{"id":260030,"date":"2003-11-03T00:00:00","date_gmt":"2003-11-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shanti-kumar-panda-vs-shakutala-devi-on-3-november-2003"},"modified":"2017-05-31T04:41:17","modified_gmt":"2017-05-30T23:11:17","slug":"shanti-kumar-panda-vs-shakutala-devi-on-3-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shanti-kumar-panda-vs-shakutala-devi-on-3-november-2003","title":{"rendered":"Shanti Kumar Panda vs Shakutala Devi on 3 November, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shanti Kumar Panda vs Shakutala Devi on 3 November, 2003<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R.C. Lahoti, Ashok Bhan.<\/div>\n
           CASE NO.:\nAppeal (civil)  10906 of 1996\n\nPETITIONER:\nShanti Kumar Panda\t\t\t\t\t\t\n\nRESPONDENT:\nShakutala Devi\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 03\/11\/2003\n\nBENCH:\nR.C. LAHOTI & ASHOK BHAN.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
R.C. LAHOTI, J.\n<\/p>\n
\tShanti Kumar Panda, the appellant before us lodged a complaint
\nwith Station Officer, Line Bazar, Jaunpur, whereupon the police filed a
\nreport before the Sub-Divisional Magistrate (S.D.M.) Sadar, Jaunpur,
\nwho made a preliminary order under Section 145(1)<\/a> of the Code of
\nCriminal Procedure, 1973 (hereinafter referred to as ‘the Code’, for
\nshort) recording his satisfaction that a dispute, likely to cause a breach
\nof the peace, exists concerning the shop, which is the subject matter
\nof dispute (hereinafter referred to as ‘the shop’, for short) between the
\nappellant and one Kamta Prasad (not a party in this appeal) and
\nrequiring both of them to attend his court and put in the written
\nstatements of their respective claims as respects the fact of actual
\npossession of the shop.  The learned S.D.M. also found that the case
\nwas one of emergency and therefore he directed the shop to be
\nattached under Section 146(1)<\/a> of the Code.  The preliminary order
\nunder Section 145(1)<\/a> and the order of attachment under Section
\n146(1)<\/a> were both made on 16.5.92.  Kamta Prasad appeared and
\nstated that he had nothing to do with the shop and the owner of the
\nproperty, who was also in possession thereof, was one Shakuntala
\nDevi (respondent No.1 herein, hereinafter referred to as ‘the
\nrespondent’, for short).  Kamta Prasad also submitted that the
\nappellant had deliberately not impleaded the respondent as a party to
\nthe proceedings as he was in collusion with the police and wanted to
\ndeprive Shakuntala Devi of her lawful possession over the shop.
\nShakuntala Devi, on becoming aware of the proceedings (obviously on
\nthe information provided by Kamta Prasad), moved an application
\nbefore the learned S.D.M. stating that she was a party interested in
\nthe subject matter of dispute and as she was in peaceful possession of
\nthe shop, she ought to have been joined as party to the proceedings
\nand as that not done, she prayed for her impleadment and an
\nopportunity of being heard.\n<\/p>\n
\tThe learned S.D.M. kept the application filed by the respondent
\npending till 6.7.92 when the proceedings were directed to be disposed
\nof by a final order.  No opportunity was allowed to the respondent to
\njoin in the proceedings and to file her own claims as to the possession
\nof the shop.  The learned S.D.M. held that the appellant was in
\npossession over the disputed shop on the date of the passing of the
\npreliminary order as also in the two months prior thereto.  Having
\nmade that declaration the learned S.D.M. directed that until the rights
\nwere determined by the competent court, the shop shall be released in
\nfavour of Shanti Kumar Panda, the appellant.\n<\/p>\n
\tShakuntala Devi, the respondent and Kamta Prasad both
\npreferred revision petitions against the order of the learned S.D.M.  By
\norder dated 27.2.93 the learned Additional Sessions Judge directed the
\nrevision to be dismissed by holding that the order of the learned
\nS.D.M. did not suffer from any infirmity.  Both these orders were put in
\nissue by the respondent and Kamta Prasad by filing a petition under
\nArticle 226<\/a> of the Constitution in the High Court which too was
\ndismissed on 6.12.93.  One of the reasons which has prevailed with
\nthe High Court for dismissing the petition is that the respondent had
\nalready approached the Civil Court and the jurisdiction of the Civil
\nCourt having been invoked, which was an efficacious alternative
\nremedy available to the respondent, it was not appropriate for the
\nHigh Court to entertain the writ petition and exercise its jurisdiction
\nunder Article 226<\/a> of the Constitution.\n<\/p>\n
\tSoon after the decision by the learned Additional Sessions Judge
\non 27.2.93, Shakuntala Devi, the respondent, filed civil suit No.283 of
\n1993 based on title, seeking a permanent preventive injunction
\nagainst Shanti Kumar Panda, the appellant herein.  Kamta Prasad who
\nalone was impleaded by the respondent as the party in the
\nproceedings under Sections 145<\/a>\/146<\/a> of the Code was not impleaded as
\na party in the civil suit filed by the respondent Shakuntala Devi,
\ninasmuch as the impleadment of Kamta Prasad who was not claiming
\nany interest and not even possession over the shop was considered to
\nbe unnecessary.  The respondent also sought for an ad-interim
\npreventive injunction so as to protect her possession over the shop.
