- (1.) D. K. Trivedi, J. The present case is under Section 482, Cr. P. C. praying for quashing of the proceedings under Section 145/146, Cr. P. C. in case No. 24 of 1988 in re : Smt. Tanveer Jahan v. Mustaq AH, pending in the court of the Additional City Magistrate, Lucknow.
(2.) THE dispute is in respect of shop No. 2 Safina Restaurant situate at Avadh Corner near K D. Singh Babu Stadium, Luckuow, It is stated that the shop in dispute was purchased in auction by the petitioner from the Lucknow Development Authority in 1983. THE petitioner had deputed Rs. 16. 250/-on 17-5-1983 but thereafter some dispute arose between the petitioner and the Lucknow Development Authority about the premium of the shop in dispute which was finally decides by the High Court in a writ petition No. 6516 of 1986 filed by the petitioner on '1-8-1j86. Incompliance of the said order the petitioner deposited Rs. 60,030/- on 28-8-1986 It is said that Lucknow Development Authority handed over possession of the shop in dispute to the petitioner on 18-5-1983 and the petitioner started running restaurant under the name and style of Safiua Restaurant. It is the cans of the petitioner that opposite party No 4, namly, Smt. Tanvesr Jahan approached the applicant to make her as a partner in the business and, therefore, an agreement of partnership was entered into between the parties After some time a dispute arose between petitioner and opposite party No 4 and, therefore, Suit No. 7 of 1937 as a led by opposite party No. 4 Smt. Tanveer Jahan for declaration in the court of the Civil Judge, Lucknow In the said suit the parties entered into a compromise and they agreed to get their settled through arbitration. Ho thence, the matter could not be decided by the arbitrators. THEreafter the petitioner lad a regular suit (Suit Na. 394 of 198') in the court of t is Civil Judge, Lucknow, for celebration as well as injunction praying that the defendant, namely, Tanvser Jilian be restrained from interfering with the shop in dispute. He further prayed for a decrees for devaluation that the partner-ship entered into between the parties cavil to an 31-10-1937. THE above mentioned suit was descried ex parts on 5-4- 1988 by the Civil Judge, Lucknow. THE Civil Judge decreed the plaintiff's suit for permanent as well as declaration holding that the partnership between the parties can to an end on 31-10-198/. After four days of the decree of 10-4-1938 of P. S. submitted a report that there is a dispute and there is apprehension of the peace, therefore, under 145, Cr. P. C. be initiated. This report is dated 10-4-1918 and it was meteoric in the said report that both the parties failed to produce any paper they will get their rights settled through court. On receipt of this repot the Additional City Magistrate passed an order on 20-4-:'j8s directing the parties to appear before him on 4-5-1988. Oa 4-5-1988 the parties appeared but the case was adjourned for- 17-5-1988. In between the police of P. S Hazratganj again submitted a report on 9-5-1988 stating that there is imminent danger of breach of the peace and, therefore, the property be attached. On receipt of this report the learned Additional City Magistrate passed an order of attachment on 11-5-88 and in compliance of the said order the shop in dispute was attached on 12-5- 1988. It may be mentioned here that opposite party Tan veer Jahan moved an application before the Civil Judge, Lucknow. for setting aside the ex pane decree on 11-4-1988. THE said application was supported by an affidavit in which she stated that on 10-4-1988 police reached the spot and then before the police the applicant told that the ha.-, got an exparte decree, dated 6-4-1988 in his favour and he also informed the suit number etc. She also moved an application for stay of the execution of decree during the pendency of the above mentioned application on which the Civil Judge, Lucknow, stayed execution of the decree on 27-4-1988. On the other hand, the case of opposite party No. 4 is that the shop in dispute is jointly owned by the parties and they were jointly running the business under the name and style of Safina Restaurant. She further stated that petitioner Mustaq Ali was interested to oust the opposite party No. 4 and, therefore, opposite party No. 4 locged a report and on the said report the police made an enquiry and submitted a report for initiation of proceedings under Section 145s Cr, P. C on 10-4-1988. It is not disputed that initially the shop was purchased by the petitioner Mustaq Ali and he was running the restaurant under the name and style of Safina Restaurant. According to opposite party No. 4 a joint application was moved before the Lucknow Development Authority requesting for addition of the name of opposite party No. 4 as