GHULAM MUSTAFA KHAN Vs. MOHD. RAFIQ MIR

JUDGEMENT

(1.) THIS criminal revision is directed, against the order dated 11.4.1987 passed by the learned City Magistrate, Srinagar, keeping in abeyance the proceedings taken under section 145 of the Cr. P.C. pending disposal of a civil suit between the parties in respect of the same subject matter. The facts giving rise to this revision may be briefly, stated, as under: The disputed shop belongs to the Municipality Srinagar. It was allotted to one Sonaullah Butt somewhere in the year, 1971. He entered into a partnership with the respondent for running some business in that shop on 24.6.1971. The said partnership was dissolved on 28.9.1972 and the respondent, allegedly, continued in possession of the shop. On 14.5.1986 the petitioner filed a civil suit for declaration and perpetual injunction in the court of First Additional Munsif, Srinagar against the respondent wherein be averred that the respondent has transferred the possession of the shop to him in the year, 1975, and since then he has been in the actual physical possession of the shop. Alongwith the Suit, he filed an application for temporary injunction. The trial court on 14.5.1986 issued notice to the opposite side of the same and in the meanwhile, restrained the opposite side from interfering in the possession of the petitioner. The said order of injunction is still in force. On 27.11.1986 the respondent herein filed an application in the court of the Sub -Registrar, Judicial Magistrate, Srinagar for initiation of proceedings under section 145 of the Cr. P.C., and attachment of the disputed shop. The learned Magistrate drew up the preliminary order thereunder on the said date and also attached the disputed shop. On 28.3.1981 the respondent filed an application before the learned Magistrate for keeping in abeyance the proceedings under section 145 Cr. P.C. pending disposal of the civil suit. The learned Magistrate accepted the said application by virtue of the order impugned. The petitioner is aggrieved of the said order mainly because the learned Magistrate has not passed any order about the attached shop while staying the proceedings. I have beard the learned counsel for the parties and have also examined the record thoroughly. Mr. Qayoom firstly raised a. preliminary objection to the maintainability of the revision as according to him, the order impugned was not revisable being an interlocutory order. His objection merits to be over -ruled without any hestitation. The order impugned though appearing ex facie an interim order but in fact it has the effect of a final order. If construed strictly, the said order may even amount to dropping of the proceeding as has been held by various authorities. As a matter of fact, the said order has shut the door to reviving of the proceedings. Once the civil court records a finding as to the possession of the disputed property, the question of determining the same in the proceedings of section 145 Cr. P.C., is beyond its scope. In the facts and circumstances of the case, the revision is, therefore, held as maintainable. Now, as regards the merits of the revision, it may be stated at the very outset that the order impugned suffers if not from illegality but definitely from impropriety. There could be some justification for staying the proceedings under section 145 Cr. P.C. pending disposal of the civil suit, though it too is not free from legal implication. As already stated above, what purpose could the staying of the said proceedings serve after the civil suit is disposed of one way or the other. In the civil suit, the main question for determination will be of possession. Once that question is decided by the said court, the proceedings before the Magistrate will become redundant and he will cease to have jurisdiction to decide that question. It is a settled law that the decrees or orders of civil courts relating to possession are to be respected and given effect to by the Magistrate unless and until there is something shown which might induce him to hold that subsequent to the delivery of possession, something has happened which had the effect of disposing the party to whom possession was delivered. Let alone that question, the keeping intact of the order of attachment, while staying the proceedings under section 145 Cr. P.C., appears and is, in the facts and, circumstances of the case, manifestly unjust and improper. The civil proceedings sometimes take decades together for final adjudication, and should in that case the disputed property remain attached till then. This in my opinion, has not caught the attention of the learned Magistrate. He has not said a word on this important question of the case. The very initiation of proceeding by the respondent under section 145 Cr. P.C., are apparently, not in good faith, more so, when a civil court had long before that issued an order of injunction against him. The said order is still in force and the presumption is that the petitioner remains in possession, and the respondent stands restrained from interfering in his possession. It is with ulterior motive of depriving the petitioner from the possession of the shop that the application for its attachment was made. Had he been in possession, why should he get. it attached and get himself dispossessed of the same. Then again, the application filed for staying the proceedings under section 145 Cr. P.C. pending disposed of the civil suit, also suffers from the same vice. It has been made with the design to keep the petitioner out of possession as long as it could be. The learned Magistrate appears to have fallen in trap not only when he attached the said property but also when he stayed the proceedings and kept the attachment intact. The Courts are supposed to protect the legal rights of the parties and not to make them suffer hardships by their orders. As noticed above, the petitioner has filed the civil suit on 14.5.1986, and on the same day an order of injunction was passed against the respondent. The said order is very much in force even now and has not been assailed. So far, it is on 27.11.1986 that the respondent filed the application under section 145 and got the disputed shop attached. Why the laid proceedings were got initiated when the parties were facing trial on the question of possession in the civil court, is the question? The answer is very simple that the respondent wanted to circumvent the civil proceedings by depriving the petitioner from the possession of the shop. There is abundant documentary proof on the file to show that the petitioner has been in possession of the disputed shop since long. Eviction proceedings in respect of the same shop were pending against him before the Municipal authorities even in the year, 1983, as he was then an un -authorised occupant of the said shop. He has been paying the rent and all other taxes and dues of the said shop to the concerned authorities, since long. The un -authorised occupation of the said shop has been regularized in his favour by the Municipality by allotting the shop to him on 25.11 86 well before the initiation of the proceedings under section 145 Cr. P.C. As against this, there is nothing on the file to show that the respondent was ever in possession of the disputed shop after the partnership between him and Sonaullah Butt got dissolved in, 1972, and in any case after, 1975, when according to the petitioner, the respondent transferred its possession to him. Needless to mention, that under section 145 Cr. P.C. the Magistrate's only duty is to determine who is in actual possession on or within two months before passing of the preliminary order and not who has the right to possession, and œactual possession" means actual physical possession, even though wrongful. The object of Section 145 Cr. P.C. is merely to prevent a breach of the peace by maintaining one or other of the parties in the possession, which the court finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil court. Unfortunately, this Section is frequently mis applied. Magistrates should be careful to see that the criminal courts are not used by the parties for the settlement of civil disputes or for maneuvering for position for the purpose of subsequent civil litigation, or an easy way of getting possession of the property in dispute without going to the civil court or for driving the other side to the civil court to prove his title. The practice of taking to the criminal courts for a preliminary skirmish disputed questions of right and title is much to be deprecated. As a successful criminal proceeding offers certain advantages, persons of means are not infrequently tempted to resort to this Section as a trial of strength before civilization. In view of the above discussion, I am of the opinion, that the learned Magistrate has committed an Impropriety in keeping the order of attachment of the disputed shop intact while staying the proceedings under section 145 Cr. P.C., pending disposal of the civil suit between the parties regarding the said shop. I think in the facts and circumstances of the case, it would be just and proper to rectify the order impugned to the extent of vacating the said order of attachment subject to the orders of the civil court. It is, therefore, hereby directed that the attached shop .hall be handed over to the person from whose possession. It was attached and such possession shall be subject to the orders of the civil court. The learned City Magistrate, Srinagar, is directed accordingly. Let the revision file be consigned to records. The original file be remitted back to the court of City Magistrate Srinagar. This revision is, accordingly disposed of.