CASE NO.: Appeal (civil) 10906 of 1996 PETITIONER: Shanti Kumar Panda RESPONDENT: Shakutala Devi DATE OF JUDGMENT: 03/11/2003 BENCH: R.C. LAHOTI & ASHOK BHAN. JUDGMENT:
J U D G M E N T
R.C. LAHOTI, J.
Shanti Kumar Panda, the appellant before us lodged a complaint
with Station Officer, Line Bazar, Jaunpur, whereupon the police filed a
report before the Sub-Divisional Magistrate (S.D.M.) Sadar, Jaunpur,
who made a preliminary order under Section 145(1) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’, for
short) recording his satisfaction that a dispute, likely to cause a breach
of the peace, exists concerning the shop, which is the subject matter
of dispute (hereinafter referred to as ‘the shop’, for short) between the
appellant and one Kamta Prasad (not a party in this appeal) and
requiring both of them to attend his court and put in the written
statements of their respective claims as respects the fact of actual
possession of the shop. The learned S.D.M. also found that the case
was one of emergency and therefore he directed the shop to be
attached under Section 146(1) of the Code. The preliminary order
under Section 145(1) and the order of attachment under Section
146(1) were both made on 16.5.92. Kamta Prasad appeared and
stated that he had nothing to do with the shop and the owner of the
property, who was also in possession thereof, was one Shakuntala
Devi (respondent No.1 herein, hereinafter referred to as ‘the
respondent’, for short). Kamta Prasad also submitted that the
appellant had deliberately not impleaded the respondent as a party to
the proceedings as he was in collusion with the police and wanted to
deprive Shakuntala Devi of her lawful possession over the shop.
Shakuntala Devi, on becoming aware of the proceedings (obviously on
the information provided by Kamta Prasad), moved an application
before the learned S.D.M. stating that she was a party interested in
the subject matter of dispute and as she was in peaceful possession of
the shop, she ought to have been joined as party to the proceedings
and as that not done, she prayed for her impleadment and an
opportunity of being heard.
The learned S.D.M. kept the application filed by the respondent
pending till 6.7.92 when the proceedings were directed to be disposed
of by a final order. No opportunity was allowed to the respondent to
join in the proceedings and to file her own claims as to the possession
of the shop. The learned S.D.M. held that the appellant was in
possession over the disputed shop on the date of the passing of the
preliminary order as also in the two months prior thereto. Having
made that declaration the learned S.D.M. directed that until the rights
were determined by the competent court, the shop shall be released in
favour of Shanti Kumar Panda, the appellant.
Shakuntala Devi, the respondent and Kamta Prasad both
preferred revision petitions against the order of the learned S.D.M. By
order dated 27.2.93 the learned Additional Sessions Judge directed the
revision to be dismissed by holding that the order of the learned
S.D.M. did not suffer from any infirmity. Both these orders were put in
issue by the respondent and Kamta Prasad by filing a petition under
Article 226 of the Constitution in the High Court which too was
dismissed on 6.12.93. One of the reasons which has prevailed with
the High Court for dismissing the petition is that the respondent had
already approached the Civil Court and the jurisdiction of the Civil
Court having been invoked, which was an efficacious alternative
remedy available to the respondent, it was not appropriate for the
High Court to entertain the writ petition and exercise its jurisdiction
under Article 226 of the Constitution.
Soon after the decision by the learned Additional Sessions Judge
on 27.2.93, Shakuntala Devi, the respondent, filed civil suit No.283 of
1993 based on title, seeking a permanent preventive injunction
against Shanti Kumar Panda, the appellant herein. Kamta Prasad who
alone was impleaded by the respondent as the party in the
proceedings under Sections 145/146 of the Code was not impleaded as
a party in the civil suit filed by the respondent Shakuntala Devi,
inasmuch as the impleadment of Kamta Prasad who was not claiming
any interest and not even possession over the shop was considered to
be unnecessary. The respondent also sought for an ad-interim
preventive injunction so as to protect her possession over the shop.
By order dated 5.8.95 the learned Civil Judge allowed the application
filed by the respondent and directed the appellant to remain restrained
from interfering with the possession of the respondent over the shop.
The learned Civil Judge also directed a court officer to go at the site of
the shop and after opening the locks to put the respondent in
possession of the shop. It would be relevant to note some of the
observations, pungent to some extent, made by the learned Civil
Judge during the course of his order. The learned Civil Judge observed
that the proceedings under Sections 145/146 of the Code had
proceeded in the absence of the respondent who was not even allowed
an opportunity of being heard though she was the real person claiming
possession and also title over the shop. The learned Judge said –
“She was not even offered the opportunity of being
heard. The real fact is that after the death of Smt.
