Amresh Tiwari Vs. Lalta Prasad Dubey
& ANR  INSC 218 (11 April 2000)
K.T. Thomas, D.P. Mohapatra & S.N.
S. N. Variava, J.
L.I.T.J This appeal is against an Order dated
8th September, 1999. By this Order the High Court has, in exercise of powers
under Section 482 of the Criminal Procedure Code, set aside an Order dt. 9th
June 1999, passed by the sub-divisional Magistrate. The SDM had
dropped/discontinued the proceedings under Section 145 of the Criminal
Briefly stated the facts are as follows :
In respect of the property concerned the 1st
Respondent had a dispute with Sharda Prasad and Shiv Kumar. The 1st Respondent
filed Civil Suit No. 280 of 1990 in the Court of Civil Judge, Gyanpur on 10th
October, 1990. It is not denied that this Suit was for declaration of title,
possession and for injunction. On 10th October, 1990, itself an application for
ad interim Order was made. An Order to maintain status quo, as on that date,
was passed by the Court.
According to the Appellant, on 10th October,
1990 itself the said Sharda Prasad and Shiv Kumar had executed a Sale Deed in
favour of Smt. Prem Kali, who was the mother of the. According to the Appellant
possession of the property was delivered to Smt. Prem Kali on the same day.
In Suit No. 280 of 1990, on an application
made by Smt. Prem Kali, she was impleaded as a party defendant. In that Suit
the pleadings are complete. Issues have been framed.
The suit is pending trial.
While this Suit was pending the S.O. Police
Station, Aurai made a report to the S.D.M., Gyanpur stating that there was a
dispute regarding possession of land likely to cause a breach of peace within
his jurisdiction and for initiating of proceeding under Section 145 Criminal
Procedure Code. On the basis of this report, the learned S.D.M. passed
preliminary Order under Section 145(1) Criminal Procedure Code. Pursuant to this
preliminary Order the Appellant's mother appeared and filed a written statement
stating that there was no dispute likely to cause breach of peace regarding
possession of the said property.
It was pointed out that the civil Suit was
pending in the court of civil jurisdiction and an Order directing maintenance
of status quo had already been passed. The 1st Respondent also filed a written
statement pursuant to the preliminary Order. The 1st Respondent claimed that
the property which formed the subject matter of the civil Suit was different
from the property in respect of which proceedings under Section 145 Criminal
Procedure Code had been adopted.
The Appellant thereafter made an Application
that the proceedings under Section 145 Criminal Procedure Code be dropped as a
civil Suit in respect of the same property was pending. That Application was
rejected by the S.D.M. on 13th September, 1991. Against the Order dated 13th
September, 1991, a Criminal Revision was filed before the Additional Session
Judge, Gyanpur. The said Criminal Revision was rejected by an Order dated 16th
March, 1993. A Review Application was also dismissed by the Additional Session
Judge on 11th May 1993. Thereafter the proceedings under Section 145 Criminal
Procedure Code were resumed.
Statements of parties were recorded. In the
course of her statement the 1st Respondent, inter alia, stated as under :
"The Civil Suit which has been filed
regarding this land which is Suit No. 280 of 1990. In respect of the disputed
land which is the subject matter of the suit an order for maintain status-quo
has been passed...... The Civil Suit, I have filed in the Civil Court is for
dispossession of Amrit Lal and Prem Kali from the disputed land. This suit has
been filed for obtaining stay order against Sharda Prasad." Thus the 1st
Respondent admitted that the civil Suit was in respect of this land i.e. the
land in respect of which proceedings under Section 145 Criminal Procedure Code
had been adopted. The 1st Respondent also admits that the Suit is for possession
and for stay. Very fairly it is conceded before us that the land in respect of
which the proceedings under Section 145 Criminal Procedure Code was adopted
were part of the properties in respect of which Suit No. 280 of 1990 had been
After the statement of the parties had been
recorded, an Application was made by the Appellant that the proceedings under
Section 145 Criminal Procedure Code may be discontinued/dropped in view of the
pending civil Suit in which an order of maintenance of status quo had already
been passed. By an Order dated 9th June, 1999, the S.D.M.dropped the
proceedings under Section 145 Criminal Procedure Code by concluding that there
was no propriety in continuing the proceedings under Section 145 Criminal
Procedure Code when the civil Court was in seisin of the matter and an Order
for maintaining status quo had already been passed.
