M.P.Peter Vs. State of
Kerala & Ors.  INSC 1024 (11 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 980 OF 2009
[Arising out of SLP (Crl.) No. 5121 of 2008] M.P. Peter ...Appellant Versus
State of Kerala & Ors. ...Respondents
S.B. SINHA, J :
appeal is directed against the judgment and order dated 19.06.2008 passed by a
learned Single Judge of the High Court of Kerala in Criminal M.C. No. 1709 of
2008 whereby and whereunder an order dated 3.04.2008 passed by the
Sub-Divisional Magistrate was affirmed.
is said to be the owner and in possession of 13 < cents of land in Survey
No. 412/1 of Kizhakambalam Village. On or about 09.01.1996, a complaint was
filed by the respondent No. 3 alleging that the property in question belonged
to him. A report was submitted by the Sub- Inspector of Police on 12.04.1996
before the Sub-Divisional Magistrate under Section 145 of the Code of Criminal
Procedure stating that there existed a dispute over title of the said property
by and between the appellant and the respondent No. 3. Before the
Sub-Divisional Magistrate the appellant herein was arrayed as `the B party' and
the respondent No. 3 herein was `the A party'. By an order dated 9.10.1997, the
Sub-Divisional Magistrate held:
"As B party is
stated to be residing in the building constructed in the disputed property, he
is directed to handover the property to A party within two weeks from today
failing which A party is entitled for restoration of possession of the property
with police assistance."
thereby, the appellant filed a criminal revision petition, marked as Criminal;
Revision No. 41 of 1997 before the Sessions Court, Ernakulam which by reason of
an order dated 6.03.1999 was allowed.
Respondent No. 3
filed Criminal Revision Petition No. 308 of 1999 before the High Court of
Kerala challenging the said order dated 6.03.1999. By reason of an order dated
25.09.2007, the revision petition was allowed by the High Court, holding:
circumstances, I find that the decision of the Sessions Judge reversing the
finding of the Sub Divisional Magistrate is liable to be set aside; and I do
so. The decision of the Sub Divisional Magistrate is restored. All the same,
considering the fact that the respondents/ B party has constructed house and is
residing therein, execution of the order of the Sub Divisional Magistrate is
only to be initiated after six months from today onwards..."
Special Leave Petition filed thereagainst by the appellant was dismissed by
this Court by an order dated 11.02.2008.
the meantime, however, a suit, which was marked as O.S. No. 383 of 2007, was
filed by the appellant in the Court of Munsif, Perumbavoor on 1.12.2007 for a
declaration that the appellant was the owner and in possession of 13.25 cents of
land in Old Survey No. 412/1 of Kizhakkambalam Village. An interim application
was filed therein seeking a prohibitory injunction against dispossession which
was dismissed by the Munsiff Court by an order dated 24.03.2008.
preferred an appeal thereagainst which was marked as C.M.A. No. 12 of 2008
challenging the said order dated 24.03.2008 and by an order dated 7.04.2008 an
order of injunction was passed prohibiting 4 eviction of the appellant from
the plaint scheduled property until further orders. However, an application for
clarification of the said order was filed by the respondent No. 3 and by an
order dated 11.04.2008, it was allowed in the following terms:
seeks a clarification that the order is not against the R.D.O. The order of the
court is clear. The respondent alone is restrained."
an order dated 26.08.2008, while dismissing the said C.M.A. No. 12 of 2008, the
matter was remitted to the lower court with a direction to the parties to
maintain the status quo.
or about 3.04.2008, the Sub Divisional Magistrate directed the appellant to
hand over possession of the suit property to the respondent No. 3 within three
days of the receipt of the said notice.
thereby and dissatisfied therewith, the appellant filed a Criminal
Miscellaneous case bearing No. Crl. M.C. No. 1709 of 2008.
Though an interim
stay was granted, the High Court dismissed the Criminal Miscellaneous Case by
reason of the impugned judgment dated 19.06.2008.