Tapesara the anti social elements conspired to grab
her house and shop and under that conspiracy the
sister of Tapesara, i.e., Shakuntala Plaintiff whose
possession was over the disputed house and shop
wanted to eject her forcibly and the administration
fully helped in evicting the plaintiff from her house
and shop..it is clear that the plaintiff was in
possession and still she is in possession. Merely by
taking advantage of the condition of the plaintiff
the Sub-Inspector and the S.D.M. under the
proceeding under Section 145 Cr.P.C. got locked
the shop and house and the plaintiff is again
entitled to live therein. If it is not so any one could
take possession of any one’s house in collusion
with the administration. The day it is done that
day will become a symbol of injustice in the
societyThe one who is not a party to the
proceeding under Section 145 Cr.P.C. the finding
given under Section 145 Cr.P.C. is not binding on
him.”
The appellant preferred a miscellaneous appeal. The learned
District Judge, vide his order dated 15.11.95, allowed the same and
set aside the order dated 5.8.95 passed by the learned Civil Judge.
The principal reason which has prevailed with the learned District
Judge was that the proceedings under Section 145 of the Code having
terminated in favour of Shanti Kumar Panda, the appellant, the trial
court was not justified in issuing the order of injunction unless and
until the order of the learned S.D.M. was superseded by a decree of
the Civil Court and that no injunction can be granted when the
disputed property is in custodia legis.
The respondent preferred a petition under Article 227 of the
Constitution. The High Court has allowed the petition, set aside the
order of the learned District Judge and restored the order passed by
the learned Civil Judge. Feeling aggrieved by the order of the High
Court this appeal has been preferred by special leave.
Mr. Sunil Gupta, the learned Senior Counsel appearing for the
appellant, has forcefully urged, placing reliance on the phraseology
employed by the Parliament in drafting Section 145 of the Code, that
once an order under Sections 145 and/or 146 of the Code has been
passed, finally terminating proceedings thereunder, then it is only a
decree for eviction passed by a Civil Court in a suit based on title filed
by the party unsuccessful before the learned S.D.M. which would
supersede the order passed by the Magistrate, which order continues
to remain in operation and ought to be respected not only by the
parties thereto but also by the Civil Court. In other words, he
submitted that an order of temporary injunction inconsistent with the
order of the Magistrate under Sections 145/146 of the Code or
superseding it cannot be passed by the Civil Court.
Mr. Jayant Bhushan, the learned Senior Counsel, who initially
represented the respondent before being designated as senior
advocate, appeared at the time of hearing and submitted that though
he was not instructed to appear yet he is available to assist the Court
to place the correct legal position in spite of his having given up the
brief to the respondent. We appreciate the gesture shown by him. He
has adopted a line of reasoning opposite to the one adopted by Mr.
Sunil Gupta and has supported the order of the trial court restored by
the High Court. The rival submissions made before us raise certain
important issues touching the value and efficacy of the final order
passed under Sections 145/146 of the Code in the proceedings
wherein that order is called in question.
Sections 145 and 146 of the Code, insofar as they are relevant
for our purpose are extracted and reproduced hereunder:
“145. Procedure where dispute concerning
land or water is likely to cause breach of
peace.
(1) Whenever an Executive Magistrate is satisfied
from a report of a police officer or upon other
information that a dispute likely to cause a
breach of the peace exists concerning any land
or water or the boundaries thereof, within his
local jurisdiction, he shall make an order in
writing, stating the grounds of his being so
satisfied, and requiring the parties concerned
in such dispute to attend his Court in person
or by pleader, on a specified date and time,
and to put in written statements of their
respective claims as respects the fact of actual
possession of the subject of dispute.
(2) & (3) *** ***
(4) The Magistrate shall then, without reference to
the merits or the claims of any of the parties
to a right to possess the subject of dispute,
pursue the statements so put in, hear the
parties, receive all such evidence as may be
produced by them, take such further evidence,
if any, as he thinks necessary, and, if possible,
decide whether any and which of the parties
was, at the date of the order made by him
under sub-section (1), in possession of the
subject of dispute :
Provided that, if it appears to the Magistrate
that any party has been forcibly and
wrongfully dispossessed, within two months
next before the date on which the report of a
police officer or other information was
received by the Magistrate, or after that date
and before the date of his order under sub-
section (1), he may treat the party so
dispossessed as if that party had been in
possession on the date of his order under sub-
section (1).
