Surinder Singh, J.@mdashThis petition has been filed by Pritam Singh and three others u/s 482, Code of Criminal Procedure, with a prayer for quashing of the order, dated 19th October 1984 passed by the Sub-Divisional Magistrate, Ropar (copy Annexure P. 1, and order, dated 8th February, 1985 of the Sessions Judge, Ropar (cop) Annexure P. 2).
2. The background of the dispute as narrated in the petition may be, briefly, noticed. Mahant Mahan Nand was the Mohtmim of the Dharmshala land measuring 122 Bighas 7 Biswas, situtated in village Bara Sidhar-pur, district Ropar, and was in its cultivating possession since 1974. The petitioners had been appointed as the Chelas of the said Mahant vide his Registered will, dated 11th May 1972. Accordingly after the death of the Mahant, the petitioners were installed as Mahants of the Institution at a formal ceremony performed on 28th October, 1983. It is stated that on account of a party faction Jasbir Singh respondent No. 2 made a claim of being a Chela of the deceased Mahant and he along with his supporters thereatened to dispossess the petitioners forcibly from the Dera and the Dharmshala land attached thereto. With this end in view, respondent No. 2 launched proceedings u/s 145, Code of Criminal Procedure against the petitioners The Police submitted a report in this behalf on 14th July, 1981 before the Sub Divisional Magistrate, Ropar. On the basis of the Police Report, the Sub Divisional Magistrate, Ropar issued notices u/s 145(1) Code of Criminal Procedure, to the petitioners to appear before him on 10th August 1984 and submit their written statements.
3. It is the case of the petitioners and this fact is not disputed during arguments that on 21st August, 1984, the petitioners filed a suit in the Court of Sub Judge 1st Class, Ropar, for permanent injunction against respondent No. 2 and his associates restraining them from interfering with the petitioners'' peaceful possession of the land in question. Along with the said suit, an application was also filed on the same day i.e. 21st August, 1984, for the issuance of a temporary injunction restraining respondent No. 2 and others from interfering with their possession. The learned Subordinate Judge vide his order, dated 23rd August, 1984 issued the necessary injunction restraining respondent No. 2 and others from dispossessing the petitioners. Copy of the order passed by the Subordinate Judge on 23rd August, 1984 has been produced as Annexure P.3 to the petition.
4. Respondent No. 2 on coming to know of the civil suit and the injunction issued therein, moved an application before the Sub-Divisional Magistrate for attachment or the land in dispute u/s 146, Code of Criminal Procedure. The petitioners moved the Sub-Divisional Magistrate with an application for dropping the proceedings u/s 145, Code of Criminal Procedure, in view of the stay of dispossession granted by the civil Court. The Sub-Divisional Magistrate, instead of allowing their request, passed the impugned order, dated 19th October, 1984 u/s 146 (1), Code of Criminal Procedure, ordering the attachment of the property and appointing Naib-Tehsildar, Ropar to manage the property till further orders. Copy of this order of the Sub-Divisional Magistrate, dated 19th October, 1984, has been produced as Annexure P.1
5. The petitioners impugned the order passed by the Sub-Divisional Magistrate dated 19th October, 1984 in a Revision Petition before the Sessions Judge, Ropar, who dismissed the same on 8th February, 1985, vide order copy Annexure P. 2.
6. The main contention put forward by the learned counsel for the petitioners is that the petitioners were in lawful possession of the disputed property and by filing a suit in the civil Court they had obtained an ad iterim injunction restraining respondent No. 2 and his associates from interfering with their possessession of the property. As already noticed, this was done on 21st August, 1984. In view of the fact that their lawful possession of the property was recognised by means of the order passed by the civil Court, respondent No. 2 could not have recourse to the proceedings u/s 145, Code of Criminal Procedure. In fact, such a course would amount to over reaching the verdict of civil Court. In support if his contention, the learned counsel, placed reliance upon various decisions on the point, the first one being of this Court as reported in Randhir Singh v. The State of Punjab 1984 (1) C.L.R. 221. It was held in the said authority that if a dispute regarding possession of land in question is pending before the civil Court and ad interim injunction has been issued in favour of the plaintiff, the proceedings u/s 145, Code of Criminal Procedure and the attachment of the property under the orders of the Sub-Divisional Magistrate, at the instance of he opposite party would be a clear abuse of the Court. The order of the Sub-Divisional Magistrate was therefore, quashed by this Court in exercise of its inherent powers. The next authority relied upon by the learned counsel is Ishar Dass v. Gauri Lal 1983 Cr.L.J. NOC 26. It was held therein that where a civil Court has issued a temporary injunction in favour of one of the parties to a suit, restraining the other party from interfering with its possession over the suit land, the Magistrate, while such an injunction is still in force, cannot start or continue parallel proceedings u/s 145, Code of Criminal Procedure.
7. As against the above authorities, the learned counsel No. 2 has sought to place reliance upon Mohinder Singh v. Dilbagh Rai (1976) 78 P.L.R. 803 A perusal of this authority however would show that it does not advance the case of the respondent at all. It was a case referred to the Division of Bench in the wake of the view expressed by various Single Benches that when the parties had gone to civil Court about the same subject-matter which is in dispute before a criminal Court and the civil Court issues injunction in favour of one of the parties, or orders the maintenance of status quo. Then nothing remains to be done by the criminal Court and that there remains no property or even scope for invoking the provisions of section 145, Code of Criminal Procedure in such cases. The Division Bench after considering the case law on the subject observed as follows:
In such cases involving the disputes of possession in my view, three types of orders can be envisaged to be passed by the civil Courts; (i) the appointment of receiver to manage the properties in dispute; (ii) the restraining of one of the parties from interfering with the possession of that other party during the pendency of the suit; about which the civil Court prima facie feels satisfied and (iii) the maintenance of status quo about the possession of the property during the pendency of the case.
