N. KANNAN Vs. VASANTHA

JUDGEMENT

(1.) THIS revision is preferred against the order of the Sub Divisional Magistrate, Mayiladuthurai in MC.No.25 of 1993 passed on 23.8.1993 under Section 145 Crl. P.C.

(2.) TMT . Vasantha wife of Kannan namely the respondent herein, called A Party filed before the Sub Divisional Magistrate, Mayiladuthurai an application on 16.4.1993, stating that her husband, Kannan namely the petitioner herein, in violation of the agreement arrived at on 21.3.1991 in the presence of Panchayatars dispossessed her of the land measuring 0.16 cents, offered to her at the time of agreement and that it was in her possession and that her husband has been threatening her possession. On this petition, the Sub Divisional Magistrate, Mayiladuthurai passed an order on 16.4.1993 holding that there is likelihood of breach of peace in the region and therefore directed A and B parties to appear before him on 26.4.1993. The revision petitioner herein accordingly appeared before RDO and filed his counter statement. The RDO then held an enquiry and passed an order holding that the property measuring 0.16 cents comprised in Survey No.266/14 namely a thatched building along with the electricity connection, was in the possession of the A party, Tmt. Vasantha even for a period of two months prior to the initiation of the proceedings and that therefore, the same shall be left in the possession and enjoyment of Tmt. Vasantha by ignoring all others, who shall vacate the same. Aggrieved by the order of the Sub Divisional Magistrate, Mayiladuthurai, the revision petitioner has preferred this revision.

(3.) NOW acting on this provision under Section 145 Cr. PC. the Magistrate has passed the impugned order. It is not known under what circumstances, the Magistrate came to the opinion that breach of peace is likely to result in the circumstances of the case. Here the dispute is between the husband and the wife. There is nothing on the record to show that this dispute between the husband and wife has assumed such great proportions as to give room for apprehension of breach of peace and public tranquility. Not only that, we further find that the revision petitioner herein has in his answer to the notice to the order passed under Section 145(1) Cr. P.C. has filed written statement wherein he has clearly stated that the mother of B party, i.e. the mother petitioner herein has filed suit in O.S.No.422 of 1993 and has obtained an interim injunction in respect of the same property restraining the A and B parties from interfering with the possession of the said Kanakavalli. When it has been brought to the notice of the sub Divisional Magistrate, then in view of the decision of the Supreme court reported in Ramsumer Puri Mahant v. State of U.P. ( : 1985 L.W.(Crl.) 84) when the Sub Divisional Magistrate has been appraised of the parallel proceedings before the competent court with reference the same property. It is not proper that the Sub Divisional Magistrate should proceed with the matter. He should have immediately dropped further proceedings. This matter is made more clear by the judgment of our High Court reported in Magdoom. K.S. v. N.S. Jalal and Another ( : 1988 L.W.(Crl.) 89) emphasizing that parallel proceedings under Section 145Cr.P.C. ought not to be conducted, when a civil litigation is pending. Here in this case, it has been brought to the notice of the Executive Magistrate, that the mother of the petitioner herein has filed suit before the District Munsif Court, Mayiladuthurai with reference to the same property and had obtained interim injunction restraining both the A and B parties from interfering with her possession. Therefore, when a competent Civil Court has been seized of the matter, the proper course for the Executive Magistrate, to refrain from proceeding further in the matter. The Supreme Court has therefore, held in the decision reported in, 1985 L.W. (Cri) 84 "that when a civil litigation is pending in respect of the property where the question of possession is involved, and there is only parallel proceedings under Section 145 Cr. P.C. 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. It cannot also be disputed 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". Here, in this case, the Executive Magistrate ought to see that once the pendency of the proceedings before a competent Civil Court and the obtaining of injunction with reference to the same property, by one Kanakavalli Ammal, again A and B parties is brought to the notice, in all humanity, the Sub Divisional Magistrate ought to have brought the proceedings to a halt. Instead he has continued further with the proceedings and has thus chosen to waste public time. Not only that, when an injunction has been granted to third party with reference to the same property, the Executive Magistrate finds possession of the property with A party and orders were passed in the petition filed by the A party. This would definitely lead to ridiculous and unenviable position. Having been apprised of the concomitance of civil jurisdiction the Magistrate ought to have and of respect to the civil forum should have refrained from extending his jurisdiction into his spheres. That is what has been done by the Magistrate and it cannot be allowed in the circumstances and in law. Therefore, in such circumstances I am satisfied that the order passed by the Sub Divisional Magistrate, Mayiladuthurai cannot be sustained at all. In such circumstances, I have no option, but to order termination of the proceeding commenced by the Executive Magistrate, since there is already an order of injunction by competent Court, with reference to the same property in favour of one Kanakavalli Ammal, the mother of the petitioner herein, it is always open to the parties to approach the said Civil Court for vacating the order of the injunction, or to canvas the correctness of the order before the appropriate appellate forum and pursue such remedies as are open to them under the relevant provisions of law. With this direction, the revision is allowed. The order of the Sub Divisional Magistrate, Mayiladuthurai passed in MC.No.25 of 1993 on 23.8.1993 is hereby set aside and the proceedings before the Executive Magistrate are accordingly hereby terminated.