owner/allottee of the shop in dispute. THE Lucknow Development Authority by his letter, dated 20-12-1986 informed the parties that the name of opposite party No. 4 has been added as a partner. THE other fact namely, filing of suit as well as application as mentioned above are not disputed by opposite party No. 4. I have heard the learned counsel for the petitioner at great length and perused the affidavits filed by the parties. The main contention of the peti tioner's counsel is that at the time of initiation of proceedings under Section 145, Cr. P. C. a civil litigation was pending and in fact a decree had been passed against opposite party No. 4. Therefore, the criminal proceedings cannot be initiated and the present criminal proceedings in fact have been initiated with mala fide intention in order to circumvent the decree passed by the Civil Court. He further pointed out that if there was dispute then the proper procedure should be to take proceedings under Section 107/116. Cr. P. C. and the action taken under Section 145, Cr, P. C. is without jurisdiction. Learned counsel for the petitioner further stated that the police report, dated 10-4-1983 showing that the parties informed the police that they will get their rights settled through civil court is on the face of it incorrect as the petitioner had informed the police and the opposite party about the decree passed by the Civil Judge as stated by opposite party No. 4 in Para 9 of the affidavit filed in support of the applica tion under Order IX, Rule 13 read with Section 151, Cr. P. C. According to him in order to close the business of the petitioner opposite party No. 4 in collusion with the police got the proceedings initiated with this mala fide intention. In support of this contention the learned counsel for the petitioner referred to the case of Ram Sumer Puri Mahant v. State of U. P. , AIR 1985 SC 472. On the other hand, the contention of the learned counsel for opposite party No. 4 is that there is nothing on record to show that there was any material on record before the City Magistrate to show that civil litigation was going on and secondly the police report shows that the parties alleged that they will get their rights decided through Civil Court and therefore the proceedings initiated by the Magistrate cannot be said to be mala fide. It was further pointed out by the learned counsel for the opposite party that in the suit filed by the petitioner the question of possession was not involved and, therefore, on the said basis it cannot be said that the criminal courts should not initiate pro ceedings under Section 145, C r. F. C. Learned counsel for opposite party further stated that there is no bar to initiate crenate proceedings during his pendency of civil litigation and in support of his contention he cited the case of R. H. Bhutani V. Miss. Mani J. Desai, AIR 1968 SC 1444. He further con tended that as the case reported in AIR 1968 SC 1444 is of three Judges, therefore, the case reported in AIR 1985 SC 472 cannot be relied upon. In my opinion, the question does not arise in this case as the case reported in AIR 1968 SC 1444 and the case reported in AIR 1985 SC 472 are on two different points. The facts of the case of both these cases are also different and the points in question were also different. Both the case enumerated different propositions of law on different points. In AIR 1985 SC 472, it was held that if civil litigation is pending for the property and the parties are in a position to approach the civil court for an interim order, such as injunction etc. for adequate protection of property then criminal proceedings should not be initiated. In fact the multiplicity of litigation is not in the interest of parties or public at large. In the case of Ram Sumer Puri Mahant v. State of U. P. , AIR 1985 SC 472. the Hon'ble Supreme Court observed : "there is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for Respondents 2 to 5 was not in a position to challenge the proposition that one parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examin ed by the Civil Court and parties are in a position to approach the civil court for interim order such as injunction or appointment of receiver for adequate protection of the property doting pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. "
