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Gujarat High Court
Bhanumatiben Suryakant Doshi vs Vanrajsinh Hirabhai Chavda And … on 4 October, 2000
Equivalent citations: (2001) 2 GLR 1216
Author: D Srivastava
Bench: D Srivastava


JUDGMENT

D.C. Srivastava, J.

1. Heard Ms. Avani Mehta, learned Counsel for the revisionist on admission of this revision. The admission of revision is opposed by Shri Y. S. Lakhani appearing on behalf of respondent No. 1. Shri K. C. Shah, learned A.P.P., appearing on behalf of respondent No. 4 has also been heard.

2. The order dated July 12, 2000 of the learned Sessions Judge, Surendranagar is under challenge in this revision. By the impugned order, the learned Sessions Judge has set aside the order of the learned Executive Magistrate passed in proceedings under Section 145 of the Code of Criminal Procedure on May 16, 2000.

3. After hearing the learned Counsel for the parties and examining the judgments under revision, it can be safely said that the order of the learned
Executive Magistrate was not in accordance with law, and as such, it could be set aside by the Sessions Judge in revision.

4. The first infirmity in the order of the learned Executive Magistrate is that, he did not pass any preliminary order as contemplated under Section 145(1) of the Code of Criminal Procedure. The impugned order shows that, for all purposes, it is an order under Section 146(1) of the Code of Criminal Procedure. The indication from the order of the Executive Magistrate is that, he was unable to decide which party was in possession as referred to in Section 145 or he was unable to satisfy himself as to which of them was there in such possession of the subject of dispute, and as such, he approved the action of the police in attaching the property in dispute by putting the seal and directed the parties to maintain status quo till their rights are decided by the competent civil Court. Before passing this order, the learned Executive Magistrate should have followed procedures laid down in Section 145(1) onwards. That was also not done by the learned Executive Magistrate.

5. It may also be mentioned that, immediately on receipt of complaint the Police Inspector rushed to the spot and on apprehension of breach of peace, immediately put a lock over the disputed property, and thereafter, he made a
report to the learned Executive Magistrate. As stated earlier, the learned Executive Magistrate did not pass any preliminary order. Shri Lakhani has brought to my notice the letter written by the learned Executive Magistrate disapproving the action of the police in putting the seal over the property without making reference to him. But, in the impugned order, which was set aside by the learned Sessions Judge, he. has approved that action.

6. The question for consideration is, whether the impugned order of the learned Sessions Judge requires interference, and if so, whether the revision requires admission for final hearing? For this, certain dates are material and certain facts have also to be kept in mind. The so-called proceedings under Section 145 of the Code of Criminal Procedure were initiated on April 7, 2000. Prior to that, Civil suit was filed on or after June 24, 1999 by Lalit Chandrakant Doshi and Pankaj Suryakant Doshi against Shardaben Shah. In this suit, in Para 8 of the plaint, it was specifically averred that the necessity for filing the suit arose against the defendant for obtaining declaration, as well as permanent injunction. Relief was sought by the plaintiffs against the defendant restraining him from illegally dispossessing the plaintiffs and also from selling or transferring the disputed premises described in Para 2 of the plaint, which was alleged to be the properties in ownership of the plaintiffs’ forefathers, and thereafter, in ownership and possession of the plaintiffs. There is no dispute that a portion of the same property is subject-matter of the proceedings under Section 145 of the Code of Criminal Procedure. In that suit, ex-parte injunction was sought, which was granted at the initial stage but was refused after hearing the plaintiffs and the defendant by the Civil Court on April 7, 1999. Misc. Civil Appeal was filed against the order refusing injunction which was also dismissed on October 21, 1999. Proceedings were thereafter initiated under Section 145 of the Code of Criminal Procedure on April 7, 2000. It is, thus, apparent that the
proceedings were initiated under Section 145 of the Code of Criminal Procedure during pendency of the Civil Suit. This Civil Suit is still reported to be pending before the competent Civil Court.

7. The learned Sessions Judge, placing reliance upon the pronouncement of the Apex Court in Amresh Tiwari v. Lalit Prasad Dube, AIR 2000 SC 1504 has observed that, “The proceedings under Section 145 of the Code of Criminal Procedure initiated after the institution of the civil suit is bad in the eyes of law.” Hence, the impugned order also becomes illegal.

8. Ms. Avani Mehta has urged that this case is distinguishable on facts. And moreover, in this case, it was never laid down by the Apex Court that, in no case proceedings under Section 145 of the Criminal Procedure Code could be initiated during pendency of the civil suit or after institution of the civil suit. Her contention has been that, it is only in cases where civil suit is for possession or for declaration of title in respect of same property and where relief regarding protection of the property concerned can be applied for and granted by the civil Court, that proceeding under Section 145 of the Criminal Procedure Code should not be allowed to continue. From Para 8 of the plaint, it is clear that the plaintiffs apprehended illegal dispossession from the defendant. They also apprehended cloud on their title, and as such, they sought declaration of title. Thus, for all purposes, the Civil Suit No. 19 of 1999 was for declaration of title, as well as for protecting possession and seeking permanent injunction. It is, thus, immaterial that relief clause in Para 12 was worded in a different way. Even, from relief clause (1) as contained in Para 12 of the plaint, it is clear that permanent injunction was sought by the plaintiffs against the defendant restraining him from disturbing occupation or possession of the plaintiffs over the suit property and to get the same vacated from the plaintiffs, in any manner whatsoever.

9. Para 12 of the relief clause further shows, though not happily worded, that injunction was sought that the defendant has no authority to sale the suit property to anybody else. In this way permanent injunction against the transfer or sale was also sought by the plaintiffs. If this is so, then the distinction suggested by the learned Counsel for the revisionist can hardly be accepted that this was not a case where question of possession, question of title or question of declaration was not involved. It is then immaterial that the respondent No. 1 herein was not a party or the defendant in Civil Suit No. 19 of 1999. If the injunction was refused by the trial Court after hearing the parties and the appeal was also dismissed, its consequence would be that the defendant Shardaben Shah was not restrained from transferring property to third person and if so, she transferred the property or portion thereof to the respondent No. 1 herein and the respondent No. 1 herein wanted to create disturbance, relief could be sought in the pending Civil suit against the respondent No. 1 herein by impleading him as defendant No. 2 and the civil Court could have taken cognizance of the matter effectively. It was hardly necessary to rush to the Police Inspector or the Executive Magistrate for taking action under Section 145 of the Criminal Procedure Code.

10. After careful examination of the impugned order of the learned Sessions
Judge, I do not find any illegality or jurisdiction error in it. Consequently,
revision does not require admission for final hearing. It is accordingly summarily
rejected.

11. Petition dismissed..


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