\nBy order dated 5.8.95 the learned Civil Judge allowed the application
\nfiled by the respondent and directed the appellant to remain restrained
\nfrom interfering with the possession of the respondent over the shop.
\nThe learned Civil Judge also directed a court officer to go at the site of
\nthe shop and after opening the locks to put the respondent in
\npossession of the shop.  It would be relevant to note some of the
\nobservations, pungent to some extent, made by the learned Civil
\nJudge during the course of his order.  The learned Civil Judge observed
\nthat the proceedings under Sections 145<\/a>\/146<\/a> of the Code had
\nproceeded in the absence of the respondent who was not even allowed
\nan opportunity of being heard though she was the real person claiming
\npossession and also title over the shop.  The learned Judge said –
\n“She was not even offered the opportunity of being
\nheard.  The real fact is that after the death of Smt.
\nTapesara the anti social elements conspired to grab
\nher house and shop and under that conspiracy the
\nsister of Tapesara, i.e., Shakuntala Plaintiff whose
\npossession was over the disputed house and shop
\nwanted to eject her forcibly and the administration
\nfully helped in evicting the plaintiff from her house
\nand shop..it is clear that the plaintiff was in
\npossession and still she is in possession.  Merely by
\ntaking advantage of the condition of the plaintiff
\nthe Sub-Inspector and the S.D.M. under the
\nproceeding under Section 145<\/a> Cr.P.C. got locked
\nthe shop and house and the plaintiff is again
\nentitled to live therein.  If it is not so any one could
\ntake possession of any one’s house in collusion
\nwith the administration.  The day it is done that
\nday will become a symbol of injustice in the
\nsocietyThe one who is not a party to the
\nproceeding under Section 145<\/a> Cr.P.C. the finding
\ngiven under Section 145<\/a> Cr.P.C. is not binding on
\nhim.”\n<\/p>\n
\tThe appellant preferred a miscellaneous appeal.  The learned
\nDistrict Judge, vide his order dated 15.11.95, allowed the same and
\nset aside the order dated 5.8.95 passed by the learned Civil Judge.
\nThe principal reason which has prevailed with the learned District
\nJudge was that the proceedings under Section 145<\/a> of the Code having
\nterminated in favour of Shanti Kumar Panda, the appellant, the trial
\ncourt was not justified in issuing the order of injunction unless and
\nuntil the order of the learned S.D.M. was superseded by a decree of
\nthe Civil Court and that no injunction can be granted when the
\ndisputed property is in custodia legis.\n<\/p>\n
\tThe respondent preferred a petition under Article 227<\/a> of the
\nConstitution.  The High Court has allowed the petition, set aside the
\norder of the learned District Judge and restored the order passed by
\nthe learned Civil Judge.  Feeling aggrieved by the order of the High
\nCourt this appeal has been preferred by special leave.\n<\/p>\n
\tMr. Sunil Gupta, the learned Senior Counsel appearing for the
\nappellant, has forcefully urged, placing reliance on the phraseology
\nemployed by the Parliament in drafting Section 145<\/a> of the Code, that
\nonce an order under Sections 145<\/a> and\/or 146 of the Code<\/a> has been
\npassed, finally terminating proceedings thereunder, then it is only a
\ndecree for eviction passed by a Civil Court in a suit based on title filed
\nby the party unsuccessful before the learned S.D.M. which would
\nsupersede the order passed by the Magistrate, which order continues
\nto remain in operation and ought to be respected not only by the
\nparties thereto but also by the Civil Court.  In other words, he
\nsubmitted that an order of temporary injunction inconsistent with the
\norder of the Magistrate under Sections 145<\/a>\/146<\/a> of the Code or
\nsuperseding it cannot be passed by the Civil Court.\n<\/p>\n
Mr. Jayant Bhushan, the learned Senior Counsel, who initially
\nrepresented the respondent before being designated as senior
\nadvocate, appeared at the time of hearing and submitted that though
\nhe was not instructed to appear yet he is available to assist the Court
\nto place the correct legal position in spite of his having given up the
\nbrief to the respondent.  We appreciate the gesture shown by him.  He
\nhas adopted a line of reasoning opposite to the one adopted by Mr.
