KULLE GOWDA Vs. MAY1 GOWDA

JUDGEMENT

(1.) This revision petition is directed against the order of the Sub-Divisional Magistrate, Pandavapura Sub-Division, passed in a proceeding initiated under S.145 of the Code of Criminal Proredure. That was a preliminary order made by the Sub-Divisional Magistrate under sub-sec, (i) of Section 145 on 30-10-1972. The order reads : "On a careful consideration of the application filed by the first party member through his Counsel on 19-10-1972 praying action under S.145 CrPC and the affidavit filed by him, I am satisfied that there is ' litigation between the I and II party members over the scheduled property with regard to its possession which is likely to cause breach of peace over the same. I, therefore, order and direct that the I and II party members shall appear before this Court at 11-00 a.m. on 25-11- 1972 at Pandavapura either in person or by a Pleader and put in written statements of the respective claims in respect of the claims of actual possession of the subject of dispute and further to put in such documents or adduce by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. In the meantime the scheduled property is hereby attached, Both the parties are prohibited from entering upon or interfering with the schedule property in any manner. The Tahsildar, Pandavapura is hereby appointed as Receiver to take possession of the scheduled disputed property until further orders from this Court."

(2.) The preliminary order is challenged by Mr. Venkataranga Iyengar, the learned Counsel appearing on behalf of the petitioner on three grounds: (1) It is not disputed in this case that the member of the first party had instituted a suit OS.319 1971 in the Court of the Munsiff at Srirangapatna for permanent injunction. Though the said suit had been withdrawn, but the effect of the same is that the first party member is precluded to institute a fresh suit. Further, he submitted that since a civil suit had been instituted by the member of the first party, the Magistrate had no jurisdiction to initiate proceedings under S.145 CrPC. Reliance was placed on a decision in Multani v. Shah Abdu Turab, 1962 Mys.L.J.294, (2) Without recording the sworn statement of the petitioner (member of the first party), the Sub-Divisional Magistrate passed the impugned order. It was urged that it was obligatory on his part to have recorded the sworn statement of the petitioner, and this is an infirmity which vitiated the order. (3) The Sub-Divisional Magistrate has not recorded any reasons of his being satisfied with regard to likelihood of the breach of peace, nor it can be said from the material on record, that after application of his mind and on being satisfied with regard to apprehension of breach of peace, he passed the impugned order.

(3.) With regard to the first contention, the argument of the learned Counsel for the petitioner was that the Sub-Divisional Magistrate omitted to notice that the litigation to which he had made reference was the litigation in OS.139/71 on the file of the Munsiff of Srirangapatna. That suit was instituted by the member of the first party for injunction, and that the subject matter of the said suit was the property in dispute in this proceeding Though the suit was withdrawn by the plaintiff (member of the first party), since the plaintiff is precluded from instituting a fresh suit under Or.23 of CPC, the effect of the same is that the Sub-Divisional Magistrate had no jurisdiction to initiate proceedings under S.145 CrPC. Dependence was placed on a decision of this Court in Multani v. Shah Abdu Turab Qudari,(1). It was laid down m the above cited case that if there is a decision of a Civil Court, the Magistrate is expected to respect and sustain it. It was further observed therein that the decision of the Civil Court is not to be confined to final decisions of suits by way of decrees. Even when an interim injunction is granted for the duration of the ponding suit for perpetual injunction, the Civil Court does come to a prima facie finding that the party in whose favour it grants the injunction is in possession of the property, in respect of which the injunction is granted. It is not disputed before me that no interim order of injunction had been made in OS.319/71. The essence of proceeding under Sec.145, CrPC is the determination of the question as to who is in possession. When no finding has been recorded by the Civil Court with regard to possession, mere institution of the suit has no efficacy in the proceeding under S.145 CrPC. Further, even if a civil suit is instituted, the institution of the same ipso facto will not take away the jurisdiction of the Magistrate from initiating proceeding under S.145 CrPC. Reviewing the cases on the point, this matter was expiated in a decision of this Court in Imambu v. Hussenbu, 1960 Mys.L.J. 192. It was observed in that case that :