Roy Abraham, learned counsel appearing on behalf of the appellant, would
contend that the learned Trial Judge as also the High Court 5 committed a
serious error insofar as they failed to take into consideration that the
appellant being in possession of the property in question, an order of
injunction should have been passed in his favour.
U.U. Lalit, learned senior counsel appearing on behalf of the respondent No. 3,
on the other hand, urged :- (i) A finding of fact having been arrived at by the
learned Executive Magistrate that the respondent No. 3 was dispossessed by the
appellant within a period of two months from the date of initiation of the
proceedings under Section 145 of the Code of Criminal Procedure, 1973 (for
short `the Code') and, thus, entitled to restoration of possession, the
impugned judgment should not be interfered with.
(ii) Appellant having
raised a contention that he was a co-sharer in respect of the plot in question,
which having not been found favour with by the courts below, he cannot be said
to have any prima facie case and, thus, the impugned order is unassailable.
proceeding under Section 145 of the Code indisputably remained pending for a
long time. It was initiated on or about 9.01.1996 when a complaint was filed by
the respondent No. 3. As noticed hereinbefore, the 6 Sub Divisional Magistrate
directed the appellant to handover the property to the respondent No. 3.
However, the order of the Sub Divisional Magistrate was reversed by the learned
Sessions Judge, which in turn was set aside by the High Court by an order dated
correctness or otherwise of the said order of the learned Sub Divisional
Magistrate attained finality as the Special Leave Petition filed against the
order of the High Court dated 25.09.2007 was dismissed by this Court by an
order dated 11.02.2008. Indisputably, the suit was filed thereafter.
order passed by an Executive Magistrate in exercise of its jurisdiction under
Section 145 of the Code of Criminal Procedure is subject to the ultimate
decision of the suit filed in the civil court.
a decision of the learned Magistrate on possession of the parties may have some
evidentiary value but the same is not binding on a civil court. In a proceeding
under Section 145 of the Code of Criminal Procedure, the learned Magistrate
would not be entitled to go into a disputed and in particular complicated
question of title. Despite an order passed under Section 145 of the Code of
Criminal Procedure, the Civil Court may in a suit pass an order of injunction.
In this case, however, admittedly 7 during pendency of the said proceedings
under Section 145 of the Code of Criminal Procedure, the appellant had
constructed a house. Prima facie, the respondent No. 3 stood thereby. In the
proceedings before the learned Magistrate, he could have filed an application
for attachment. He could have also filed an application for appointment of a
receiver. The question as to whether the constructions were raised only during
pendency of the said proceeding would be considered in the suit by the Civil
High Court in its judgment dated 25.09.2007 while reversing the order of the
learned Sessions Judge noticed that the appellant had constructed a house and
been residing therein. It was in that view of the matter, he interfered with
the order of the Sub Divisional Magistrate directing that the restoration of
possession may be effected after six months from the said date.
is, therefore, not denied or disputed that the appellant is in possession of a
house and has been residing therein. It also stands admitted that the respondent
No. 3 is not entitled to the superstructure on the land in suit. Neither the
High Court while passing the said order dated 25.09.2007 nor the courts below
took this factor into consideration. If, as conceded by Mr. Lalit that the
respondent No. 3 would not be entitled to the 8 superstructure standing on the
said land, with a view to give full effect to the order passed by the learned
Sub Divisional Magistrate which provides for handing over of possession only on
the land in question, the superstructure would be required to be demolished.
the Civil Court have granted an order of injunction in the peculiar facts and
circumstances of the case is the question.
have noticed hereinbefore that whereas the learned Munsiff in his order dated
24.03.2008 proceeded on the basis that the appellant could not claim a right
over the suit land belonging to a third party unless a case of adverse
possession is made out, the learned first appellate court, in its order dated
"This is a
petition filed by the Petitioner/ Appellant U/o 39 r 1 C.P.C. Heard the counsel
for the petitioner. Perused the appeal records. The respondents are restrained
by an order of temporary injunction from forcibly evicting the petitioner from
the plaint schedule property until further orders."