\nSunil Gupta and has supported the order of the trial court restored by
\nthe High Court.  The rival submissions made before us raise certain
\nimportant issues touching the value and efficacy of the final order
\npassed under Sections 145<\/a>\/146<\/a> of the Code in the proceedings
\nwherein that order is called in question.\n<\/p>\n
Sections 145<\/a> and 146<\/a> of the Code, insofar as they are relevant
\nfor our purpose are extracted and reproduced hereunder:\n<\/p>\n
“145. Procedure where dispute concerning
\nland or water is likely to cause breach of
\npeace.  <\/p>\n
(1) Whenever an Executive Magistrate is satisfied
\nfrom a report of a police officer or upon other
\ninformation that a dispute likely to cause a
\nbreach of the peace exists concerning any land
\nor water or the boundaries thereof, within his
\nlocal jurisdiction, he shall make an order in
\nwriting, stating the grounds of his being so
\nsatisfied, and requiring the parties concerned
\nin such dispute to attend his Court in person
\nor by pleader, on a specified date and time,
\nand to put in written statements of their
\nrespective claims as respects the fact of actual
\npossession of the subject of dispute.\n<\/p>\n
(2)  & (3)\t\t***\t\t***<\/p>\n
(4)  The Magistrate shall then, without reference to
\nthe merits or the claims of any of the parties
\nto a right to possess the subject of dispute,
\npursue the statements so put in, hear the
\nparties, receive all such evidence as may be
\nproduced by them, take such further evidence,
\nif any, as he thinks necessary, and, if possible,
\ndecide whether any and which of the parties
\nwas, at the date of the order made by him
\nunder sub-section (1), in possession of the
\nsubject of dispute :\n<\/p>\n
Provided that, if it appears to the Magistrate
\nthat any party has been forcibly and
\nwrongfully dispossessed, within two months
\nnext before the date on which the report of a
\npolice officer or other information was
\nreceived by the Magistrate, or after that date
\nand before the date of his order under sub-\n<\/p>\n
section (1), he may treat the party so
\ndispossessed as if that party had been in
\npossession on the date of his order under sub-\n<\/p>\n
section (1).\n<\/p>\n
(5)  Nothing in this section shall preclude any party
\nso required to attend, or any other person
\ninterested, from showing that no such dispute
\nas aforesaid exists or has existed; and in such
\ncase the Magistrate shall cancel his said order,
\nand all further proceedings thereon shall be
\nstayed, but, subject to such cancellation, the
\norder of the Magistrate under sub-section (1)
\nshall be final.\n<\/p>\n
(6) (a) If the Magistrate decides that one of the
\nparties was, or should under the proviso to
\nsub-section (4) be treated as being, in such
\npossession of the said subject, he shall issue
\nan order declaring such party to be entitled to
\npossession thereof until evicted therefrom in
\ndue course of law, and forbidding all
\ndisturbance of such possession until such
\neviction; and when he proceeds under the
\nproviso to sub-section (4), may restore to
\npossession the party forcibly and wrongfully
\ndispossessed.\n<\/p>\n
(b)  The order made under this sub-section
\nshall be served and published in the manner
\nlaid in sub-section (3).”\n<\/p>\n
146. Power to attach subject of dispute and to
\nappoint receiver.    <\/p>\n
(1)  If the Magistrate at any time after making the
\norder under sub-section (1) of Section 145<\/a>
\nconsiders the case to be one of emergency, or
\nif he decides that none of the parties was then
\nin such possession as is referred to in Section
\n145<\/a>, or if he is unable to satisfy himself as to
\nwhich of them was then in such possession of
\nthe subject of dispute, he may attach the
\nsubject of dispute until a competent Court has
\ndetermined the rights of the parties thereto
