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2004 DIGILAW 276 (HP)

LALIT SHARMA v. DR. JAGDISH SHARMA

2004-10-14

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J,—The petitioners have preferred the present petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) for quashing the proceedings under Section 145 of the Code pending in the Court of the learned Sub Divisional Magistrate, Gohar. 2. Brief facts leading to the filing of the present petition are that the respondents filed an application under Section 145 of the Code against the petitioners on the allegations that they had constructed their four storeyed new houses in Purana Bazaar Sundernagar and some portion of the old and new houses had been given on rent by both of them and remaining portion of the new construction is in their possession. On 17.5.2003 the respondents forcibly entered in the kitchen of their old house and locked their bath room. On 10.6.2003 the respondents forcibly locked the front door of the houses of the respondents and thus wrongfully dispossessed them and occupied the same without any right or title. On 21.5.2003 and 15.6.2003 F.I.Rs. were lodged at Police Station Sundernagar. The petitioners, however, tried to damage the house of the respondents and caused nuisance therein thus rendering the property of the respondents unsafe and that there is every likelihood of breach of peace because of the danger to the property. After recording the statement of one of the respondents the Sub Divisional Magistrate below came to the conclusion that a dispute had arisen and accordingly directed issue of notices to the petitioners to produce proof regarding possession of the houses. Pursuant to such notices, the petitioners appeared before the Court below and filed their reply. At the same time the Court below was informed of moving an application for transfer of the case in the Court of the learned Sessions Judge, Mandi. After considering the matter, the Court below observed that there was apprehension of quarrel between the parties and on 10.6.2003 a complaint under Section 107/151 of the Code had already been presented in the Court of the ADM Mandi in which personal bonds and surety bonds each in the sum of Rs. 2,000 had been taken and the matter had been referred to him for further action in the matter. Even thereafter the petition was received from the respondents about quarrel between the parties on 16 and 21.6.2003. 2,000 had been taken and the matter had been referred to him for further action in the matter. Even thereafter the petition was received from the respondents about quarrel between the parties on 16 and 21.6.2003. On the basis of these observations the Court below felt satisfied that the situation exists wherein there can be a quarrel between the parties at any moment resulting in loss of life and property and breach of peace. Therefore, the house constructed by the respondents was ordered to be sealed and regarding possession of the old house parties were directed to place their version before the Court on 15.7.2003. However, thereafter no further action could be taken by the SDM Sundernagar because the case alongwith the aforesaid proceedings under Section 107/150 of the Code stood transferred to the learned SDM Gohar. The substantial order so far passed by SDM Gohar in the proceedings is dated 8.12.2003 whereby the petitioners were proceeded ex parte in the proceedings and directions were given for sealing the unsealed portion of the house i.e. a kitchen and a bathroom in the ground floor and Tehsildar Sundernagar was directed to comply with the order. In the meanwhile, the petitioners have filed the present petition for quashing the proceedings on the grounds that the proceedings before the SDM are not maintainable because the respondents have already instituted three civil suits in the Court of the learned Sub Judge, Sundernagar vide Annexures P-7, P-8 and P-9 and in one of such civil suits orders to maintain status quo at the spot had been passed. It is claimed that the whole of the ancestral property is in the possession of the petitioners and one Jai Kishan, who is not a party to the proceedings and in view of the civil suits having been instituted, the proceedings under Section 145 of the Code are not maintainable, that the SDM below failed to appreciate the reply filed by the petitioners and arbitrarily proceeded ex parte to pass the orders for sealing the kitchen and bath room and that various types of criminal proceedings have been instituted by the respondents against the petitioners with a view to harass and pressurize them because of the pendency of the civil suits regarding the property in dispute. 3. The respondents despite ample time and opportunities failed to file reply. 4. 3. The respondents despite ample time and opportunities failed to file reply. 4. I have heard the learned counsel for the parties and have also gone through the records. 5. Before issuing the notice the Court below recorded statement of respondent Naresh Pal in respect of the allegations in the petition under Section 145 of the Code. In his statement Naresh Pal has stated that the petitioners had unlawfully occupied the house of the respondents and on enquiry they abused them and that earlier also they had occupied their old house forcibly. Thus, what prima facie emerges from his statement is that the respondents have been forcibly dispossessed. It is, however, no where stated by the respondent in his statement that the dispute is of the nature which is likely to result in breach of peace. Based on this material even the Sub Divisional Magistrate, Sundernagar vide his order dated 16.6.2003 came to the only conclusion that a dispute has arisen between the parties about the possession of the house. He does not conclude anywhere in his order that the dispute was of the nature which was likely to cause breach of peace. Even in the notice issued pursuant to the order dated 16.6.2003 there is no reference whatsoever to the apprehension of breach of peace. 6. The object of Section 145 of the Code is to maintain public peace and not to decide the disputes. The statutory obligation of the Executive Magistrate to maintain public peace within the framework of Section 145 of the Code is to the extent that with a view to maintain peace even the convenience and rights of the parties could be sacrificed. Thus, the main consideration for initiating proceedings under Section 145 of the Code is to maintain peace and tranqullity and prevent a breach of peace by maintaining one party in possession and forcing the other to go to the Court of competent jurisdiction to vindicate his right. In case where neither the party making a statement on oath claims that there is apprehension of breach of peace nor the concerned Executive Magistrate comes to a prima facie conclusion that the dispute which has arisen is of the nature which is likely to cause breach of peace, the proceedings under Section 145 of the Code could not be initiated and if initiated cannot be sustained. 7. 