Against the Order dated 9th June, 1991, the
1st Respondent filed Criminal Revision No. 1230 of 1999 before the Allahabad
High Court. The Criminal Revision Application was allowed by the learned single
Judge, who set aside the Order dated 9th June, 1999 and remanded the matter
back to the trial Court for resuming the proceeding under Section 145 Criminal
Procedure Code. The only ground on which the learned single Judge has set aside
the Order dated 9th June, 1999 is that earlier an Application for dropping the
proceedings under Section 145 Criminal Procedure Code had been made and
dismissed and that the Revision against that Order had also been dismissed by
the Sessions Court by the Order dated 11th May, 1993. It was held that the
Order 11th May, 1993 had become final between the parties and was thus binding.
It was held that in view of that Order the trial court could not have accepted
the contention and should have rejected the Application for dropping the
proceedings. It was held that in view of that Order the only option left to the
Magistrate was to decide the proceedings under Section 145 Criminal Procedure
Code between the parties on merit.
It is this Order which is assailed in this
We have heard the parties at length. In our
view the High Court has committed an error in setting aside the Order of the
Magistrate on the basis that the earlier Order was final and binding. The
earlier Orders were interim Orders.
They were passed before any evidence or
statements had been recorded. Those Orders were passed only on the basis of the
contentions of the parties. At that stage the 1st Respondent had contended that
the civil proceedings did not relate to the same properties in respect of which
the proceedings under Section 145 Criminal Procedure Code were adopted.
Thereafter statements were recorded in the Section 145 proceedings. In her
statement the 1st Respondent admitted that proceedings under Section 145
Criminal Procedure Code were in respect of property which formed the
subject-matter of the civil Suit and in respect of which an Order for
maintenance of status quo had been passed by the civil Court. The S.D.M. was
bound to take a decision afresh based on the statements before him. It is
settled law that interim Orders, even though they may have been confirmed by
the higher Courts, never bind and do not prevent passing of contrary Order at
the stage of final hearing. The learned single Judge of the High Court appears
to have lost sight of this.
The learned single Judge also failed to
appreciate that the earlier Orders were passed on the footing that the civil
proceedings related to different properties and were between different parties.
Subsequently, when it became clear that the civil proceedings were in respect
of the same properties and between the same parties even the factual position
had changed. For that reason also the earlier Order would not be binding.
The question then is whether there is any
infirmity in the Order of the S.D.M. discontinuing the proceedings under Section
145 Criminal Procedure Code. The law on this subject-matter has been settled by
the decision of this Court in the case of Ram Sumer Puri Mahant vs. State of
U.P. & Ors., reported in 1985 (1) S.C.C. 427. In this case it has been held
as follows :
"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 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 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.
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." We are unable to accept the submission that the
principles laid down in Ram Sumers' case would only apply if the civil Court
has already adjudicated on the dispute regarding the property and given a
finding. In our view Ram Sumers' case is laying down that multiplicity of
litigation should be avoided as it is not in the interest of the parties and
public time would be wasted over meaningless litigation. On this principle it
has been held that when possession is being examined by the civil Court and
parties are in a position to approach the civil Court for adequate protection
of the property during the pendency of the dispute, the parallel proceedings
i.e. Section 145 proceedings should not continue.
Reliance has been placed on the case of
Jhummamal alias Devandas versus State of Madhya Pradesh & Ors., reported in
1988 (4) S.C.C. 452. It is submitted that this authority lays down that merely
because a civil suit is pending does not mean that proceedings under Section
145 Criminal Procedure Code should be set at naught. In our view this authority
does not lay down any such broad proposition. In this case the proceedings
under Section 145 Criminal Procedure Code had resulted in a concluded order.
Thereafter the party, who had lost, filed
After filing the civil proceedings he prayed
that the final order passed in the Section 145 proceedings be quashed. It is in
that context that this Court held that merely because a civil suit had been
filed did not mean that the concluded Order under Section 145 Criminal
Procedure Code should be quashed. This is entirely a different situation. In
this case the civil suit had been filed first. An Order of status quo had
already been passed by the competent civil court. Thereafter Section 145
proceedings were commenced.
No final order had been passed in the
proceedings under Section 145. In our view on the facts of the present case the
ratio laid down in Ram Sumers' case (supra) fully applies. 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.
In this view of the matter the appeal is
allowed. The impugned Order is set aside. In our view, the S.D.M. was right in
discontinuing the proceedings under Section 145 Criminal Procedure Code. The
Order passed by the S.D.M. on 9th of June, 1999 is restored.
Before we part it must be mentioned that in
the impugned Order the High Court has passed strictures against the S.D.M. The
High Court has also directed the District Magistrate to transfer the
proceedings from the S.D.M. who passed the Order dated 9th June, 1991. In our
view the strictures were uncalled for. We hope that in future the High Court
would not pass such strictures. Two views are always possible. Merely because
the High Court takes a different view is no ground for passing strictures
against the lower court.