\nwith regard to the person entitled to the
\npossession thereof :\n<\/p>\n
Provided that in the event of a receiver being
\nsubsequently appointed in relation to the
\nsubject of dispute by any Civil Court, the
\nMagistrate  <\/p>\n
(a) shall order the receiver appointed by him
\nto hand over the possession of the subject of
\ndispute to the receiver appointed by the Civil
\nCourt and shall thereafter discharge the
\nreceiver appointed by him.\n<\/p>\n
(b) may make such other incidental or
\nconsequential orders as may be just.\n<\/p>\n
\tPossession is nine points in law.  One purpose of the
\nenforcement of the laws is to maintain peace and order in society.  The
\ndisputes relating to property should be settled in a civilized manner by
\nhaving recourse to law and not by taking the law in own hands by
\nmembers of society.  A dispute relating to any land etc. as defined in
\nsub-section (2) of Section 145<\/a> having arisen, causing a likelihood of a
\nbreach of the peace, Section 145<\/a> of the Code authorizes the Executive
\nMagistrate to take cognizance of the dispute and settle the same by
\nholding an enquiry into possession as distinguished from right to
\npossession or title.  The proceedings under Sections 145<\/a>\/146<\/a> of the
\nCode have been held to be quasi-civil, quasi-criminal in nature or an
\nexecutive on police action.  The purpose of the provisions is to provide
\na speedy and summary remedy so as to prevent a breach of the peace
\nby submitting the dispute to the Executive Magistrate for resolution as
\nbetween the parties disputing the question of possession over the
\nproperty. The Magistrate having taken cognizance of the dispute would
\nconfine himself to ascertaining which of the disputing parties was in
\npossession by reference to the date of the preliminary order or within
\ntwo months next before the said date, as referred to in proviso to sub-
\nsection (4) of Section 145<\/a>, and maintain the status quo as to
\npossession until the entitlement to possession was determined by a
\ncourt, having competence to enter into adjudication of civil rights,
\nwhich an Executive Magistrate cannot.  The Executive Magistrate
\nwould not take cognizance of the dispute if it is referable only to
\nownership or right to possession and is not over possession simpliciter;
\nso also the Executive Magistrate would refuse to interfere if there is no
\nlikelihood of breach of the peace or if the likelihood of breach of peace
\nthough existed at a previous point of time, had ceased to exist by the
\ntime he was called upon to pronounce the final order so far as he was
\nconcerned.\n<\/p>\n
\tThere is a difference between a case where the subject-matter
\nof dispute is not attached by the Executive Magistrate under Section
\n146(1)<\/a> and the case where it is so attached.   Under sub-section (1) of
\nSection 145<\/a> a preliminary order taking cognizance of the dispute
\nhaving been passed, the Magistrate would under sub-section (4)
\ndecide who was in possession of the disputed property on the date of
\nthe passing of the preliminary order.  Consistently with such finding, a
\ndeclaration by Magistrate in favour  of  such party would follow under
\nsub-section (6) entitling it to retain possession over such  property
\nuntil evicted therefrom in due course of law.  And until such eviction all
\ndisturbances in its possession shall be forbidden.  If any party is found
\nto have been forcibly or wrongfully dispossessed within two months
\nnext before the date on which the report of a police officer or other
\ninformation setting the Magistrate in motion was received by him or
\nbetween such date and the date of order under sub-section (1), then
\nthe party dispossessed has to be fictionally treated as one in
\npossession on the date of preliminary order under sub-section (1).
