Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 497 (TS)

Kishore Singh v. State of Telangana, Rep. by its Principal Secretary

2020-06-22

A.ABHISHEK REDDY, RAGHVENDRA SINGH CHAUHAN

body2020
JUDGMENT : RAGHVENDRA SINGH CHAUHAN, J. 1. The appellants had challenged the legality of the order dated 21.04.2020, passed by a learned Single in W.P. No. 27616 of 2019. In the writ petition, the petitioners had made the following prayers:- “To issue a writ in the nature of Mandamus or any other appropriate writ direction or order declaring the inaction of respondent No. 3 for not providing the protection to petitioners and their tenants as illegal, arbitrary, and unconstitutional and consequently direct the respondent Nos. 1 to 3 to investigate the complaint made by the petitioner and take corrective steps to maintain peace.” 2. By order dated 21.04.2020, the learned Single Judge has observed as under:- “Having regard to the conclusions arrived by me as above, it is to be held that the petitioners are entitled to collect the weekly rents without any interference from the respondent Nos. 4 to 8 till such time the injunction order passed by this court in CMA No. 768 of 2009 subsists or as to the same having stood vacated is determined by the court of competent jurisdiction and further the interference from the respondent Nos. 4 to 8 on the pretext of the order in CMA having been vacated or the closure of Writ petition would confer a right on them to collect rents would not be a valid claim.” 3. For the sake of convenience, the parties, hereinafter, shall be referred to as they are arrayed in the writ petition. 4. The petitioners are the family members of one Sri. Narsingh Singh (since deceased). According to them, Narsingh Singh had purchased the land admeasuring 5,410 sq. yds. situated at Jumerath Bazar, Hyderabad, through an agreement of sale, dated 10.03.1991 from Sunder Singh. In accordance with the Clause-2 of the agreement of sale, possession of the property was handed over to Narsingh Singh. However, a controversy arose between Narsingh Singh, the then Municipal Corporation of Hyderabad, and Sunder Singh. Therefore, Narsingh Singh filed a civil suit, namely O.S. No. 4066 of 2006 on the file of III Junior Civil Judge, City Civil Court, Hyderabad. In the compromise entered between the parties, Sunder Singh had admitted the fact that he had sold the subject property to Narsingh Singh and had received the entire consideration of Rs. 9.00 lakhs. 5. Subsequently, legal representatives of Sunder Singh, namely respondent Nos. In the compromise entered between the parties, Sunder Singh had admitted the fact that he had sold the subject property to Narsingh Singh and had received the entire consideration of Rs. 9.00 lakhs. 5. Subsequently, legal representatives of Sunder Singh, namely respondent Nos. 4 to 8, started intervering with the peaceful possession of Narsingh Singh over the subject property. Therefore, Narsingh Singh filed a second civil suit, namely O.S. No. 110 of 2009 on the file of the Court of the I Senior Civil Judge, City Civil Court, at Hyderabad, for the relief of specific performance of an agreement of sale, and perpetual injunction. Along with the civil suit, Narsingh Singh also filed an application for temporary injunction, namely I.A. No. 162 of 2009. However, by order dated 06.07.2009, the said application was dismissed by the learned trial Court. Since Narsingh Singh was aggrieved by the said order, he filed a Civil Miscellaneous Appeal, namely C.M.A. No. 769 of 2009 before this Court. 6. By judgment dated 21.07.2009, this Court allowed the appeal while imposing a condition upon Narsingh Singh to deposit a sum of Rs. 4,000/- per month with the then Municipal Corporation of Hyderabad for clearing the arrears of amount due to it, and to deposit Rs. 5,000/- per week in favour of respondent Nos. 2 to 6 therein. It was also made abundantly clear that in case Narsingh Singh commits any default in payment of the amounts to the respondents, for a consecutive period of two weeks, the injunction order stands vacated. 7. With the assistance of the Station House Officer of Shahinayathgunj Police Station, the respondent Nos. 4 to 8 again started interfering with the peaceful possession of Narsingh Singh. Therefore, Narsingh Singh filed a writ petition, namely W.P. No. 27874 of 2014. By order dated 17.09.2014, this Court directed the Station House Officer, Shahinayathgunj Police Station, not to prevent the petitioners from collecting the rents from the tenants over the suit schedule property. Although the respondent Nos. 4 to 8, who were arrayed as respondent Nos. 2 to 6 in the writ petition, filed an application for vacating the stay, this Court continued the stay till it closed the case on 26.11.2019. Although the respondent Nos. 4 to 8, who were arrayed as respondent Nos. 2 to 6 in the writ petition, filed an application for vacating the stay, this Court continued the stay till it closed the case on 26.11.2019. This Court closed the said writ petition by recording the relief sought therein, and recorded the stand of the official respondent, wherein it has stated that:- “During the course of enquiry, it is revealed that both the parties have civil dispute and the same is pending before this Court vide C.M.A. No. 769 of 2009 and the main suit, being O.S. No. 110 of 2009, is pending on the file of the Court of I Additional Senior Civil Judge, City Civil Court, Hyderabad. Therefore, the first respondent suggested both the parties to approach the concerned court of law since the matter is civil in nature.” 8. However, taking the closing of the writ petition as being in their favour, the respondent Nos. 4 to 8 again started interfering with the peaceful possession of the petitioners, who are the relatives of Narsingh Singh. Consequently, the petitioners lodged a compliant with the police, and prayed for registration of a criminal case against respondent Nos. 4 to 8, and to investigate the said case. They also prayed that they should be provided with police protection so as to prevent the respondent Nos. 4 to 8 from interfering with their peaceful possession, and from collecting the rents from the tenants in the subject property. Since both these prayers to the police fell on deaf ears, the writ petition, namely W.P. No. 27616 of 2019 came to be filed with the abovementioned prayers. However, by the impugned order dated 21.04.2020, the learned Single Judge has granted the relief, as quoted hereinabove. Hence, this appeal before this Court. 9. Mr. Vedula Srinivas, the learned counsel for the appellants, submits that since the appellants are aggrieved by the fact that an injunction has been passed against them, they have filed the present appeal before this Court. 