(5) Nothing in this section shall preclude any party
so required to attend, or any other person
interested, from showing that no such dispute
as aforesaid exists or has existed; and in such
case the Magistrate shall cancel his said order,
and all further proceedings thereon shall be
stayed, but, subject to such cancellation, the
order of the Magistrate under sub-section (1)
shall be final.
(6) (a) If the Magistrate decides that one of the
parties was, or should under the proviso to
sub-section (4) be treated as being, in such
possession of the said subject, he shall issue
an order declaring such party to be entitled to
possession thereof until evicted therefrom in
due course of law, and forbidding all
disturbance of such possession until such
eviction; and when he proceeds under the
proviso to sub-section (4), may restore to
possession the party forcibly and wrongfully
dispossessed.
(b) The order made under this sub-section
shall be served and published in the manner
laid in sub-section (3).”
146. Power to attach subject of dispute and to
appoint receiver.
(1) If the Magistrate at any time after making the
order under sub-section (1) of Section 145
considers the case to be one of emergency, or
if he decides that none of the parties was then
in such possession as is referred to in Section
145, or if he is unable to satisfy himself as to
which of them was then in such possession of
the subject of dispute, he may attach the
subject of dispute until a competent Court has
determined the rights of the parties thereto
with regard to the person entitled to the
possession thereof :
Provided that in the event of a receiver being
subsequently appointed in relation to the
subject of dispute by any Civil Court, the
Magistrate
(a) shall order the receiver appointed by him
to hand over the possession of the subject of
dispute to the receiver appointed by the Civil
Court and shall thereafter discharge the
receiver appointed by him.
(b) may make such other incidental or
consequential orders as may be just.
Possession is nine points in law. One purpose of the
enforcement of the laws is to maintain peace and order in society. The
disputes relating to property should be settled in a civilized manner by
having recourse to law and not by taking the law in own hands by
members of society. A dispute relating to any land etc. as defined in
sub-section (2) of Section 145 having arisen, causing a likelihood of a
breach of the peace, Section 145 of the Code authorizes the Executive
Magistrate to take cognizance of the dispute and settle the same by
holding an enquiry into possession as distinguished from right to
possession or title. The proceedings under Sections 145/146 of the
Code have been held to be quasi-civil, quasi-criminal in nature or an
executive on police action. The purpose of the provisions is to provide
a speedy and summary remedy so as to prevent a breach of the peace
by submitting the dispute to the Executive Magistrate for resolution as
between the parties disputing the question of possession over the
property. The Magistrate having taken cognizance of the dispute would
confine himself to ascertaining which of the disputing parties was in
possession by reference to the date of the preliminary order or within
two months next before the said date, as referred to in proviso to sub-
section (4) of Section 145, and maintain the status quo as to
possession until the entitlement to possession was determined by a
court, having competence to enter into adjudication of civil rights,
which an Executive Magistrate cannot. The Executive Magistrate
would not take cognizance of the dispute if it is referable only to
ownership or right to possession and is not over possession simpliciter;
so also the Executive Magistrate would refuse to interfere if there is no
likelihood of breach of the peace or if the likelihood of breach of peace
though existed at a previous point of time, had ceased to exist by the
time he was called upon to pronounce the final order so far as he was
concerned.
There is a difference between a case where the subject-matter
of dispute is not attached by the Executive Magistrate under Section
146(1) and the case where it is so attached. Under sub-section (1) of
Section 145 a preliminary order taking cognizance of the dispute
having been passed, the Magistrate would under sub-section (4)
decide who was in possession of the disputed property on the date of
the passing of the preliminary order. Consistently with such finding, a
declaration by Magistrate in favour of such party would follow under
sub-section (6) entitling it to retain possession over such property
until evicted therefrom in due course of law. And until such eviction all
disturbances in its possession shall be forbidden. If any party is found
to have been forcibly or wrongfully dispossessed within two months
next before the date on which the report of a police officer or other
information setting the Magistrate in motion was received by him or
between such date and the date of order under sub-section (1), then
the party dispossessed has to be fictionally treated as one in
possession on the date of preliminary order under sub-section (1).
The declaration of entitlement to possession under proviso to sub-
section (4) read with sub-section (6) shall be made in favour of such
party and the party found to have been so dispossessed forcibly and
wrongfully may also be restored into possession. The declaration
having been made, it would be for the unsuccessful party to approach
the competent court and secure such order as would enable his
entering into possession and evicting the party successful in
proceedings under Section 145.