\nThe declaration of entitlement to possession under proviso to sub-
\nsection (4) read with sub-section (6) shall be made in favour of such
\nparty and the party found to have been so dispossessed  forcibly and
\nwrongfully may also be restored into possession.  The declaration
\nhaving been made, it would be for the unsuccessful party to approach
\nthe competent court  and secure such order as would enable his
\nentering into possession and evicting the party successful in
\nproceedings under Section 145<\/a>.\n<\/p>\n
\tWhat is an eviction “in due course of law” within the meaning of
\nsub-section (6) of Section 145<\/a> of  the Code? Does it mean a suit or
\nproceedings directing restoration of possession between the parties
\nrespectively unsuccessful and successful in proceedings under Section
\n145<\/a> or any order of competent court which though not expressly
\ndirecting eviction of successful party, has the effect of upholding the
\npossession or entitlement to possession of the unsuccessful party as
\nagainst the said successful party.  In our opinion, which we would
\nbuttress by reasons stated shortly hereinafter, ordinarily a party
\nunsuccessful in proceedings under Section 145<\/a> ought to sue for
\nrecovery of possession seeking a decree or order for restoration of
\npossession.  However, a party though unsuccessful in proceedings
\nunder Section 145<\/a> may still be able to successfully establish before the
\ncompetent court that it was actually in possession of the property and
\nis entitled to retain the same by making out a strong case
\ndemonstrating the finding of the Magistrate to be apparently incorrect.\n<\/p>\n
\tIn a case where attachment has been made under Section
\n146(1)<\/a> of the Code, it is not necessary for the unsuccessful party to
\nseek the relief of possession from the court; a mere adjudication of
\nrights would suffice inasmuch as the attached property is held custodia
\nlegis by the Magistrate for and on behalf of the party who would be
\nsuccessful from the competent court by establishing his right to
\npossession over the property.\n<\/p>\n
\tMr. Sunil Gupta, the learned Senior Counsel for the appellant
\nsubmitted, reading literally the sub-section (6) of Section 145<\/a> of the
\nCode, that declaration of the successful party “to be entitled to
\npossession thereof until evicted therefrom in due course of law, and
\nforbidding all disturbance of such possession until such eviction”
\nmeans that the Parliament intended to confer a binding efficacy on the
\nMagistrate’s order not only qua the parties to the proceedings but also
\nqua all concerned to respect and abide by the order of the Executive
\nMagistrate and such order and the possession of the successful party
\nprotected thereunder shall continue to survive and hold valid and good
\nunless at the final adjudication of civil rights the competent court has
\ndirected the party successful in proceedings before the Magistrate to
\nbe evicted, whence and whence alone that party shall lose possession
\nand bound to hand over the same to the party successful in the Civil
\nCourt.\n<\/p>\n
\tIt is well-settled that a decision by a Criminal Court does not
\nbind the Civil Court while a decision by the Civil Court binds the
\nCriminal Court (See  Sarkar on Evidence, Fifteenth Edition, page\n<\/p>\n
845).  A decision given under Section 145<\/a> of the Code has relevance
\nand is admissible in evidence to show :- (i) that there was a dispute
\nrelating to a particular property; (ii) that the dispute was between the
\nparticular parties; (iii) that such dispute led to the passing of a
\npreliminary order under Section 145(1)<\/a> or an attachment under
\nSection 146(1)<\/a>, on the given date, and (iv) that the Magistrate found
\none of the parties to be in possession or fictional possession of the
\ndisputed property on the date of the preliminary order.  The reasoning
\nrecorded by the Magistrate or other findings arrived at by him have no
\nrelevance and are not admissible in evidence before the competent
\ncourt and the competent court is not bound by the findings arrived at
\nby the Magistrate even on the question of possession through, as
\nbetween the parties, the order of the Magistrate would be evidence of
\npossession.  The finding recorded by the Magistrate does not bind the
\nCourt.  The competent court has jurisdiction and would be justified in
\narriving at a finding inconsistent with the one arrived at by the
\nExecutive Magistrate even on the question of possession.  Sections
\n145<\/a> and 146<\/a> only provide for the order of the Executive Magistrate
\nmade under any of the two provisions being superseded by and giving
\nway to the order or decree of a competent court.  The effect of the
\nMagistrate’s order is that burden is thrown on the unsuccessful party
\nto prove its possession or entitlement to possession before the
\ncompetent court.\n<\/p>\n
\tIn Bhinka & Ors.  Vs.  Charan Singh , AIR 1959 SC 960, this
\nCourt held that the Magistrate does not purport to decide a party’s title
\nor right to possession of the land but expressly reserves that question
\nto be decided in due course of law.  His order is a temporary order
\nirrespective of the rights of the parties, which will have to be agitated
\nand adjudicated upon by a competent forum and in the manner
\nprovided by law.  The life of the said order is coterminous with the
\npassing of a decree by a Civil Court and the moment a Civil Court
\nmakes an order of eviction, it displaces the order of the Criminal
\nCourt.  The orders under Section 145<\/a> of the Code are thus merely
\npolice orders and do not decide any question of title.\n<\/p>\n
\tWe would like to clarify that in the case of Bhinka and Ors.
