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2004 DIGILAW 462 (ORI)

Sana Baral v. S. B. Mohanty

2004-10-15

A.K.PARICHHA

body2004
JUDGMENT A. K. PARICHHA, J. — In this revision application the petitioners have challenged the order dated 31.12.2002 passed by the learned Executive Magistrate, Nimapara in Criminal Misc.Case No. 187/01 holding that the proceedings under Section 145 of the Code of Criminal Procedure (in short, “the Cr.P.C.”) initiated on the basis of Non-F.I.R. No.49/2001 of Konark Police Station is maintainable. 2. Opposite party No.1 initiated a proceedings u/s. 144, Cr.P.C. on the basis of a report submitted by I.I.C., Konark Police Station and issued notice to the petitioners to appear and file show-cause. In response, the petitioners filed their show-cause alleging the maintainability of the proceedings on the ground that the lands in question are joint family properties and preliminary decree has been passed by the competent Civil Court in T.S. No.11/121 of 1988/83 declaring that opposite party No.2 is entitled to 1/3 share of the suit properties and final decree proceeding is pending for carving out the shares. Opp.party No.1, however, rejected this plea of the petitioners and held that in spite of the order of the Civil Court and in spite of pendency of final decree proceeding, the proceeding u/s. 145, Cr.P.C. is maintainable. Aggrieved by the said order, the petitioners have filed this revision. 3. Mr. A. K. Mohanty, learned counsel for the petitioners submits that during pendency of a civil litigation involving title and possession of a land between the parties a proceedings u/s. 145 Cr.P.C. is not maintainable between the same parties for the same landed property. In support of his contention he relies on a number of decisions of the Supreme Court and this Court. As against this submission Mr. D. N. Mohapatra, learned counsel for the opp.party No.2 submits that the purpose of a proceedings u/s. 145, Cr.P.C. is to deal with a situation involving apprehen¬sion of breach of peace between the parties and so pendency of a civil litigation between the parties for the property cannot ipso facto bar a proceedings u/s. 145, Cr.P.C. 4. D. N. Mohapatra, learned counsel for the opp.party No.2 submits that the purpose of a proceedings u/s. 145, Cr.P.C. is to deal with a situation involving apprehen¬sion of breach of peace between the parties and so pendency of a civil litigation between the parties for the property cannot ipso facto bar a proceedings u/s. 145, Cr.P.C. 4. The issue as to whether a proceedings u/s. 145, Cr.P.C. can be maintained when civil litigation is pending between the parties for the self-same property was analysed by the Supreme Court in the cases of Ram Sumer Puri Mahant v. State of U.P. and others (AIR 1985 SC-472), Amresh Tiwari v. Lalta Prasad Dubey and another ( AIR 2000 SC 1504 ), Ranbir Singh v. Dalbir Singh and others ( AIR 2002 SC 1500 ) and by this Court in the cases of Arjun Ch. Samal and others v. Ananta Ch. Dash and others (1992) (II) OLR 302), Radhamohan Panda and others v. Brundaban (1986 (I) OLR 586), Basanta Kr. Sahoo and another v. Ruksen Sahoo (1989 (II) OLR 308), Dhirendranath v. Niranjan (1989 (II) OLR 495), Choud¬hury Prafulla Kumar Das and another v. Lingaraj Rath and another* (1991) 4 OCR 145 and several other cases. In all these cases the uniform observation is that when dispute relating to property is pending in Civil Court involving question of title and possession and the parties can approach the Civil Court for any interim relief like injunction, appointment of receiver, continuation of a proceedings u/s. 145, Cr. P.C. for the self-same property is improper. In the case of Amresh Tiwari (supra) the Division Bench of the apex Court clarified the position stating thus : “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.” 5. 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.” 5. This principle has been reiterated in several cases by this Court also. So the legal position settled in this regard is that a 145 Cr.P.C. proceedings is not maintainable when civil litigation is pending in a competent Court between the same parties involving question of possession and title of the proper¬ty and the Civil Court in session is competent to pass orders regarding protection of the property. 6. Mr. Mohapatra, learned counsel for opp.party No.2 submits that the title suit between the parties has already been disposed of long back and so no civil litigation is pending at the moment between the parties for the property in question. According to him, when no civil litigation is pending, the pro¬ceedings u/s. 145 Cr.P.C. would be maintainable. Mr. Mohanty, learned counsel for the petitioners, on the other hand, submits that although preliminary decree has been passed in T.S. No.11/121 of 1988/83, the final decree proceeding is still pend¬ing between the parties and final decree proceedings being con¬tinuation of the suit, proceedings u/s. 145, Cr.P.C. is not maintainable. In this regard, he relies on some rulings of this Court in the cases of Chandrasekhar Raula v. Gangadhar Raula and others (AIR 1997 Orissa 28) and Bhagabati Sahu and others v. Trilochan Sahu and after him Lakhpati Sahu and others, 1989 (II) OLR 174. In the former case it was observed that a final decree proceedings must follow a preliminary decree proceedings where the question of division of specific moveable and immoveable property is concerned and unless this is done, the party cannot enjoy the specific share allotted to them and so the final decree proceedings is simply an extension of the suit for partition. In the latter case it was observed that in a suit for partition even after passing of the preliminary decree, the suit itself contin¬ues to be pending unless the final decree is passed and that the Court may take into consideration of the subsequent events from time to time and the suit is deemed to be pending till final decree is passed. 