ORDER
V.K. Jhanji, Actg. C.J.
1. This reference has been made by the learned 1st. Addl. Sessions Judge, Srinagar recommending to set aside order dated 31-8-2000 passed by City Magistrate, Srinagar under Section 145, Cr.P.C.
2. In brief the facts are that on 6-7-1999 Khaliq Khan son of Razaq Khan along with Mohmmad Ramzan Sofi son of Habibullah Sofi presented a written application to the police concerned that the two shops situated at Qamarwari chowk were In their possession as tenants for the last 20 years under a valid lease from Ahad Sheikh and his sons and an amount of Rs. 65,000/- as rent in advance upto the year 2000 has been paid against the shops. They complained that Ahad Sheikh has died and his sons on 5-3-1999 without any right or concern broke open the lock of the two shops and took forcible possession of the shops. On this report FIR was lodged against Ghulam Mohmmad Sheikh Mohammad Yosuf, Adbul Hamid Under Section 448 RPC. As per the statement of the witnesses at the spot it was found by the police that two shops were under the tenancy and possession of the complainant for the last 20 years. In December, 1993 a BSF bunker was constructed in front of the two shops due to which the view of the shops was got blocked and on that the complainant approached the High Court for claiming the damages. Since there was an apprehension of breach of peace as both the parties were claiming right on the shops and the shops were lying closed, report was submitted to the learned City Magistrate for initiating proceedings under Section 145, Cr.P.C. On the basis of police report proceedings were initiated. In the meantime on 6-7-1999 respondents filed suit for injunction against the petitioners-defendants in which they claimed to be the owners and in possession of the shops. They further alleged that they are running their respective business in the shops and the defendants are threatening to interfere in their business without any rhyme and reason. Along with the plaint plaintiffs filed an application under Order 39, Rules 1 and 2 of CPC for grant of ad-interim relief. Learned Munsiff (Sub-Registrar) Srinagar by an exparte order directed the parties to maintain status quo with respect to suit property i.e. shops mentioned in the site plan. Plaintiffs armed with the order dated 8-7-1999 made an application to the Chief Judicial Magistrate, Srinagar for dropping of the proceedings under Section 145, Cr.P.C. Learned Chief Judicial Magistrate, Srinagar transferred the said application to the City Magistrate, Srinagar for disposal under law. Learned City Magistrate, Srinagar relying upon the judgment of the Supreme Court in the case “Amresh Tiwari v. Lalta Prasad Dubey AIR 2000 SC 1504 : 2000 Cri LJ 2226 held that since Civil Suit in respect of the property under consideration is pending before the Munsiff, (Sub-Registrar) Srinagar as such the proceedings under Section 145, Cr.P.C. cannot continue and resultantly he dropped the proceedings. However Khaliq Khan and Mohmmad Ramzan Sofi being aggrieved of the order passed by learned City Magistrate, Srinagar preferred revision petition before the learned 1st Additional Sessions Judge, Srinagar. Learned Revisional Court also relying upon the same judgment which was relied by the learned City Magistrate held that the trial Court has not correctly applied the law to the facts of the case in the proper manner which has resulted in miscarriage of justice. He accordingly has recommended that the order dated 31 -8-2000 passed by the learned City Magistrate, Sringar under Section 145, Cr.P.C. be set aside. This is how the reference has come before this Court.
3. I have heard learned counsel for the parties.
4. Learned counsel appearing on behalf of the respondents contended that the learned 1st Addl. Sessions Judge, Srinagar has not correctly read the judgment of the Supreme Court in Amresh Tiwari (2000 Cri LJ 2226) (supra). According to him because of the pendency of the civil suit in which status quo order has been passed, proceedings under Section 145 of Cr.P.C. are clearly an abuse of the process of the Court. He submitted that the Court trying the suit is competent to grant relief regarding protection of the property and therefore proceedings under Section 145, Cr.P.C. should not be allowed to continue. In answer to this submission, learned counsel appearing on behalf of the petitioners contended that the suit, filed by the respondents is simpliciter suit for injunction only. He is claiming to be in possession without disclosing that the defendants were in possession and had been dispossessed illegally without taking recourse to law. It is stated that the suit is neither for possession for declaration of title in respect of the property nor the Court would be deciding status of the parties relating to the property in question.
5. After hearing the learned Counsel for the parties I am of the view that the 1st Addl. Sessions Judge has correctly applied the judgment of the Supreme Court in Amresh Tiwari (supra) to the facts of the present case. The suit filed by the respondent is a simpliciter suit for injunction in which Court is not called upon to decide title or the status of the parties in respect of the property. This Court in “Om Prakash v. Dharam Chand” 1989 Srinagar LJ 79 (C.R. No. 90/ 82) had the occasion to deal with a situation which is similar to the facts of the present case. Dr. A. S. Anand Chief Justice (as his Lordship then was) considered the scope of Section 145, Cr.P.C. Their Lordships opined that :
Section 145, Cr.P.C. postulates two situations : one, in which the possession of a person is threatened; and, two, where the party had been forcibly dispossessed without two months of the passing of the preliminary order. In the first situation, if a petition under Section 145, Cr.P.C. is filed but before the preliminary order is passed, the other side approaches the Civil Court and obtains an injunction restraining the other side from interfering with its possession, the scope of this section would be limited, as the Magistrate would have to honour the finding of possession recorded by the Civil Court. In such a case the proceedings may not, under certain circumstances, be permitted to continue. This, however, would be dependant upon an unambiguous order of ‘injunction’ based on the ad-interim adjudication of the question of possession. In the second situation, however, if after dispossessing the party in possession forcibly and unlawfully, the dispossesses files a civil suit and obtains an order of “status quo”, the jurisdiction of the Magistrate to proceed under Section 145, Cr.P.C. in my opinion, for what follows would not be taken in view of the clear provisions of the section itself.
Their Lordships of the Supreme Court in Amresh Tiwari v. Lalta Prasad Dubey 2000 Cri LJ 2226 (supra) also clarified that not in every case where a civil suit is filed, Section 145, Cr.P.C. proceeding would never lie. In the present case the allegation of the petitioners is that they were in possession as tenants for the last 20 years but have been dispossessed forcibly and illegally on 29-7-1999. On the other hand the case of the respondent in the objections filed in the proceedings under Section 145, Cr.P.C. is that , the petitioners have voluntarily surrendered the possession of the shops. The order directing parties to maintain status quo was an ex parte order without determining as to who was in possession. In this background it is to be judged whether or not proceedings under Section 145, Cr.P.C. should be allowed to continue. Sub-section (6) of Section 145, Cr.P.C. makes it obligatory on the Magistrate to direct restoration of the possession where a party has been forcibly and illegally dispossessed within two months next proceeding the date of passing of the preliminary order. In the suit filed by the respondents which is a simpliciter suit for injunction such a relief cannot be granted. In case argument of the learned counsel for the respondents is accepted then in every case in which order of status quo has been passed, proceedings under Section 145, Cr.P.C. would be liable to be stayed and the provision of Sub-section (6) of Section 145, Cr.P.C. would be rendered superfluous. In a situation like the one in hand i.e. a party who may have taken forcible possession of the property would be put to an advantageous position. This does not seem to be intention of the Legislature.
6. In view of the above, reference is accepted and the order of the learned City Magistrate Srinagar dated 31-8-2000 is set aside. It is however made clear that observation touching the merits of the case, if any made in this order shall not be taken into consideration by the Court dealing with the proceedings under Section 145, Cr.P.C. and the said proceedings would be decided strictly in accordance with law and the evidence which may be led by the parties. No costs. Registry is directed to return the record of the case to the Courts below forthwith.