\n(supra) the question  what is a competent court, did not arise for
\ndetermination; nor did the question as to what is the weight and value
\nto be assigned to or what is the efficacy of the order of the Magistrate
\nin a subsequent suit or proceeding initiated before a competent court
\ndirectly arise for consideration.  This we say because it is also well-
\nsettled that Sections 145<\/a> and 146<\/a> nowhere specifically provide for the
\norder of the Magistrate being subject to and superseded by only a
\ndecree of ‘Civil Court’.  The words ‘competent court’ used in Section
\n146<\/a> (1), in the context in which they have been used, only mean “any
\ncourt which has jurisdictional competence to decide the question of
\ntitle or rights to the property or entitlement to possession based on
\nright or title to the property though the court is not necessarily a Civil
\nCourt”.  The words ‘until evicted therefrom in due course of law’ as
\noccurring in sub-section (6) of Section 145<\/a>‘ mean the eviction of the
\nparty successful before the Magistrate, consequent upon the
\nadjudication of title or right to possession by a competent court; that
\ndoes not necessarily mean a decree of eviction.  The party
\nunsuccessful before the Magistrate may dispute the correctness of the
\nfinding arrived at by the Magistrate and is at liberty to show before the
\ncompetent court that it had not dispossessed the successful party or
\nthat it is the unsuccessful party and not the successful party who was
\nactually in possession and the finding to the contrary arrived at by the
\nMagistrate was wholly or apparently erroneous and unsustainable in
\nlaw.\n<\/p>\n
In Jhunamal alias Devandas  Vs.  State of Madhya Pradesh
\n& Ors. , (1988) 4 SCC 452, this Court has held that a concluded order
\nunder Section 145<\/a>, Cr.P.C<\/a>., made by the Magistrate of competent
\njurisdiction should not be set at naught merely because the
\nunsuccessful party has approached the civil Court.  An order made
\nunder Section 145<\/a>, Cr.P.C<\/a>., deals only with the factum of possession of
\nthe party as on a particular day.  It confers no title to remain in
\npossession of the disputed property.  The order is subject to decision
\nof the civil Court.  The unsuccessful party therefore must get relief
\nonly in the civil Court.  He may move the civil court with a properly
\nconstituted suit.  He may file a suit for declaration and prove a better
\nright to possession.  The civil Court has jurisdiction to give a finding
\ndifferent from that which the Magistrate has reached.  Here again we
\nmay hasten to add that the expression ‘civil court’ used by this Court
\nin Jhunamal’s case (supra) means competent court and not
\nnecessarily a civil court as commonly understood.\n<\/p>\n
At what stage may the competent court arrive at a finding
\ninconsistent with the one given by the Magistrate?  Is it correct to say
\nthat the finding recorded by the Magistrate can be dislodged only at
\nthe time of and by passing a final decree terminating the suit? Or,
\nwhether the competent court can, depending on the facts and
\ncircumstances of a given case, arrive at a finding different from the
\none recorded by the Magistrate even at the state of interlocutory order
\nsuch as one of injunction or appointment of receiver during the
\npendency of the suit?\n<\/p>\n
\tWe have already indicated hereinabove the extent of relevance
\nof an order under Sections 145<\/a>\/146<\/a> of the Code in a subsequent civil
\naction between the parties.  In a civil action between different parties
\nthe finding of a criminal court cannot be treated as binding except to
\nthe extent of being evidence of the factum of a particular judgment
\nhaving been delivered by the particular criminal court on a particular
\ndate as already indicated hereinabove.  In Anil Behari Ghosh Vs.
