Alias Devandas Vs. State of Madhya Pradesh
& Ors  INSC 240 (25 August 1988)
K.J. (J) Shetty, K.J. (J) Kania, M.H.
1988 AIR 1973 1988 SCR Supl. (2) 584 1988 SCC (4) 452 JT 1988 (3) 479 1988
of Criminal Procedure, 1973: s. 145-An order under- Deals only with factum of
possession on a particular day- Confers no title to remain in possession of
disputed property-Civil court has jurisdiction to give finding different from
that of Magistrate- Unsuccessful party approaching civil court does nor warrant
setting aside of concluded order.
mortgagee in possession leased out the shop to the appellant and delivered
possession. His entering of possession became a subject matter of dispute with
respondent No. 2 in which the appellant was dispossessed.
proceedings initiated under s. 145 Cr. P.C. the, Magistrate found that the
appellant was entitled to restoration of possession since he was dispossessed
forcibly and wrongfully within the terms of proviso to s. 145 (4) Cr. P.C. The
respondent filed a suit and obtained temporary injunction against the
appellant. That injunction was vacated by the Additional District Judge who
found that the appellant was in possession of the shop on the date of
occurrence of incident. The respondents revision application challenging the
final order under s,145(6) Cr. P.C. was dismissed by the Sessions Judge.
Accepting respondents petition under s. 482 Cr. P.C., for quashing the
proceedings under s. 145 the High Court, following the judgment in Rum Sumer Puri
Mahant v. Srate of U. P.,  1 SCC 427, took the view that since the civil
proceedings in respect of the disputed premises were pending before the
competent civil court where interim reliefs have been prayed for and obtained,
there was no justification for continuing the proceedings under s. 145 Cr. P.C.
pending before the SDM.
the appeal by special leave,
The High Court was in error in quashing the proceedings under s. 145 Cr. P.C.
pending before the Sub- Divisional Magistrate. [589F, 587EF] An order made
under s. 145 Cr. P.C. deals only with the factum of possession of the party as
on a particular day. It PG NO 584 PG NO 585 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. He 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. [589D-E] The ratio of the decision in Ram Sumer Puri Mahant v.
of U.P. 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 s. 145 Cr.P.C. made by the Magistrate of competent jurisdiction, as
in the instant case, should be set at naught merely because the unsuccessful
party has approached the civil court. [589C-D]
APPELLATE JURISDICTION: Criminal Appeal No. 139 of 1987.
the Judgment and Order dated 25.4. 1986 of the Madhya Pradesh High Court in
Misc. Criminal Case No. 1 135 of 1985.
Bhushan, K.M. Tiwari, L.P. Gaur and Ms. Rani Jethmalani for the Appellant.
(not present), P.S. Poti, S.K. Gambhir, Sanjay Sarin, S.N. Khare and T.C.
Sharma for the Respondents.
Judgment of the Court was delivered by JAGANNATHA SHETTY, J. We grant special
leave and proceed to dispose of the appeal.
appeal is directed against the order of the High Court of Madhya Pradesh dated
April 35, 1986 quashing the final order made under sec. 145 of Cr. P.C. in
respect of a shop premises. The shop was in possession of one Asgarali son of Akbar
Ali as, mortgagee since October
17, 1969. On August 7, 1982, Asgarali was said to have leased
out the shop to the petitioner and also delivered possession thereof. The
entering of possession by the petitioner became a subject matter of dispute.
Apprehending breach of peace, the police initiated proceedings under sec. 145
the Additional District Magistrate, Ujjain. In that proceedings, the petitioner was party no. 2 and respondent PG
NO 586 no. 2 was party no. 1, On August 13, 1982 the Magistrate made a preliminary order. The proceedings
continued for about three years. On May 17, 1985, the Magistrate made the final
order in the following terms:
I believe that the party no. 2, Jhummamal alias Devandass S/o Jethanand had the
occupation within two months from 13.8. 1982 on which summons were issued by
the court under sec. 145 sub-sec. (1).
I order that party no. 2 Jhummamal is entitled for the occupation of the shop
unless he is evicted by procedure established by law. And I issue injunction
that there should not be any obstacle in handing over the possession to Jhummamal.
And if there are locks placed by Motilal or his accomplices, the same should be
broken open. And the goods, if any, found in the shop should be handed over to
a responsible person after making a panchnama." It will be seen from the
above order that the petitioner is entitled to restoration of possession since
he was dispossessed forcibly and wrongfully within the terms of proviso to sec.
