshid Ahmad Maqdoomi

2002-07-30

R.C.GANDHI

body2002
1. This reference is made by the learned Sessions Judge, Budgam, recommending to set-aside the order passed by learned Chief Judicial Magistrate, Budgam, whereby proceedings under section 145 Cr.P.C. pending before him has been stayed till final disposal of the suit. 2. Proceedings under section 145 Cr.P.C. were instituted in February, 2000 before the learned Chief Judicial Magistrate Budgam. Alongwith the proceedings, an application under sub-section (iv) of Section 145 Cr.P.C. was also moved. The learned Chief Judicial Magistrate, after drawing the preliminary order on 29th February, 2000, attached the property in exercise of the powers under subsection (iv) of Section 145 Cr. P.C. Later on, vide order dated 26th June, 2000, the proceedings were dropped by the learned Chief Judicial Magistrate. The order of dropping of the proceedings was challenged by means of Revision Petition before the learned Sessions Judge, Budgam, who up-held the order. The said orders were challenged before this Court. This Court vide order dated 2lst December, 2000 set aside the orders of the trial court and the revisional court and directed the learned Chief Judicial Magistrate, Budgam, to decide the proceedings finally in accordance with law. Pursuant to the order of this Court the Learned Chief Judicial Magistrate proceeded to adjudicate the proceedings. 3. On 3rd July, 2001 the respondent herein moved an application for staying the proceedings on the ground that a suit with regard to the same property is pending and the civil court has passed interim direction of maintenance of status-quo. Objections to the application were filed by the petitioners herein. The learned Chief Judicial Magistrate, after considering the rival contentions, stayed the proceedings vide order dated 30th July, 2001. 4. Aggrieved by this order the petitioners, who have initiated the proceedings under section 145 Cr.P.C., challenged the order by means of Revision Petition before the learned Sessions Judge Budgam. The learned Sessions Judge, after hearing learned counsel for the parties and relying upon the Judgments cited before him, has recommended for setting aside the order of the learned Chief Judicial Magistrate observing that the jurisdiction of the Magistrate to proceed in the matter is not ousted because of the pendency of the civil suit. 5. Heard learned counsel for the parties. 5. Heard learned counsel for the parties. It is seen from the pleadings that this court vide order dated 21st December, 2001 directed the learned Chief Judicial Magistrate, after quashing the order, to finally dispose of the proceedings in accordance with law. The respondents thereafter instituted a suit with respect to land covered by survey Nos. 2345/165 whereas the proceedings under section 145 Cr. P.C. relate to survey Nos. 3355/ 140 and 3358/142. Thus the land in dispute in proceedings under section 145 Cr. P.C. and the civil suit is not the same. 6. Learned counsel for the respondents has submitted that the proceedings before the Magistrate cannot proceed unless there is a proper identification of the land. It is seen from the pleadings that there is no dispute with regard to the identification of the land. The land is identified by survey numbers. Him submission, therefore, has no substance. 7. Proceedings under section 145 Cr. P.C. cannot proceed if the civil court has passed some order deciding the rights of the parties with regard to its possession. Mere pendency of the suit or existence of an ad-interim direction directing maintenance of status-quo by the civil court in a suit instituted after the initiation of proceedings under section 145 Cr. P.C. does not debar the Magistrate to decide the proceedings. This preposition of law has been settled by this court in Ghulam Mohi-ud-Din and another V. Gani Joo and eight others reported in SLJ 1987 J&K 538 and Abdul Rashid Wani V. State reported in SLJ 1987 J&K 389. Dealing with the same preposition of facts and law, this court in para 6 of the judgment in Abdul Rashid Wani V. State (supra) held as under: - "6. It is true that the proceedings under section 145 Cr. P.C. are liable to be stayed or dropped if their rights have been adjudicated upon by a civil court or in a pending civil action temporary injunction or interim direction with respect to the subject matter of dispute had been issued by the civil court or the rights of the parties had been finally determined by any other competent court of jurisdiction under any particular statute. It does not, however, mean that a clever party to a litigation under section 145 Cr. It does not, however, mean that a clever party to a litigation under section 145 Cr. P.C. can defeat the provisions of law by initiating civil action after the Magistrate had taken the cognizance with respect to the property as contemplated under section 145 Cr. P.C. If the proceedings were held to be liable to be dropped merely on the ground of filing of a civil suit and obtaining an order of status-quo after the initiation of the proceedings under section 145 Cr. P.C., that would mean to render the provisions of section 145 Cr. P.C. redundant and non-existent. In the instant case an application was filed before the Superintendent of Police, Budgam by on Mohd Akram Wani with the prayer of initiating action under section 145 Cr. P.C. consequently upon which the police station, Budgam, submitted a petition in the court of Munsiff-Magistrate, 1st Class, Chadoora on 21.10.1986 with the submission that as there existed a dispute with respect to the property, proceedings under section 145 Cr. P.C. be initiated against the parties named in the said application. The Magistrate passed a preliminary order on 23.10.1986 by issuing notice to the parties to file their claims and objections in accordance with the provisions of law. It appears that Gh. Mohd Wani-and others filed a suit for permanent injuction against Mohd Akram Wani and others in the court of Munsiff, Chadoora on 30.10.1986 and filed an application for the grant of temporary injuction on 6.10.1986 when the Munsiff issued notice to the other side for filing objections and directed that the status-quo shall be maintained on spot till further orders. It clearly shows that no civil proceedings were pending nor any interim order issued against any one of the parties by a civil court when the preliminary order was passed. The trial Magistrate was, therefore, justified in proceeding with the case and passing appropriate orders in accordance with the provisions of law." 8. It is not in dispute that the civil suit was filed after the institution of proceedings under section 145 Cr. C.P. The interim direction issued by the civil court is directing the parties to maintain status-quo. The status-quo order does not decide the rights of the parties with regard to possession of the land. Such as ad-interim direction does not oust the jurisdiction of the Magistrate to proceed in the matter. C.P. The interim direction issued by the civil court is directing the parties to maintain status-quo. The status-quo order does not decide the rights of the parties with regard to possession of the land. Such as ad-interim direction does not oust the jurisdiction of the Magistrate to proceed in the matter. The order of the learned Chief Judicial Magistrate staying the proceedings, therefore, is not sustainable under law. The learned Sessions Judge has rightly appreciated the facts and the law while making recommendation for setting aside the order of the learned Chief Judicial Magistrate. I concur his findings and recommendation. 9. The reference is, accordingly, accepted and order of the learned Chief Judicial Magistrate, Budgam, is set-aside. He shall determine the proceedings as directed by this Court earlier vide order dated 21st December, 2001.