8. There is no dispute that the case in had does not fall in category (i) as no receiver had been appointed by the civil Court to manage the properties in dispute. However, the case would be covered by category (ii) in view of the allegations contained in the present petition that an ad interim injunction had been issued in favour of the petitioners by the civil Court restraining the opposite party from interfering with their possession during the pendency of the civil suit and this injunction was issued because the civil Court was prima facie satisfied in regard to the possession of the petitioners. Referring to this category of cases, i e. (ii), the Division Bench observed as follows:
In the second type of cases prim facie it appears that there may not be any scope for the criminal Court to act u/s 145, Criminal Procedure Code, because the Civil Court prima facte feels satisfied about the possession of one of the parties to the litigation before passing the ad interim order in his favour defending his possession. On giving a deeper thought I do not think that this jurisdiction of a criminal Court be restricted. Cases are not wanting where a party abtains an ad interim order in his favour to the effect that during the pendency of the suit the other party will not interfere. in his possession. If the other party uses force to dispossess him, inspite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceeding u/s 145, Criminal Procedure Code and attraction of its emergency powers under sub-section (4), the Magistrate will, then step in, not to start parallel proceedings but to defend the orders of civil Court by not allowing the aggressor to establish himself in possession of the subject matter of the dispute in violation of the orders of the Court. In such a situation if the Magistrate acts then he adds the weight of the executive authority to respect the order of the civil Court for maintenance of status quo and does not violate any law. Yet another type of cases can be anticipated where one may enter into wrongful or forcible possession of the property leading to proceedings u/s 145, Criminal Procedure Code. He may approach a civil Court and obtain an order in his favour that he may not be dispossessed from the property or for the maintenance of status quo. If this argument is accepted that when the civil Court is seized of a case then the proceedings u/s 145, Criminal Procedure Code cannot continue and are to terminate then armed with the order of the civil Court he may go to the criminal Court and get the proceedings u/s 145, Criminal Procedure Code, dropped. After this he can get the civil suit filed by him dismissed and thus prepctuate his wrongful possession.
9. In view of the above enunciated law, there is no further scope for debate or doubt that after the issue of an order by the civil Court granting ad interim injunction in favour of one party, proceedings u/s 145, Code of Criminal Procedure and the attraction of its emergency powers under sub-section (4) could be taken by the Executive Magistrate only at the instance of the party in whose favour the ad interim injunction has been issued and not at the instance of the party who has restrained from interfering with the possession of the property. This position has been amply clarified by the observations of the Bench that in all such cases where there is likelihood of interference in the possession of the party who had obtained an ad interim injunction, leading to apprehension of breach of peace, the criminal Court "will then step in, not to start parallel proceedings but to defend the orders of the civil Court by not allowing the aggressor to establish himself in possession of the subject-matter of the dispute in violation of the orders of the Court.". The enunciation was further clinched by the observations that "in such a situation if the Magistrate acts, then he adds the weight of the executive authority to respect the orders of the civil Court."
10. Learned counsel for respondent No. 2 has, however, tried to contend that the present case would fall in category (iii) because at a subsequent stage of the civil suit an order was passed by the Court on 15th December, 1984 maintaining status quo in regard to possession. In the first place no such order is forth coming in the present record. Secondly, even according to the statement made at the Bar by the learned counsel, it was observed in the order that both the parties had claimed to be in possession of the property and hence status quo was ordered. Such an order even if passed would not negative the claim of possession of petitioners nor would it show that the Court accepted the claim of the respondent in this behalf. This apart, the impugned order of the Sub-Divisional Magistrate was passed on 19th October, 1984, that is, about two months before the passing of the alleged order of status quo. It cannot, therefore, be said that Sub Divisional Magistrate before passing his order, had taken into account the order of status quo dated 15th December, 1984.
11. Another submission made by the learned counsel for the petitioner is that the learned Sun Divisional Magistrate has given no cogent reasons for invoking the urgency provision u/s 146(1), Code of Criminal Procedure. A persual of the impugned order would show that the contention of the counsel is indeed sound. All that is observed by the learned Sub-Divisional Magistrate is that rice crop was standing in the fields and was "likelihood" of dispute between the parties over the harvesting there of. No reason has been given for coming to this conclusion nor has reference been made to any untoward incident or other circumstance, on the basis of which this conclusion was drawn. The order of the learned Sub Divisinal Magistrate is, therefore, quite arbitrary.
12. In view of what has been discussed above, it is apparent that the proceedings u/s 145 Code of Criminal Procedure are a clear abuse of the process of Court and are, therefore, quashed. In consequence, the order Annexure P. 1 passed by the Sub-Dsvisional Magistrate on 19th October, 1984, that is, after about two months of the issue of the tempor any injunction by the civil Court in favour of the petitioners as also the judgment of the learned Sessions Judge, Ropar, dated 8th February, 1985 (copy Annexure P 2) upholding the above order, are also quashed.