(3.) ACCORDING to this case of Ram Sumer Puri Mahant (supra) criminal proceedings under Section 145, Cr. P. O. should not be initiated if : (1) civil litigation is pending wherein question of possession is involved and has been adjudicated; (2) during pendency of civil litigation if the parties are in a position to approach the Civil Court for interim orders, such as injunction etc. for adequate protection of property. For example, if Civil Court after considering the question of possession passed a decree in favour of one patty the appeal filled by the other party is pending in the appellate court then any party can very well move an application for stay or injunction etc. for pro tection of property and in these existence criminal proceedings should not be initiated and parties should have raised their grievance before the Civil Court instead of initiating another parallel proceedings in criminal court. It does not mean that pendency of any civil litigation outs the jurisdiction of the criminal court or the orders passed by the criminal court become inoperative as soon as civil suit was hide by any of the parties against the other. It may be useful here to mention the case of Jhummamal alias Devandas v. State of Madhya Pradesh, (1988) 4 Supreme Court Cases 452 in which the Hon'ble Supreme Court after considering the case of Ram Sumer Puri Mahant (supra) observed at page 456 as follows : "we fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer case. The ratio of the said decision is that a patty should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the some subject-matter. That does not mean that a concluded order under Section 145, Cr. P. O. made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful partly has approached the Civil Court. An order made under Section 145, Cr. P. C. deals only with the factum of posses sion 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 properly constituted suit. He may file a suit for declara tion and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached. " In view of the above mentioned principle of law in my opinion it is now settled that parallel proceedings in criminal court should not be initiated if civil litigation a mentioned above is pending between the parties. On the other hand, in the case reported in AIR 1968 SC 1444 the Hon'ble Supreme Court had decided three points. Firstly, the scope of satisfaction of the Magistrate under Section 45, (1), Cr. P. C, secondly, whether before the proceedings under Section 145, Cr. I'. C. it is necessary to call police report and, thirdly, the fact that the party in de facto possession if found in possession does not divest a Magistrate of his jurisdiction. The facts of the case are that one cabin was leased out to the appellant by respondent No. 1 for eleven months and after expiry of the time respondent No. 1 ejected the appel lant forcibly from the cabin and, thereafter did not follow the appellant to occupy the same. The appellant lodged several reports but the police did not take any action and finally on the intervention of higher authorities criminal proceedings were initiated against respondent No. 1. Finally, the learned Magistrate passed an order directing respondent No. I to restore possession to the appellant. Respondent No. 1 filed a revision before the High Court which was allowed as according to tae High Court there was no existing dispute likely to result in the breach of the peace. The appellant then filed an appeal before the Hon'ble Supreme Court. It may be mentioned here that respondent No. 1 after dispossessing the appellant and during the pendency of the criminal proceed ings filed a suit for injunction and obtained an interim injunction. On the basis of this fact learned counsel for the opposite party stated that the criminal proceedings proceeded and decided by the Hon'ble Supreme Court even during the pendency of the civil litigation. In my opinion the contention of the learned counsel for the opposite party has no force. Firstly, the point was not in issue before the Hon'ble Supreme Court in this case and secondly, civil suit was filed later on by the part who dispossessed the other forcibly. On the other baud, the point was specifically raised in the case reported in AIR 985 SC 472 and was also decided by the Hon'ble Supreme Court. The only thing in a decision binding as an authority is the principle upon which the case was decided. In the case of R. H. Bhutani V. Miss. Mani J. Desai, (supra) the question whether during the pendency of civil litigation criminal proceedings should be initiated or not was neither raised nor decided by the Hon'ble Supreme Court whereas in the case of Ram Sumer Puri Mahant (supra) the above mentioned question was specifically raised and decided by the Hon'ble Supreme Court. In view of the above discussion in my opinion the law enumerated in the case of Ram Sumer Puri Mahant, AIR 1985, 472 has a binding effect. In my opinion, it is now settled that when a civil litigation is pending for the procure UK J the parties are in a position to approach the Civil Court or interim order, such as injunction etc. , for adequate protection of property then criminal proceeding should not be initiated in respect of the said property.;