What is an eviction “in due course of law” within the meaning of
sub-section (6) of Section 145 of the Code? Does it mean a suit or
proceedings directing restoration of possession between the parties
respectively unsuccessful and successful in proceedings under Section
145 or any order of competent court which though not expressly
directing eviction of successful party, has the effect of upholding the
possession or entitlement to possession of the unsuccessful party as
against the said successful party. In our opinion, which we would
buttress by reasons stated shortly hereinafter, ordinarily a party
unsuccessful in proceedings under Section 145 ought to sue for
recovery of possession seeking a decree or order for restoration of
possession. However, a party though unsuccessful in proceedings
under Section 145 may still be able to successfully establish before the
competent court that it was actually in possession of the property and
is entitled to retain the same by making out a strong case
demonstrating the finding of the Magistrate to be apparently incorrect.
In a case where attachment has been made under Section
146(1) of the Code, it is not necessary for the unsuccessful party to
seek the relief of possession from the court; a mere adjudication of
rights would suffice inasmuch as the attached property is held custodia
legis by the Magistrate for and on behalf of the party who would be
successful from the competent court by establishing his right to
possession over the property.
Mr. Sunil Gupta, the learned Senior Counsel for the appellant
submitted, reading literally the sub-section (6) of Section 145 of the
Code, that declaration of the successful party “to be entitled to
possession thereof until evicted therefrom in due course of law, and
forbidding all disturbance of such possession until such eviction”
means that the Parliament intended to confer a binding efficacy on the
Magistrate’s order not only qua the parties to the proceedings but also
qua all concerned to respect and abide by the order of the Executive
Magistrate and such order and the possession of the successful party
protected thereunder shall continue to survive and hold valid and good
unless at the final adjudication of civil rights the competent court has
directed the party successful in proceedings before the Magistrate to
be evicted, whence and whence alone that party shall lose possession
and bound to hand over the same to the party successful in the Civil
Court.
It is well-settled that a decision by a Criminal Court does not
bind the Civil Court while a decision by the Civil Court binds the
Criminal Court (See Sarkar on Evidence, Fifteenth Edition, page
845). A decision given under Section 145 of the Code has relevance
and is admissible in evidence to show :- (i) that there was a dispute
relating to a particular property; (ii) that the dispute was between the
particular parties; (iii) that such dispute led to the passing of a
preliminary order under Section 145(1) or an attachment under
Section 146(1), on the given date, and (iv) that the Magistrate found
one of the parties to be in possession or fictional possession of the
disputed property on the date of the preliminary order. The reasoning
recorded by the Magistrate or other findings arrived at by him have no
relevance and are not admissible in evidence before the competent
court and the competent court is not bound by the findings arrived at
by the Magistrate even on the question of possession through, as
between the parties, the order of the Magistrate would be evidence of
possession. The finding recorded by the Magistrate does not bind the
Court. The competent court has jurisdiction and would be justified in
arriving at a finding inconsistent with the one arrived at by the
Executive Magistrate even on the question of possession. Sections
145 and 146 only provide for the order of the Executive Magistrate
made under any of the two provisions being superseded by and giving
way to the order or decree of a competent court. The effect of the
Magistrate’s order is that burden is thrown on the unsuccessful party
to prove its possession or entitlement to possession before the
competent court.
In Bhinka & Ors. Vs. Charan Singh , AIR 1959 SC 960, this
Court held that the Magistrate does not purport to decide a party’s title
or right to possession of the land but expressly reserves that question
to be decided in due course of law. His order is a temporary order
irrespective of the rights of the parties, which will have to be agitated
and adjudicated upon by a competent forum and in the manner
provided by law. The life of the said order is coterminous with the
passing of a decree by a Civil Court and the moment a Civil Court
makes an order of eviction, it displaces the order of the Criminal
Court. The orders under Section 145 of the Code are thus merely
police orders and do not decide any question of title.
We would like to clarify that in the case of Bhinka and Ors.