noticed hereinbefore, a clarification was sought for and by an order dated
11.04.2008, it was stated that "order is not against the RDO" and
"the respondent alone is restrained".
however, we advert to the correctness and/ or justifiability of the said order,
we may notice that the learned Subordinate Judge, Perumbavoor in his order
dated 26.08.2008 held as under:
"7. When the
matter came up for hearing, the counsel for the appellants stated that the
property obtained by the appellant is in old Sy. No: 411/2 B 3 and he has filed
a petition for amending his petition and the plaint. He also pointed out that
the petition to amend the plaint is filed before trial Court. The right claimed
in the plaint is filed before trial Court. The right claimed in the plaint and
the petition is in Sy. No: 412/1. But now the appellant had sought the petition
to amend the petition and claimed right in Sy. No: 411/2 B
So, it can be seen
that the case now pleaded by the plaintiff is different from what has between
the case set up on the general plaint and the new case pleased. Hence, the
appellant should be given an opportunity to file a petition before the trial
court to set up his claim separately.
8. As such there is
no reason shown to interfere with the finding of the court below. Hence, this
C.M.A. is dismissed. The matter is sent back to the lower court for considering
the amendment petition and to decide the matter on merit. In the meanwhile the
parties will maintain status quo.
There shall no order
as to costs."
the suit, the Sub Divisional Magistrate was not a party. No order of injunction
could have been passed against him but then that would not mean 10 that the
Civil Court could not pass an order of injunction against the defendant -
respondent. If an order of injunction was passed against the defendant -
respondent from obtaining possession, the question of RDO's executing his own
order dated 9.10.1997 would not arise. Even where a court or a statutory
authority may not be subjected to an order of injunction, a party can be
injuncted from proceeding in the matter as is evident from the decision of this
Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC
there is no doubt or dispute that an application for amendment of the plaint
has been filed and the same has been allowed. In the meanwhile, this Court by
an order dated 28.07.2008 passed an order of status quo as regards possession.
Relying on or on the basis of the said order, the learned Subordinate Judge by
an order dated 12.11.2008 directed as under:
"5. The order in
the C.M.A. is specifically stated that the matter is sent back to the lower
court for considering the amendment petition and to decide the matter on merit.
In the meanwhile the parties will maintain the status quo. It is evident from
the order that the parties will maintain status quo till the matter is
adjudicated by the Munsiff's Court and a decision is given on merit. The counter
filed by the respondent also show that the matter is stayed by the Hon'ble
Supreme Court of India. Hence, it is evident that 11 the parties have to
maintain the status quo till the case is finally disposed of after the
amendment of the plaint. This petition is closed as per the basis of the
It was the
correctness of the orders dated 7.04.2008 and 11.04.2008 which was questioned
before the High Court. The High Court opined:
"21. The learned
counsel for the petitioner submits that a civil suit having been filed and the
civil Court having passed orders like the one passed on 7.04.2008 and
11.04.2008 it must now be held that there is no threat or breach of the peace
and therefore the order under Sec. 145 of the Cr. P.C.
does not deserve to
be executed. I am unable to accept this contention also. Threat to breach of
peace must certainly be there to invoke the jurisdiction under Sec. 145 of the
Cr.P.C. But it would be myopic to come to the conclusion that such threat must
continue every day during the continuation of the proceedings, after the orders
are passed, after the challenge of the orders come to an end and till the
execution of the order. I am unable to accept the said contention that the
threat of breach of peace must exist until the order is executed. The parties
need not be aiming the swords at each other during this entire period to
justify execution of the order under Sec. 145 of the Cr.P.C."
at the first instance, the matter had not been considered on merit. The effect
of the order refusing to grant injunction had not been considered by the courts
below. Whether an exceptional case has been made out or not did not fall for
the consideration of the learned courts.
very fact that a triable issue has been raised by the appellant for the purpose
of grant of injunction was not noticed. Furthermore, the fact that the
appellant is residing with his family on the structure raised by him also
escaped the attention of the learned courts. Respondent No. 3 had been kept out
of possession for a long time. In a case of this nature, interest of justice
would have been sub-served if an order of injunction would have been passed in
favour of the appellant, subject to such terms as the court might have thought
fit and proper to impose..