10. Hence, this appeal before this Court. 9. Mr. Vedula Srinivas, the learned counsel for the appellants, submits that since the appellants are aggrieved by the fact that an injunction has been passed against them, they have filed the present appeal before this Court. 10. Considering the fact that the appellants had approached the learned Single Judge with the prayer “to direct an investigation into the complaint filed by them” and had sought for a writ of mandamus against the respondent No. 3, this Court is of the opinion that the relief sought from the learned Single Judge was under “the criminal jurisdiction.” Therefore, this Court has questioned the learned counsel for the appellants about the maintainability of the appeal in the light of the opinion expressed by the Hon’ble Supreme Court in the case of Ram Kishan Fauji vs. State of Haryana, (2017) 5 SCC 533 . 11. Once this issue of maintainability was posed to the learned counsel for the appellants, while bringing certain paragraphs of the aforementioned judgment to the notice of this Court, the learned counsel has raised the following contentions before this Court. 12. According to the learned counsel, the Hon’ble Supreme Court has opined that “the expression “civil proceeding” is not defined in the Constitution, nor in the General Clauses Act.” The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute and claims relief for breach thereof. Moreover, “a criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.” Furthermore, the Supreme Court had also opined that “the character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief but upon the nature of the right violated and the appropriate relief which may be claimed.” 13. Therefore, according to the learned counsel, since the relief being sought by the petitioners was two-fold, namely (a) police protection and (b) investigation of a complaint, the relief actually being sought was of “a civil nature” and not of “a criminal nature.” 14. The learned counsel has also emphasized the fact that in the case of Ram Kishan Fauji (supra), the Hon’ble Supreme Court had opined that “the vital factor for determination of the maintainability of the intra-court appeal is the nature of jurisdiction invoked by the party and the true nature of the order passed by the learned Single Judge.” According to the learned counsel, since the learned Single Judge has granted an injunction against the appellants, the nature of the order passed by the learned Single Judge is of “civil nature.” Therefore, according to the learned counsel, the intra-court appeal is certainly maintainable before this Court. 15. On the other hand, Mr. Srikanth Reddy, the learned Government Pleader for Home, appearing for respondent Nos. 1 to 3, has vehemently opposed the stand being taken by the learned counsel for the appellants. According to Mr. Srikanth Reddy, the determinative factor is the relief sought by the petitioners, and not the nature of the order passed by the learned Single Judge. 16. He submits that a bare perusal of the prayer clause of the writ petition clearly reveals that the petitioners were interested and had sought “an investigation into a complaint.” According to the learned counsel, an investigation can be made by the police only under the provisions of the Criminal Procedure Code. Once an investigation begins, it will either lead to the filing of a charge-sheet or to a negative final report. In case, a charge-sheet were to be filed, it would lead to holding of a trial, which would either end up in acquittal, or in conviction. Therefore, the relief being sought by the petitioners was clearly under “the criminal jurisdiction.” Hence, even if the learned Single Judge may have granted an injunction, and may not have directed the police to investigate the case, nonetheless the relief sought was within “the criminal jurisdiction.” Therefore, according to the learned counsel, the writ appeal is not maintainable. 17. Heard the learned counsel for the parties, and perused the impugned order. 18. 17. Heard the learned counsel for the parties, and perused the impugned order. 18. A perusal of the relief sought by the petitioners clearly reveals that the petitioners had sought two reliefs, namely police protection and investigation into the complaint. Obviously, the police can investigate into a case only under Section 154 Cr.P.C. or under Section 156 (3) Cr.P.C. An investigation would either lead to filing of a negative report, or lead to filing of a charge-sheet. In case, the charge-sheet were to be filed, charges were to be framed, certainly, a criminal trial will commence with the framing of the charges. The criminal trial will culminate, either in acquittal, or in conviction. Therefore, the prayer of the petitioners, although seeking a writ of mandamus, was to begin “a criminal investigation.” Hence, the relief sought would fall within the criminal, and not within the civil jurisdiction of the Court. 19. As quoted above, the Hon’ble Supreme Court has clearly opined that it is not the nature of the Tribunal, which is pertinent, but it is the nature of the rights violated, and the appropriate relief which may be claimed. 20. In the present case, the petitioners are claiming their right to have a complaint investigated by the police, which the police have failed to investigate. Therefore, the relief being sought is within “the criminal jurisdiction.” 21. Although it is true that despite the fact that the petitioners had approached the learned Single Judge for seeking a relief under the criminal jurisdiction, the learned Single Judge has granted an injunction, a relief that was not even sought by the petitioners. But, merely because the learned Single Judge may have misapplied his mind, and may have given “a civil relief” when “a criminal relief” was sought in criminal jurisdiction, it would not transform the nature of the relief being sought by the petitioners from “a criminal relief” to “a civil” one. Therefore, the learned counsel for the appellants is unjustified in claiming that since “a civil relief” has been granted by the learned Single Judge, the present appeal would be maintainable before this Court. 22. For the reasons state above, this Court finds that the present appeal is not maintainable before this Court. Therefore, this appeal is, hereby, dismissed as not maintainable. There shall be no order as to costs. 23. 22. For the reasons state above, this Court finds that the present appeal is not maintainable before this Court. Therefore, this appeal is, hereby, dismissed as not maintainable. There shall be no order as to costs. 23. As a sequel, miscellaneous petitions, pending if any, shall also stand dismissed.