KHUNNI MAL Vs. MOHD AAKIL

JUDGEMENT

(1.) This criminal revision is directed against the judgment and order dated 9/11/1987 passed by Mr. S.B. Vajsh, VIIth Additional Sessions Judge, Moradabad in Criminal Revision No 22 of 1986, the learned Judge set aside the order and judgment dated 17/12/1985, passed by the Sub-Divisional Magistrate, Bilari Moradabad in Criminal Case No. 34/11 under section 145 Cr. P.C. pertaining to police station Chandausi, district Moradabad.

(2.) Briefly stated the facts of the case are that the dispute under section 145 Cr. P.C. related to a piece of land. In respect of the same land, a Civil Case No. 68 of 1980 had been filed by Tikam Sahai against Khunni Mal as Opp. party (now revisionist) and opposite party Nos. 1 to 4 as well as some other persons, In all there were 31 opposite parties in that civil suit. The plaint of that case has been placed on the record of this revision and it shows that the suit was for permanent injunction to restrain the defendants from interfering with the plaintiffs exercise of his right as tenant of the land in suit and his possession thereof and to restrain them from interfering with the plaintiffs door at points 'X' and Y. The interim injunction was granted to the plaintiff on 19.3.1980 and then it was confirmed by order dated 31.7.1980. There is no dispute about these fact before me. After the passing of these orders, the present proceedings under section 145 of the Code of Criminal Procedure were started by Khunnimal, through a petition moved before the Sub-Divisional Magistrate, Bilari. The learned Magistrate passed the preliminary order and got the property attached and called upon both the parties to file their written statements. On 18.8.1981 Tikam Sahai now Opp. party No. 5 moved an application before the learned Magistrate (a certified copy of the same has been placed on the record before me), in which be took the stand that he had already filed an injunction suit No. 68 of 1980 against Khunnimal and others in which the land in dispute is involved and he has obtained from the lInd Munsif Chandausi an order of injunction to restrain Khunnimal and others from interfering with his possession on this land. As such it was contended that Khunnimal had now no locus standi to initiate the proceedings under section 145 of the Code of Criminal Procedure and the proceedings being illegal, wrong and unwarranted may now be dropped.

(3.) The learned Magistrate heard the parties and decided this petition by his order dated 12/10/1981. He rejected this petition bolding that the pendency of a civil suit was no bar to the continuance of the proceedings under section 145 Cr. P.C. Against this order of dismissal dated 12/10/1981 a revision was admittedly filed and was dismissed and now a petition under section 482 of the Code of Criminal Procedure being Misc. case No. 2155 of 1982 Tikam Sahai v. Khunnimal etc. is pending in the High Court. It is conceded that in those proceedings of section 482 Cr. P.C. also stay has been refused. With this background of the position Tikam Sahai moved another application this time on 1.6.85, almost with the same allegations that he had obtained an injunction in case No. 68 of 1980 from the Court of the Munsif, Chandausi on 19/3/1980, which was subsequently confirmed by the lInd Additional Munsif on 31/7/1980 and the opposite parties including Khunnimal had been restrained from interfering with his peaceful possession of the property in question. This property is also in dispute in proceedings under section 145 Cr. P.C. It was contended that in view of the pendency of the civil case and the confirmation of the injunction order, with a view to avoid multiplicity of litigation and in the interest of justice, it is necessary that proceedings under section 145 Cr. P.C. should not continue. Reference is made to the case of Ram Sumer Pun Mahant v. State of U.P.