Lalit would contend that there exists a distinction between forcible eviction
and legal eviction. It is so. But, when an order of injunction was sought for
by the plaintiff - appellant, his prayer was to obtain an order of injunction
so that his possession is maintained.
legality or validity of the order dated 9.10.1997 was in question in the suit.
Even the identity of the suit land, viz., as to whether it falls within the
Survey No. 412/1 is required to be determined.
Our attention has
been drawn to a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi
[(2004) 1 SCC 438] wherein it was held:
Possession is nine points in law. One purpose of the enforcement of the law is
to maintain peace and order in society. The disputes relating to property
should be settled in a civilized manner by having recourse to law and not by
taking the law in own hands by members of society. A dispute relating to any
land etc. as defined in sub-section (2) of Section 145 having arisen, causing a
likelihood of a breach of the peace, Section 145 of the Code authorizes the
Executive Magistrate to take cognizance of the dispute and settle the same by
holding an enquiry into possession as distinguished from right to possession or
title. The proceedings under Sections 145/146 of the Code have been held to be
quasi- civil, quasi-criminal in nature or an executive or police action. The
purpose of the provisions is to provide a speedy and summary remedy so as to
prevent a breach of the peace by submitting the dispute to the Executive
Magistrate for resolution as between the parties disputing the question of
possession over the property. The Magistrate having taken cognizance of the
dispute would confine himself to ascertaining which of the disputing parties
was in possession by reference to the date of the preliminary order or within
two months next before the said date, as referred to in the proviso to
sub-section (4) of Section 145 and maintain the status quo as to possession
until the entitlement to possession was determined by a court, having
competence to enter into adjudication of civil rights, which an Executive Magistrate
cannot. The Executive Magistrate would not take cognizance of the dispute if it
is referable only to ownership or right to possession and is not over
possession simpliciter; so also the Executive Magistrate would refuse to
interfere if there is no likelihood of breach of the peace or if the likelihood
of breach of peace though existed at a previous point of time, had ceased to
exist by the 14 time he was called upon to pronounce the final order so far as
he was concerned."
A distinction therein
was noticed between a case where the subject matter of dispute is not attached
by the Executive Magistrate and where it is so ordered. It was observed:
"12. What is an
eviction "in due course of law"
within the meaning of
sub-section (6) of Section 145 of the Code? Does it mean a suit or proceedings
directing restoration of possession between the parties respectively
unsuccessful and successful in proceedings under Section 145 or any order of a
competent court which though not expressly directing eviction of the successful
party, has the effect of upholding the possession or entitlement to possession
of the unsuccessful party as against the said successful party. In our opinion,
which we would buttress by reasons stated shortly hereinafter, ordinarily a party
unsuccessful in proceedings under Section 145 ought to sue for recovery of
possession seeking a decree or order for restoration of possession. However, a
party though unsuccessful in proceedings under Section 145 may still be able to
successfully establish before the competent court that it was actually in
possession of the property and is entitled to retain the same by making out a
strong case demonstrating the finding of the Magistrate to be apparently
This Court further
"15. It is well
settled that a decision by a criminal court does not bind the civil court while
a decision by the civil court binds the criminal court.