(supra) the question what is a competent court, did not arise for
determination; nor did the question as to what is the weight and value
to be assigned to or what is the efficacy of the order of the Magistrate
in a subsequent suit or proceeding initiated before a competent court
directly arise for consideration. This we say because it is also well-
settled that Sections 145 and 146 nowhere specifically provide for the
order of the Magistrate being subject to and superseded by only a
decree of ‘Civil Court’. The words ‘competent court’ used in Section
146 (1), in the context in which they have been used, only mean “any
court which has jurisdictional competence to decide the question of
title or rights to the property or entitlement to possession based on
right or title to the property though the court is not necessarily a Civil
Court”. The words ‘until evicted therefrom in due course of law’ as
occurring in sub-section (6) of Section 145‘ mean the eviction of the
party successful before the Magistrate, consequent upon the
adjudication of title or right to possession by a competent court; that
does not necessarily mean a decree of eviction. The party
unsuccessful before the Magistrate may dispute the correctness of the
finding arrived at by the Magistrate and is at liberty to show before the
competent court that it had not dispossessed the successful party or
that it is the unsuccessful party and not the successful party who was
actually in possession and the finding to the contrary arrived at by the
Magistrate was wholly or apparently erroneous and unsustainable in
law.
In Jhunamal alias Devandas Vs. State of Madhya Pradesh
& Ors. , (1988) 4 SCC 452, this Court has held that a concluded order
under Section 145, Cr.P.C., made by the Magistrate of competent
jurisdiction should not be set at naught merely because the
unsuccessful party has approached the civil Court. An order made
under Section 145, Cr.P.C., deals only with the factum of possession 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 a properly
constituted suit. He may file a suit for declaration and prove a better
right to possession. The civil Court has jurisdiction to give a finding
different from that which the Magistrate has reached. Here again we
may hasten to add that the expression ‘civil court’ used by this Court
in Jhunamal’s case (supra) means competent court and not
necessarily a civil court as commonly understood.
At what stage may the competent court arrive at a finding
inconsistent with the one given by the Magistrate? Is it correct to say
that the finding recorded by the Magistrate can be dislodged only at
the time of and by passing a final decree terminating the suit? Or,
whether the competent court can, depending on the facts and
circumstances of a given case, arrive at a finding different from the
one recorded by the Magistrate even at the state of interlocutory order
such as one of injunction or appointment of receiver during the
pendency of the suit?
We have already indicated hereinabove the extent of relevance
of an order under Sections 145/146 of the Code in a subsequent civil
action between the parties. In a civil action between different parties
the finding of a criminal court cannot be treated as binding except to
the extent of being evidence of the factum of a particular judgment
having been delivered by the particular criminal court on a particular
date as already indicated hereinabove. In Anil Behari Ghosh Vs.
Smt. Latika Bala Dassi & ors., AIR 1955 SC 566 this Court has held
that in a proceeding for revocation of a grant of probate under Section
263 of the Succession Act the previous judgment of the Criminal Court
convicting the son of the murder of his father and sentencing him to
transportation for life is not admissible in evidence of the fact that the
son was the murderer of the testator. That is a question to be decided
on evidence. The judgment of the Criminal Court is relevant only to
show that there was such trial resulting in such conviction and
sentence of the son to transportation for life.
The order of the magistrate under Section 145/146 of the Code
is not only an order passed by Criminal Court but is also one based on
summary enquiry. The competent Court in any subsequent
proceedings is free to arrive at its own findings based on the evidence
adduced before it on all the issues arising for decision before it. At the
stage of judgment by Civil Court the order of the magistrate shall be of
almost no relevance except for the purpose of showing that an enquiry
held by the magistrate had resulted into the given declaration being
made on a particular date. The competent Court would be free to
record its own findings based on the material before it even on the
question of possession which may be inconsistent with or contrary to
the findings arrived at by the magistrate.
At the stage of passing an interlocutory order such as on an
application for the grant of ad interim injunction under Rule 1 or 2 of
Order 39 of the CPC, the competent Court shall have to form its
opinion on the availability of a prima facie case, the balance of
convenience and the irreparable injury __ the three pillars on which
rests the foundation of any order of injunction. At that stage material
in the shape of affidavits, documents and pleadings is placed before
the Court for its consideration. The order of the Executive Magistrate
may also be placed before it, who having held an enquiry, though
summary in nature, has arrived at a finding on the question of
possession which the Code intends to be sustained unless the Court of
competent jurisdiction by its judicial order supersedes the finding or
the effect of such finding and till then all disturbances in possession of
the successful party are intended by the Code to be forbidden. The
Civil Court shall also respect such order and will be loath to arrive at
an interim arrangement inconsistent with the one made by the
Executive Magistrate. However, this is far from holding that the Civil
Court does not have jurisdiction to make an order of injunction
inconsistent with the order of the Executive Magistrate. The
jurisdiction is there but the same shall be exercised not as a rule but
as an exception. There may be cases such as one where the order of
the Executive Magistrate can be shown to be without jurisdiction,
palpably wrong or containing self-contradictory findings. For example,
the Magistrate may have made an order treating the party
dispossessed beyond two months to be as in possession. There may
be cases where in spite of the order made by the Executive Magistrate
based on the evidence adduced before it, the competent court, based
on the material produced before such Court, may be inclined to hold
that prima facie a very strong case for retaining or placing one of the
parties in possession of the suit property is made out or where it will
be totally unjust or inequitable to continue one party in possession of
the property as ordered by the Executive Magistrate. In such
exceptional situations, the competent court (which will mostly be a
civil court) may have jurisdiction for granting an order of injunction in
departure from the findings recorded and the declaration made by the
Executive Magistrate under Section 145 of the Code of Criminal
Procedure. The order under Section 146 of the Code would not pose a
problem of that magnitude. Inasmuch as the property is under
attachment and is placed in the hands of a receiver the Civil Court can
comfortably examine whether it would be just and expedient to
continue with the attachment and with the same receiver or to appoint
another receiver or to make some other interim arrangement during
the pendency of the civil suit.