145(4) of Cr.P.C. But unfortunately, the petitioner could not be put into
On July 15, 1985, the respondent filed a suit for
injunction. On August
14, 1985, he obtained
temporary injunction against the appellant. But upon appeal that temporary
injunction was vacated. The learned First Additional District Judge, who
delivered the Judgment in that appeal, has recorded the following findings:
it is clear from the above analysis that Asgar Ali was in possession of the
disputed shop till 7. 8.82. It seems to be his prima facie right to rent out
the shop. That it seems that he received the rent in advance executed the rent
deed and transferred the possession to appellant/Jhummamal. As it is mentioned
above the First Information Report lodged by Kanhayalal on behalf of Jhummamal
in which it is stated that Jhummamal obtained possession on 9.8.82, does not
seem right, when only respondent has demanded possession in his petition dated
13.8.82. Hence I believe that Jhummamal obtained the possession of the disputed
shop in the capacity as tenant.
and his brothers put their locks later on. And PG NO 587 as in my opinion on
the date of occurrence of incident, Jhummamal was in possession of the shop, respondent,plaintiff
does not have a prima facie case in his favour Hence, I believe that the
temporary injunction order passed by the lower court is not just and as per
while disagreeing with the order passed by the lower court, I accept the appeal
and quash the order passed by the lower court. " In between the parties,
there were also certain criminal proceedings regarding the theft from and house
trespass on the same premises. A couple of days before the preliminary order was
made under sec. 145 Cr. P.C. a relation of the appellant filed report before
the Police complaining against the respondent. On that report the respondent
was prosecuted under secs. 380 and 454 of the IPC. On February 22 1984, he was convicted of the said
offences. But upon appeal, he as acquitted by the Additional District Judge.
The revision against the order of acquittal was also dismissed by the High
also be relevant to state that the respondent challenged the final order under
sec. 145(6) of the Cr.P.C. in a revision before the sessions Judge. On September 27, 1985, that revision was dismissed. After
becoming unsuccessfull in the proceedings under sec. 145 Cr.P.C. and also
before civil court in the suit to or injunction. the respondent moved the High
Court under sec. 482 of Cr.P.C. to quash the proceedings under sec. 145 Cr.P.C.
The High Court accepted the petition and quashed the proceedings by following
the judgment of this Court in Ram Sumer Puri ,Mahant v. State of U. P. 1
SCC 427.The operative portion of the High Court order is as follows;
view of the fact that civil proceedings in respect of the disputed premises is
pending before the competent civil court, where interim reliefs have been
prayed for and obtained, the reappears to be no justification for continuing
with the proceedings u/s 145 Cr.P.C. pending before the S.D.M. Shri Tiwari
learned counsel submitted that in case the plaintiff's suit is either withdrawn
or dismissed, he would be left with no remedy. This submission cannot be accepted
PG NO 588 in view of the Supreme Court judgment as reported in Ram Sumer Puri
v. State of U.P. AIR 1985 SC 472.
145 is intended to provide a special remedy for the prevention of breach of
peace arising out of a dispute relating to immovable property. Its primary
object is to maintain the public peace and not to decide disputes between the
contending parties or adjudicate upon the rights of the parties to possession.
Now, that the civil court is seized of the matters it is desirable that such
parallel proceedings in respect of the same subject matter and dispute should
not be allowed to continue in the criminal court as it amounts to an abuse of
the process of the court which is one of the grounds for invoking section 482
the foregoing reasons, this petition deserves to be allowed. It is accordingly
allowed. The proceedings u/s 145 Cr.P.C. pending before the Sub-Divisional
Magistrate Ujjain, along with the orders passed therein is, therefore, quashed.
" The validity of the aforesaid order has been called into question in
will be obvious from the order of the High Court that the decision of this
Court in Ram Sumer's case has been totally misunder-stood.
In that case, a title suit for possession and injunction in respect of certain
property was instituted before the civil court. The suit was dismissed on February 28, 1981. The matter was taken up in appeal.
When the appeal was pending for disposal, proceedings under sec.
were initiated with regard to the same property.
proceedings, the Magistrate passed a preliminary order under sec. 145(1) of the
Cr.P.C. and also attached the property. The aggrieved party challenged that
order in a revision petition before the Allahabad High Court. The High Court
refused to interfere with that order. But this Court quashed the proceedings
under sec. 145 Cr.P.C. observing :
is no scope to doubt ar 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 PG NO 589
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.
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 flat continue and the order of the learned
Magistrate should be quashed.
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.
for the respondent, however, suggested that having regard to the nature of
dispute and the rights of parties relating to the property in question, we
should not exercise our extraordinary jurisdiction under Art. 136 of the
Constitution. We do not think that the contention could be accepted in view of
the patently erroneous order of the High Court.
result, we allow the appeal, set aside that order of the High Court and restore
that of the Magistrate. The parties may work out their rights as per law.