MUSHTAQ ALI Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Trivedi, J. The present case is under Section 482, Cr. P. C. praying for quashing of the proceedings under Section 145/146, Cr. P. C. in case No. 24 of 1988 in re : Smt. Tanveer Jahan v. Mustaq AH, pending in the court of the Additional City Magistrate, Lucknow.

(2.) THE dispute is in respect of shop No. 2 Safina Restaurant situate at Avadh Corner near K D. Singh Babu Stadium, Luckuow, It is stated that the shop in dispute was purchased in auction by the petitioner from the Lucknow Development Authority in 1983. THE petitioner had deputed Rs. 16. 250/-on 17-5-1983 but thereafter some dispute arose between the petitioner and the Lucknow Development Authority about the premium of the shop in dispute which was finally decides by the High Court in a writ petition No. 6516 of 1986 filed by the petitioner on '1-8-1j86. Incompliance of the said order the petitioner deposited Rs. 60,030/- on 28-8-1986 It is said that Lucknow Development Authority handed over possession of the shop in dispute to the petitioner on 18-5-1983 and the petitioner started running restaurant under the name and style of Safiua Restaurant. It is the cans of the petitioner that opposite party No 4, namly, Smt. Tanvesr Jahan approached the applicant to make her as a partner in the business and, therefore, an agreement of partnership was entered into between the parties After some time a dispute arose between petitioner and opposite party No 4 and, therefore, Suit No. 7 of 1937 as a led by opposite party No. 4 Smt. Tanveer Jahan for declaration in the court of the Civil Judge, Lucknow In the said suit the parties entered into a compromise and they agreed to get their settled through arbitration. Ho thence, the matter could not be decided by the arbitrators. THEreafter the petitioner lad a regular suit (Suit Na. 394 of 198') in the court of t is Civil Judge, Lucknow, for celebration as well as injunction praying that the defendant, namely, Tanvser Jilian be restrained from interfering with the shop in dispute. He further prayed for a decrees for devaluation that the partner-ship entered into between the parties cavil to an 31-10-1937. THE above mentioned suit was descried ex parts on 5-4- 1988 by the Civil Judge, Lucknow. THE Civil Judge decreed the plaintiff's suit for permanent as well as declaration holding that the partnership between the parties can to an end on 31-10-198/. After four days of the decree of 10-4-1938 of P. S. submitted a report that there is a dispute and there is apprehension of the peace, therefore, under 145, Cr. P. C. be initiated. This report is dated 10-4-1918 and it was meteoric in the said report that both the parties failed to produce any paper they will get their rights settled through court. On receipt of this repot the Additional City Magistrate passed an order on 20-4-:'j8s directing the parties to appear before him on 4-5-1988. Oa 4-5-1988 the parties appeared but the case was adjourned for- 17-5-1988. In between the police of P. S Hazratganj again submitted a report on 9-5-1988 stating that there is imminent danger of breach of the peace and, therefore, the property be attached. On receipt of this report the learned Additional City Magistrate passed an order of attachment on 11-5-88 and in compliance of the said order the shop in dispute was attached on 12-5- 1988. It may be mentioned here that opposite party Tan veer Jahan moved an application before the Civil Judge, Lucknow. for setting aside the ex pane decree on 11-4-1988. THE said application was supported by an affidavit in which she stated that on 10-4-1988 police reached the spot and then before the police the applicant told that the ha.-, got an exparte decree, dated 6-4-1988 in his favour and he also informed the suit number etc. She also moved an application for stay of the execution of decree during the pendency of the above mentioned application on which the Civil Judge, Lucknow, stayed execution of the decree on 27-4-1988. On the other hand, the case of opposite party No. 4 is that the shop in dispute is jointly owned by the parties and they were jointly running the business under the name and style of Safina Restaurant. She further stated that petitioner Mustaq Ali was interested to oust the opposite party No. 4 and, therefore, opposite party No. 4 locged a report and on the said report the police made an enquiry and submitted a report for initiation of proceedings under Section 145s Cr, P. C on 10-4-1988. It is not disputed that initially the shop was purchased by the petitioner Mustaq Ali and he was running the restaurant under the name and style of Safina Restaurant. According to opposite party No. 4 a joint application was moved before the Lucknow Development Authority requesting for addition of the name of opposite party No. 4 as owner/allottee of the shop in dispute. THE Lucknow Development Authority by his letter, dated 20-12-1986 informed the parties that the name of opposite party No. 4 has been added as a partner. THE other fact namely, filing of suit as well as application as mentioned above are not disputed by opposite party No. 4.

(3.) ACCORDING to this case of Ram Sumer Puri Mahant (supra) criminal proceedings under Section 145, Cr. P. O. should not be initiated if : (1) civil litigation is pending wherein question of possession is involved and has been adjudicated; (2) during pendency of civil litigation if the parties are in a position to approach the Civil Court for interim orders, such as injunction etc. for adequate protection of property. For example, if Civil Court after considering the question of possession passed a decree in favour of one patty the appeal filled by the other party is pending in the appellate court then any party can very well move an application for stay or injunction etc. for pro tection of property and in these existence criminal proceedings should not be initiated and parties should have raised their grievance before the Civil Court instead of initiating another parallel proceedings in criminal court. It does not mean that pendency of any civil litigation outs the jurisdiction of the criminal court or the orders passed by the criminal court become inoperative as soon as civil suit was hide by any of the parties against the other. It may be useful here to mention the case of Jhummamal alias Devandas v. State of Madhya Pradesh, (1988) 4 Supreme Court Cases 452 in which the Hon'ble Supreme Court after considering the case of Ram Sumer Puri Mahant (supra) observed at page 456 as follows : "we fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer case. The ratio of the said decision is that a patty should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the some subject-matter. That does not mean that a concluded order under Section 145, Cr. P. O. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful partly has approached the Civil Court. An order made under Section 145, Cr. P. C. deals only with the factum of posses sion 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. He may file a suit for declara tion and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached. " In view of the above mentioned principle of law in my opinion it is now settled that parallel proceedings in criminal court should not be initiated if civil litigation a mentioned above is pending between the parties.