For the purpose of legal proceedings initiated before a
competent court subsequent to the order of an Executive Magistrate
under Sections 145/146 of the Code of Criminal Procedure, the law as
to the effect of the order of the Magistrate may be summarized as
under:-
(1) The words ‘competent court’ as used in sub-section (1) of
Section 146 of the code do not necessarily mean a civil court
only. A competent court is one which has the jurisdictional
competence to determine the question of title or the rights of
the parties with regard to the entitlement as to possession over
the property forming subject matter of proceedings before the
Executive Magistrate;
(2) A party unsuccessful in an order under Section 145(1) would
initiate proceedings in a competent court to establish its
entitlement to possession over the disputed property against the
successful party. Ordinarily, a relief of recovery of possession
would be appropriate to be sought for. In legal proceedings
initiated before a competent court consequent upon attachment
under Section 146(1) of the Code it is not necessary to seek
relief of recovery of possession. As the property is held custodia
legis by the Magistrate for and on behalf of the party who would
ultimately succeed from the court it would suffice if only
determination of the rights with regard to the entitlement to the
possession is sought for. Such a suit shall not be bad for not
asking for the relief of possession.
(3) A decision by a criminal court does not bind the civil court while
a decision by the civil court binds the criminal court. An order
passed by the Executive Magistrate in proceedings under
Sections 145/146 of the Code is an order by a criminal court
and that too based on a summary enquiry. The order is entitled
to respect and weight before the competent court at the
interlocutory stage. At the stage of final adjudication of rights,
which would be on the evidence adduced before the court, the
order of the Magistrate is only one out of several pieces of
evidence.
(4) The Court will be loath to issue an order of interim injunction or
to order an interim arrangement inconsistent with the one made
by the Executive Magistrate. However, to say so is merely
stating a rule of caution or restraint, on exercise of discretion by
Court, dictated by prudence and regard for the urgent/emergent
executive orders made within jurisdiction by their makers; and
certainly not a tab on power of Court. The Court does have
jurisdiction to make an interim order including an order of ad-
interim injunction inconsistent with the order of the Executive
Magistrate. The jurisdiction is there but the same shall be
exercised not as a rule but as an exception. Even at the stage
of passing an ad-interim order the party unsuccessful before the
Executive Magistrate may on material placed before the Court
succeed in making out a strong prima facie case demonstrating
the findings of the Executive Magistrate to be without
jurisdiction, palpably wrong or self-inconsistent in which or the
like cases the Court may, after recording its reasons and
satisfaction, make an order inconsistent with, or in departure
from, the one made by the Executive Magistrate. The order of
the court final or interlocutory, would have the effect of
declaring one of the parties entitled to possession and evicting
therefrom the party successful before the Executive Magistrate
within the meaning of sub-section (6) of Section 145.
In the present case, the trial Court has felt strongly against the
police action taken under Section 145(1) of the Code. This can clearly
be inferred from the observations contained in the order of the learned
Civil Judge. The plaintiff-respondent herein was not allowed in spite
of her efforts to participate in the proceedings under Section 145.
The party proceeded against by the Executive Magistrate was not
interested in contesting the proceedings. The first Appellate Court has
not recorded any disagreement with the observations made by the
learned Civil Judge but has proceeded on a different reasoning which
reasoning has been found to be erroneous by the High Court. The
High Court has agreed with the view taken by the learned Civil Judge.
We do not think that any case for interference with the order of the
High Court is made out.
The appeal is dismissed. No order as to the costs.