\nSmt. Latika Bala Dassi & ors., AIR 1955 SC 566 this Court has held
\nthat in a proceeding for revocation of a grant of probate under Section
\n263<\/a> of the Succession Act the previous judgment of the Criminal Court
\nconvicting the son of the murder of his father and sentencing him to
\ntransportation for life is not admissible in evidence of the fact that the
\nson was the murderer of the testator. That is a question to be decided
\non evidence.  The judgment of the Criminal Court is relevant only to
\nshow that there was such trial resulting in such conviction and
\nsentence of the son to transportation for life.\n<\/p>\n
\tThe order of the magistrate under Section 145<\/a>\/146<\/a> of the Code
\nis not only an order passed by Criminal Court but is also one based on
\nsummary enquiry.  The competent Court in any subsequent
\nproceedings is free to arrive at its own findings based on the evidence
\nadduced before it on all the issues arising for decision before it.  At the
\nstage of judgment by Civil Court the order of the magistrate shall be of
\nalmost no relevance except for the purpose of showing that an enquiry
\nheld by the magistrate had resulted into the given declaration being
\nmade on a particular date.   The competent Court would be free to
\nrecord its own findings based on the material before it even on the
\nquestion of possession which may be inconsistent with or contrary to
\nthe findings arrived at by the magistrate.\n<\/p>\n
\tAt the stage of passing an interlocutory order such as on an
\napplication for the grant of ad interim injunction under Rule 1 or 2 of
\nOrder 39 of the CPC, the competent Court shall have to form its
\nopinion on the availability of a prima facie case, the balance of
\nconvenience and the irreparable injury __ the three pillars on which
\nrests the foundation of any order of injunction.  At that stage material
\nin the shape of affidavits, documents and pleadings is placed before
\nthe Court for its consideration.  The order of the Executive Magistrate
\nmay also be placed before it, who having held an enquiry, though
\nsummary in nature, has arrived at a finding on the question of
\npossession which the Code<\/a> intends to be sustained unless the Court of
\ncompetent jurisdiction by its judicial order supersedes the finding or
\nthe effect of such finding and till then all disturbances in possession of
\nthe successful party are intended by the Code<\/a> to be forbidden.  The
\nCivil Court shall also respect such order and will be loath to arrive at
\nan interim arrangement inconsistent with the one made by the
\nExecutive Magistrate.  However, this is far from holding that the Civil
\nCourt does not have jurisdiction to make an order of injunction
\ninconsistent with the order of the Executive Magistrate.  The
\njurisdiction is there but the same shall be exercised not as a rule but
\nas an exception.  There may be cases such as one where the order of
\nthe Executive Magistrate can be shown to be without jurisdiction,
\npalpably wrong or containing self-contradictory findings.  For example,
\nthe Magistrate may have made an order treating the party
\ndispossessed beyond two months to be as in possession.  There may
\nbe cases where in spite of the order made by the Executive Magistrate
\nbased on the evidence adduced before it, the competent court, based
\non the material produced before such Court, may be inclined to hold
\nthat prima facie a very strong case for retaining or placing one of the
\nparties in possession of the suit property is made out or where it will
\nbe totally unjust or inequitable to continue one party in possession of
\nthe property as ordered by the Executive Magistrate. In such
\nexceptional situations, the competent court (which will mostly be a
\ncivil court) may have jurisdiction for granting an order of injunction in
\ndeparture from the findings recorded and the declaration made by the
\nExecutive Magistrate under Section 145<\/a> of the Code of Criminal
\nProcedure.  The order under Section 146<\/a> of the Code would not pose a
\nproblem of that magnitude.  Inasmuch as the property is under
\nattachment and is placed in the hands of a receiver the Civil Court can
\ncomfortably examine whether it would be just and expedient to
\ncontinue with the attachment and with the same receiver or to appoint
\nanother receiver or to make some other interim arrangement during
\nthe pendency of the civil suit.\n<\/p>\n
 \tFor the purpose of legal proceedings initiated before a
\ncompetent court subsequent to the order of an Executive Magistrate
\nunder Sections 145<\/a>\/146<\/a> of the Code of Criminal Procedure, the law as
\nto the effect of the order of the Magistrate may be summarized as
\nunder:-\n<\/p>\n
(1)\tThe words ‘competent court’ as used in sub-section (1) of