7. It is not in dispute that the houses about which the dispute exists between the parties are on Khasra Nos. 1457, 1458, 1461 and 1464, situate in Mohal Purana Nagar, Tehsil Sundernagar and even so is the position in view of the report of Tehsildar Sundernagar dated 25.6.2003 placed on the record. It is also not in dispute that Civil Suit No. 41-1/2002 had been instituted by respondents, Jai Kishan and Dhanjai against the petitioners and others for partition of the properties including the properties situate on the aforesaid khasra numbers and the allegations therein as per the copy of the plaint placed on the record are that the petitioners and others are trying to forcibly encroach upon the aforesaid land, therefore, the properties be partitioned. A perusal of the written statement filed by the petitioners in the suit, file whereof is attached with the record, show that the petitioners have denied the allegations of alleged interference but have admitted the claim in the suit for partition and have prayed for partition of the properties in accordance with law. This written statement makes it manifestly clear that the petitioners have no intention to grab the properties or share of the respondents. In any case, there is no bar in such suit to seek appropriate temporary injunction or appointment of a receiver if so warranted by the facts and circumstances of the case. Yet another suit had been instituted by said Jai Kishan, co-plaintiff with the respondents in the aforesaid Civil Suit, for permanent prohibitory and mandatory injunction being Civil Suit No.26-1/2000 in the Court of Sub Judge, Sundernagar. Third suit being Civil Suit No.21-1/2000 had been instituted by Dhanjai Sharma, father of the respondents and Jai Kishan Sharma against petitioner Hemant for permanent prohibitory injunction. The claims in the two suits are based on causing unlawful interference in the property in question by the petitioners. On the basis of the statement made by the counsel for the parties in Civil Suit No.21-1/2000 an order regarding maintaining the status quo qua the properties in dispute has been passed. The claims in the two suits are based on causing unlawful interference in the property in question by the petitioners. On the basis of the statement made by the counsel for the parties in Civil Suit No.21-1/2000 an order regarding maintaining the status quo qua the properties in dispute has been passed. Even in Civil Suit No. 26-1/2000, instituted by Jai Kishan, co-plaintiff with the respondents in Civil Suit No.41-1/2002, the petitioners have been restrained from raising construction over the land in question vide order dated 1.2.2000 by the trial Court as is evident from the record of the suit received with the records of the Courts below. 8. In view of the pendency of the aforesaid litigations and the interim orders passed, the proceedings under Section 145 of the Code cannot be allowed to continue in view of the settled position in law. 9. In Ram Sumer Puri Mahant v. State of U.P. and others [1985 (1) Supreme Court Cases 427], the Apex Court held as under:— "When a civil litigation is pending for the property wherein 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 us. 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 decree 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 quashed. We accordingly allowed the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached." 10. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allowed the appeal and quash the order of the learned Magistrate by which the proceeding under Section 145 of the Code has been initiated and the property in dispute has been attached." 10. In Amresh Tiwari v. Lalta Prasad Dubey and another (AIR 2000 Supreme Court 1504), the Apex Court held as under: "13. We are unable to accept the submission that the principles laid down in Ram Sumers case (AIR 1985 SC 472: 1985 Cri LJ 752) would only apply if the Civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue. "14. Reliance has been placed on the case of Jhummamal alias Devandas v. State of Madhya Pradesh reported in, (1988) 4 SCC 452: (AIR 1988 SC 1973 : 1989 Cri LJ 82). It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145, Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145, Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 Criminal Procedure Code would be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent Civil Court. Thereafter Section 145 proceedings were commenced. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent Civil Court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumers case (AIR 1985 SC 472 : 1985 Cri LJ 752) (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the Civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the Civil Court would be binding on the Magistrate." 11. In the case in hand, as already stated hereinabove that one of the suit for partition inter alia instituted by the respondents against the petitioners and others is pending in which the partition of the joint properties of the parties has been prayed for with a further prayer to put them in possession of their respective shares. In other words, the suit for separate possession of the shares by way of partition has already been filed. In such suit in case the possession of the properties as at present is required to be maintained or any damage to the properties as is the apprehension of the respondents as per the averments made in para-5 of their application under Section 145 of the Code, adequate interim relief in the suit can be prayed for. Apart from this, the orders, one status quo order and one restraint order qua the property in dispute which have been passed prior to the institution of the present proceedings are already operative against the petitioners. Any violation thereof can be adequately dealt with by the concerned Civil Court. 12. Apart from this, the orders, one status quo order and one restraint order qua the property in dispute which have been passed prior to the institution of the present proceedings are already operative against the petitioners. Any violation thereof can be adequately dealt with by the concerned Civil Court. 12. It is case of the petitioners that various Civil and criminal proceedings have been instituted by the respondents to harass and pressurize them and these averments as made in the petition are duly supported by affidavit. The respondents have despite ample opportunity not filed any reply affidavit to counter these averments. A perusal of the record reveals that apart from these proceedings under Section 145 of the Code, and the Civil Suits aforesaid, the respondents have lodged two FIRs and a complaint under Section 107/151 of the Code against the petitioners and in the latter proceedings the petitioners are stated to have been bound down to maintain peace. The pendency of all these litigations probabalise the averments of the petitioners that the respondents have initiated the proceedings against the petitioners with a view to harass and pressurize them. It is more so when the respondents have failed to controvert these averments by filing reply and counter affidavit. 13. In view of the above discussion, the petition under Section 145 of the Code and the proceedings taken and orders passed thereon are quashed. It is, however, left open to either of the parties to make appropriate application to the learned Civil Judge, Sundernagar in Civil Suit No. 41-1/2002 for adequate interim relief regarding possession of the disputed property, if so advised.