(See Sarkar on
Evidence, 15th Edn., p. 845.) A decision given under Section 145 of the Code
has relevance and is admissible in evidence to show:
(i) that there was a
dispute relating to a particular property; (ii) that the dispute was between
the particular parties; (iii) that such dispute led to the passing of a
preliminary order under Section 145(1) or an attachment under Section 146(1),
on the given date; and (iv) that the Magistrate found one of the parties to be
in possession or fictional possession of the disputed property on the date of
the preliminary order. The reasoning recorded by the Magistrate or other
findings arrived at by him have no relevance and are not admissible in evidence
before the competent court and the competent court is not bound by the findings
arrived at by the Magistrate even on the question of possession though, as
between the parties, the order of the Magistrate would be evidence of
possession. The finding recorded by the Magistrate does not bind the court. The
competent court has jurisdiction and would be justified in arriving at a
finding inconsistent with the one arrived at by the Executive Magistrate even
on the question of possession. Sections 145 and 146 only provide for the order
of the Executive Magistrate made under any of the two provisions being
superseded by and giving way to the order or decree of a competent court. The
effect of the Magistrate's order is that burden is thrown on the unsuccessful
party to prove its possession or entitlement to possession before the competent
of some of the observations made therein although may be open to question, we
need not enter into the said controversy at present.
may, however, notice that this Court in Shanti Kumar Panda (supra) held:
"(3) A decision
by a criminal court does not bind the civil court while a decision by the civil
court binds the criminal court. An order passed by the Executive Magistrate in
proceedings under Sections 145/146 of the Code is an order by a criminal court
and that too based on a summary enquiry. The order is entitled to respect and
wait before the competent court at the interlocutory stage. At the stage of
final adjudication of rights, which would be on the evidence adduced before the
court, the order of the Magistrate is only one out of several pieces of
(4) The court will be
loath to issue an order of interim injunction or to order an interim
arrangement inconsistent with the one made by the Executive Magistrate.
However, to say so is merely stating a rule of caution or restraint, on
exercise of discretion by court, dictated by prudence and regard for the
urgent/emergent executive orders made within jurisdiction by their makers; and
certainly not a tab on the power of court. The court does have jurisdiction to
make an interim order including an order of ad interim injunction inconsistent
with the order of the Executive Magistrate. The jurisdiction is there but the
same shall be exercised not as a rule but as an exception. Even at the stage of
passing an ad interim order the party unsuccessful before the Executive
Magistrate may on material placed before the court succeed in making out a
strong prima facie case demonstrating the findings of the Executive Magistrate
to be without jurisdiction, palpably wrong or self-inconsistent in which or the
like cases the court may, after recording its reasons and satisfaction, make an
order inconsistent with, 17 or in departure from, the one made by the
Executive Magistrate. The order of the court -- final or interlocutory, would
have the effect of declaring one of the parties entitled to possession and
evicting therefrom the party successful before the Executive Magistrate within
the meaning of sub-section (6) of Section 145."
Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra [Civil Appeal arising out of SLP (C)
No. 10997 of 2008, decided on 5.05.2009] and Seth Ramdayal Jat v. Laxmi Prasad,
[ 2009 (5) SCALE 527 ] this Court held that ordinarily the judgment of a
criminal court would not be binding on the Civil Court. However, the matter
will stand on a different footing in a suit where the correctness of an order
passed by an Executive Magistrate under Section 145 of the Code in question.
from the fact that the civil court will have a primacy over the decision of a
criminal court even for the purpose of grant of injunction, it is a case where
an exceptional case has been made out. As admittedly the appellant has been
residing in the suit premises and as furthermore it would not be practicable to
dispossess the appellant upon demolishing the structure, both balance of
convenience as also irreparable injury lie in favour of the plaintiff-
therefore, direct that the parties shall continue to maintain status quo till
the decision of the civil court subject to the following conditions:
(i) Appellant shall
not transfer, alienate or create any third party interest in the property.
(ii) The hearing of
the suit shall be expedited and all attempts should be made to dispose of the
suit within a period of six months from the date of receipt of a copy of this
(iii) The court, save
and except for cogent reasons, shall not grant any adjournment.
(iv) This order would
be subject to the final decision of the suit.
(v) In the event, the
suit is dismissed, the court would direct payment of such amount as it may be
determined by way of compensation to the defendant for being kept out of
possession from the suit premises from the date of commencement of the suit
till the date of restoration of possession.
appeal is allowed with the aforementioned observations. In the facts and
circumstances of the case, there shall, however, be no order as to costs.
19 [S.B. Sinha]
[Dr. Mukundakam Sharma]