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Madhya Pradesh High Court · body

2019 DIGILAW 299 (MP)

Kirit v. Sawarna

2019-04-08

RAJENDRA KUMAR SRIVASTAVA

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JUDGMENT : RAJENDRA KUMAR SRIVASTAVA, J. 1. Petitioner has filed this criminal revision under Section 397 read with Section 401 of Cr.P.C. being aggrieved by order dated 07.03.2017, passed by 1st Additional Sessions Judge, Burhanpur in Criminal Revision No. 47/2016 arising out of order dated 08.08.2016 in Case No. 20/2015 passed by SDM, Burhanpur. The learned Revisinoal Court has stayed the proceedings under Section 145 of Cr.P.C. pending before SDM Burhanpur. Vide order dated 08.08.2016, SDM has rejected the application filed by respondent/applicant for staying the proceedings of 145 of Cr.P.C. 2. According to case, respondent has preferred an application before SDM Burhanpur contending that on 08.07.2016 respondent has received summons issued from 4th Civil Judge Class II, Burhanpur, which shows that petitioner has preferred civil suit before the Civil Court for the same subject-matter. Therefore, in view of the settled law, criminal proceedings under Section 145 of Cr.P.C. cannot be proceeded further. It is well settled principle of law that due to pendency of civil suit for same subject-matter, parallel proceedings of under Section 145 of Cr.P.C. cannot be proceeded analogously. She prays for staying the further proceedings of 145 of Cr.P.C. 3. In reply of the application filed by the respondent, it is contended that he has filed the suit for declaring the Will null an void, which is not relevant to subject-matter of this case. In the proceedings of 145 of Cr.P.C. only dispute of possession has to be determined, therefore, proceedings of Section 145 of Cr.P.C. can not be stayed. 4. Vide order dated 08.08.2016, after considering the contention of both the parties, the learned Sub Divisional Magistrate has decided the application and given the findings that due to absence of any stay order, proceedings of 145 of Cr.P.C. can not be stayed and he has fixed the case for further proceedings. Being aggrieved, respondent has challenged the same before 1st ASJ Burhanpur by filing revision petition bearing No. 47/16. In revision the learned Judge came to this conclusion that in civil suit, petitioner is seeking relief against the respondent for declaring Will null and void, declaration of his partition and also to permanent injunction, therefore, in view of the settled principle, proceedings under Section 145 of Cr.P.C. pending before the SDM Burhanpur, can not be proceeded continuously, till the decision of civil suit. Accordingly, the learned ASJ Burhanpur has granted stay in favour of respondent. Accordingly, the learned ASJ Burhanpur has granted stay in favour of respondent. 5. Learned counsel for the petitioner submits that the learned ASJ Burhanpur erred in passing the impugned order as the effect of Section 145 of Cr.P.C. has nothing to do with the pending civil suit. The Magistrate has empowered under the said provision to resolve the dispute regarding immovable property. The learned Revisional Court ignored this fact that the revisional power can not be exercised in relation to any interlocutory order. In this case, the order rejected by the SDM is interlocutory in nature and same can not be challenged in revision proceeding. Apart from that the civil suit filed by the petitioner is not for declaration of title and possession but for declaration that the purported Will is void and not binding on the petitioner. With the aforesaid submission he prays for allowing this petition. 6. Heard the submission of counsel for the petitioner and perused the case. 7. The first issue raised before this Court by the petitioner's counsel regarding maintainability of this petition. From perusal of order dated 08.08.2016, passed by Sub Divisional Magistrate, Burhanpur, it appears that the same is looking as intermediate or quashi-final order. There are some order which are neither interlocutory nor final in nature. They are termed as intermediate order or quashi-final order. If the order passed by the SDM, is reversed by the revisional Court then the further proceedings shall be proceeded according to civil suit and there will be nothing remains with the proceedings of 145 of Cr.P.C. Therefore, it can be said that the order passed by the learned SDM is not interlocutory in nature purely. Accordingly, revision petition is maintainable. 8. The counsel for the petitioner submits that he has filed the civil suit for declaring the Will null and void not for declaration of title and possession and the principle applied by the revisional Court shall be applied on the case of declaration of title and possession. From perusal of order, in para-12, the learned ASJ categorically mentioned that the petitioner is also seeking a relief for declaration of his partition with the permanent injunction. From perusal of order, in para-12, the learned ASJ categorically mentioned that the petitioner is also seeking a relief for declaration of his partition with the permanent injunction. In the case of Ramsumer Puri Mahant vs. State of U.P. (1985) AIR SC 472 the Hon'ble Apex Court has laid down the principle in respect of proceedings under Section 145 of Cr.P.C. while the civil suit for same subject-matter is pending. Principle is quoted as under:- “2............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 proceeding 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 dependency 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 allow 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. We leave it open to either party to move the appellate judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.” 9. Further, in the case of Jhummamal alias Devandas vs. State of M.P. (1988) 4 SCC 452 the Hon'ble Apex Court has explained the principle laid down in the case of Ramsumer Puri Mahant (supra) and distinguished the same. Further, in the case of Jhummamal alias Devandas vs. State of M.P. (1988) 4 SCC 452 the Hon'ble Apex Court has explained the principle laid down in the case of Ramsumer Puri Mahant (supra) and distinguished the same. The principle laid down in this case is also quoted as under:- “We fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer's case. The ratio of the said decision is that 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 mean that a concluded order under sec. 145, Cr.P.C. made by the Magistrate of competent jurisdiction be set at naught merely because the unsuccessful party has approached the civil court. An order made under sec. 145, Cr.P.C. 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. for 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.” 10. Having read of both the judgments, it is manifested that an order made under Section 145 of Cr.P.C. deals only with the factum of possession of the party as on a particular day. In the present case petitioner has initiated the proceedings of 145 of Cr.P.C. in respect of disputed land bearing block No. 45 plot No. 98/2 ad measuring area 2128 square fit and during the pendency of the same, he has preferred a civil suit in respect of the same land by seeking relief for declaring the Will null and void executed by one Magan Lal Patel, by which the respondent has expressed her right. In his reply, petitioner categorically stated that the suit filed by him is not for declaration for title and possession. From perusal of averments made in the plaint of civil suit, filed by the petitioner, it appears that the petitioner is seeking primary relief to declare the Will null and void. In his reply, petitioner categorically stated that the suit filed by him is not for declaration for title and possession. From perusal of averments made in the plaint of civil suit, filed by the petitioner, it appears that the petitioner is seeking primary relief to declare the Will null and void. As the principle has already been established that an order made under Section 145 of Cr.P.C. deals only with the factum of possession, therefore, proceedings of section 145 of Cr.P.C. made by the Magistrate can not be set at naught merely because the petitioner who has initiated the proceedings of 145 of Cr.P.C. has approached the Civil Court for seeking declaration of Will null and void. 11. Therefore, in view of the settled principle of law and looking to the circumstances of the case, this Court of the opinion that the learned Reivisonal Court erred in exercising its jurisdiction and the order passed by the Revisional Court deserves to be set aside. 12. Accordingly this revision petition is allowed and order passed by the learned Revisional Court dated 07.03.2017 in Criminal Revision No. 47/2016 is hereby set aside.