ORDER
1. Leave granted.
2. In this appeal filed by the member of the first party in the proceeding under section 145 of the Criminal Procedure Code, the judgment dated 29.3. 2001 passed by the High Court of Jammu & Kashmir, at Jammu, in case No. 27/2000 which was filed by the members of the second party who are respondents herein under section 561-A of the Cr.P.C. (Jammu & Kashmir), is under challenge. In the impugned judgment the High Court has quashed the proceeding under section 145 Cr. P.C. holding, inter alia, that initiation of the proceeding under section 145 Cr. P.C. during pendency of the civil suit between the parties in which the question of possession is involved amounts to an abuse of the process of court; and that the learned magistrate has not stated the grounds in support of his order. The dispute raised in the case relates to possession of land measuring 2 kanals, 12 marla comprising khasra No. 398, khewat No. 8, khata No. 9 min. situated at Rakh Raipur, Tehsil Jammu. This property has been the subject matter of protracted litigations both in civil and criminal proceedings between the parties. As the position stands at present, respondent nos. 1 & 2 herein filed a suit on 24.4.2000 for a decree of permanent injunction prohibiting the appellant from interfering with their possession. The suit is pending in the court of the 1st subordinate judge, senior division, Jammu. In the said suit on the application filed by the plaintiff for interim injunction, the trial court by ad-interim order dated 24.4.2000 restrained the defendants from interfering with the possession of the plaintiffs over the suit land till 16th of May, 2000. On appeal, said injunction order was modified to an order of status-quo on the date of institution of suit by order dated 15.5.2000 of the 1st additional district judge, Jammu.
3. Considering the petition filed by the appellant under section 145 Cr. P.C. learned magistrate passed a preliminary order on 26.5,2000 initiating the proceeding. On that date the learned magistrate also passed an order attaching the property and appointing the SDPO, Gandhi Nagar, Jammu, to remain incharge of the property. In compliance with the said order, the SDPO took over the possession of the property on 27th May, 2000.
4. During the pendency of the proceeding under section 145 Cr. P.C. respondent 1 & 2 filed the petition in the High Court under section 561-A Criminal Procedure Code (Jammu & Kashmir) seeking quashing of the preliminary order and for dropping the proceeding under section 145 Cr. P.C. In the said proceeding by an interim order dated 15.6.2000 the SDPO was directed to deliver possession of the property to the respondents herein and in compliance with the said Order possession was delivered to the 2nd party, the respondent 1 & 2 herein. The High Court by order dated 29.3.2001 quashed the preliminary order passed by the learned magistrate initiating the proceeding under section 145 Cr. P.C. The said order is under challenge in this appeal.
5. On perusal of the relevant records and on consideration of the contentions raised by the counsel for the parties, we are of the view that undisputedly the parties are before the civil court in the suit in which the question of possession is directly involved. Indeed the orders of injunction and status-quo ante have been passed in the civil suit and in context of the facts and circumstances of the present case, the order of the High Court does not call for interference. But the interim order passed by the High Court on 15th June, 2000 directing the SDPO to deliver possession of the property to the 2nd party during pendency of the petition both under section 561-A of Criminal Procedure Code (Jammu & Kashmir) and thereby annulling the order of status quo passed by the lower appellate court was uncalled for improper and unfair. If the High Court felt any urgency in the matter then it should have passed order for expeditious disposal of the case and taken up the matter as quickly as possible. The order passed by the High Court during pendency of the proceeding granting substantial relief to the petitioners before it which relief petitioner might or might not have got at the final hearing of the case does not commend us. We are of the view that the SDPO Gandhi Nagar, Jammu who was in possession of the property before the interim order of the High Court should take over possession of the property from respondents 1 & 2 or any other person whom they might have inducted thereon and remain in charge of the property till further order of the trial court in the suit. It is ordered accordingly. The parties are granted liberty to approach the trial court for appropriate interim order in the suit. Learned counsel for the respondents 1 & 2 submits that after delivery of possession by the SDPO the said respondents have been carrying on business on the said premises. It will be open to the respondents 1 & 2 to seek appropriate relief in the matter from the trial court. The trial court while disposing of any application for interim order will afford reasonable opportunity of hearing to the parties and will not be influenced by the observations made in the order of the additional district judge or the order of the High Court which is under challenge in the present appeal.
6. The appeal is disposed of on the above terms.