7. 7. In the present case a suit bearing No.11/121 of 1988/83 was filed by opp.party No.2 in the year 1997 in the Court of Addl. Civil Judge (Sr. Division), Puri and the suit was decreed in part on contest allotting 1/3 share in the suit property to opp.party No.2 and for carving out the respective shares of the parties final decree proceedings is now going on and during the pendency of the final decree proceedings, opp.party No.2 filed the proceedings under Section 145, Cr.P.C. before the Executive Magistrate indicating that there is apprehension of breach of peace for the possession of the disputed land (which was also a part of the schedule land of the civil suit). From the case of the parties, it is clear that the property in question is joint family property and preliminary decree has been passed indicating the share of the parties. But final decree proceedings is pending for demarcating the share of the parties. So, the property still continues to be the joint family property. In case the joint family property where parties are still in joint possession, a proceeding under Section 145, Cr.P.C. cannot be initiated at the instance of one of the parties (1987 (II) OLR 534 (Purna Chandra Biswal v. Brindaban Biswal and others). So the proceedings u/s. 145, Cr.P.C. at the instance of opp.party No.2, who is one of the members of the joint family was not maintainable, particularly when final decree proceedings for carving out the share of the parties is still pending. 8. It is worthwhile to note that opp.party No.2 had filed a title suit bearing No.83/77 in the Court of Civil Judge (S.D.), Puri involving present disputed property and the said suit was dismissed. He had filed one Misc. Case bearing No.174 of 1983 in O.S. No.12/83 under Order 39,Rules 1 & 2, C.P.C. to restrain the present petitioners and had also filed another Misc. Case bearing No.175/83 under Order 40 Rule 1, C.P.C. for appointment of receiver in respect of the suit properties. But those prayers were rejected by the Court. On 15.3.1985 he then filed one pro¬ceedings u/s. 145, Cr.P.C., vide Misc. Case No.486 of 1984 and there the Magistrate ordered for delivery of standing and har¬vested crops to the petitioners. Case bearing No.175/83 under Order 40 Rule 1, C.P.C. for appointment of receiver in respect of the suit properties. But those prayers were rejected by the Court. On 15.3.1985 he then filed one pro¬ceedings u/s. 145, Cr.P.C., vide Misc. Case No.486 of 1984 and there the Magistrate ordered for delivery of standing and har¬vested crops to the petitioners. In 1983 opp.party No.2 again filed criminal proceedings u/s. 144 Cr.P.C. against the petition¬ers and the learned Executive Magistrate refused to declare his possession over the land as he had already approached the Civil Court. In 1993 opp.party No.2 again filed criminal proceedings u/s. 144, Cr.P.C. against the petitioners vide Misc. Case No.163 of 1993, but the proceedings was dropped. Opp.party No.2 then filed Criminal Misc. Case No.292 of 2000 u/s. 145, Cr.P.C. but the same was also dropped. After all these cases, he had filed the proceedings u/s. 145 Cr.P.C., which is now the subject-mater of this revision. 9. The above noted incidents indicate that the opp.party No.2 has been filing proceedings under Sections 144 and 145, Cr.P.C. since 1989, but the Executive Magistrate has never declared his possession as the property in question is joint family property and as the civil litigation is pending between the parties. During pendency of civil litigation if there is apprehension of breach of peace or problem regarding proper preservation of the suit property, then interim relief can be sought for before the Civil Court by way of injunction or by way of appointment of receiver etc. When provision for interim relief is available before the Civil Court, the parties of a civil litigation involving question of title and possession cannot take recourse to a proceedings u/s. 145, Cr.P.C. Without appreciating the aforesaid legal position and the factual aspects, the learned Executive Magistrate in the impugned order simply held that the proceedings u/s. 145, Cr.P.C. is maintainable. The order is neither in accordance with the settled provisions of law nor it is in tune with the facts and circumstances of the case. Such order is, unsustainable and must be vacated. 10. In the result, therefore, the revision is allowed. The impugned order is set aside and the 145 Cr.P.C. proceedings in Criminal Misc. Case No. 187/2001 in the Court of the Executive Magistrate, Nimapara is held to be not maintainable. Such order is, unsustainable and must be vacated. 10. In the result, therefore, the revision is allowed. The impugned order is set aside and the 145 Cr.P.C. proceedings in Criminal Misc. Case No. 187/2001 in the Court of the Executive Magistrate, Nimapara is held to be not maintainable. The learned Executive Magistrate, Nimpara is directed to drop the 145 Cr.P.C. Proceedings and to discharge the R.I. from receivership of the disputed land in question. Revision allowed.