\nSection 146<\/a> of the code do not necessarily mean a civil court
\nonly.  A competent court is one which has the jurisdictional
\ncompetence to determine the question of title or the rights of
\nthe parties with regard to the entitlement as to possession over
\nthe property forming subject matter of proceedings before the
\nExecutive Magistrate;\n<\/p>\n
(2)\tA party unsuccessful in an order under Section 145(1)<\/a> would
\ninitiate proceedings in a competent court to establish its
\nentitlement to possession over the disputed property against the
\nsuccessful party.  Ordinarily, a relief of recovery of possession
\nwould be appropriate to be sought for.  In legal proceedings
\ninitiated before a competent court consequent upon attachment
\nunder Section 146(1)<\/a> of the Code it is not necessary to seek
\nrelief of recovery of possession.  As the property is held custodia
\nlegis by the Magistrate for and on behalf of the party who would
\nultimately succeed from the court it would suffice if only
\ndetermination of the rights with regard to the entitlement to the
\npossession is sought for.  Such a suit shall not be bad for not
\nasking for the relief of possession.\n<\/p>\n
(3)\tA decision by a criminal court does not bind the civil court while
\na decision by the civil court binds the criminal court.  An order
\npassed by the Executive Magistrate in proceedings under
\nSections 145<\/a>\/146<\/a> of the Code is an order by a criminal court
\nand that too based on a summary enquiry. The order is entitled
\nto respect and weight before the competent court at the
\ninterlocutory stage.  At the stage of final adjudication of rights,
\nwhich would be on the evidence adduced before the court, the
\norder of the Magistrate is only one out of several pieces of
\nevidence.\n<\/p>\n
(4) \tThe Court will be loath to issue an order of interim injunction or
\nto order an interim arrangement inconsistent with the one made
\nby the Executive Magistrate.  However, to say so is merely
\nstating a rule of caution or restraint, on exercise of discretion by
\nCourt, dictated by prudence and regard for the urgent\/emergent
\nexecutive orders made within jurisdiction by their makers; and
\ncertainly not a tab on power of Court. The Court does have
\njurisdiction to make an interim order including an order of ad-
\ninterim injunction inconsistent with the order of the Executive
\nMagistrate.  The jurisdiction is there but the same shall be
\nexercised not as a rule but as an exception.  Even at the stage
\nof passing an ad-interim order the party unsuccessful before the
\nExecutive Magistrate may on material placed before the Court
\nsucceed in making out a strong prima facie case demonstrating
\nthe findings of the Executive Magistrate to be without
\njurisdiction, palpably wrong or self-inconsistent in which or the
\nlike cases the Court may, after recording its reasons and
\nsatisfaction, make an order inconsistent with, or in departure
\nfrom, the one made by the Executive Magistrate.  The order of
\nthe court  final or interlocutory, would have the effect of
\ndeclaring one of the parties entitled to possession and evicting
\ntherefrom the party successful before the Executive Magistrate
\nwithin the meaning of sub-section (6) of Section 145<\/a>.\n<\/p>\n
In the present case, the trial Court has felt strongly against the
\npolice action taken under Section 145(1)<\/a> of the Code.  This can clearly
\nbe inferred from the observations contained in the order of the learned
\nCivil Judge.  The plaintiff-respondent herein was not allowed  in spite
\nof her efforts  to participate in the proceedings under Section 145<\/a>.
\nThe party proceeded against by the Executive Magistrate was not
\ninterested in contesting the proceedings. The first Appellate Court has
\nnot recorded any disagreement with the observations made by the
\nlearned Civil Judge but has proceeded on a different reasoning which
\nreasoning has been found to be erroneous by the High Court.  The
\nHigh Court has agreed with the view taken by the learned Civil Judge.
\nWe do not think that any case for interference with the order of the
\nHigh Court is made out.\n<\/p>\n
 \tThe appeal is dismissed.  No order as to the costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shanti Kumar Panda vs Shakutala Devi on 3 November, 2003 Author: R Lahoti Bench: R.C. Lahoti, Ashok Bhan. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-260030","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShanti Kumar Panda vs Shakutala Devi on 3 November, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shanti-kumar-panda-vs-shakutala-devi-on-3-november-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shanti Kumar Panda vs Shakutala Devi on 3 November, 2003 - 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