- (1.) D. K. Seth, J. The opposite party had initiated a proceeding in 1992 under Section 145, Cr. P. c. The property was taken into custodia legia by the court in terms of the Section 146, Cr. P. C. In the said proceeding, the plaintiff was not a party though her brother was a party thereto. Against the said order, a writ petition being Civil Misc. Writ Petition No. 9369 of 1993 was filed in which it was held as follows : "in this writ petition no final order regarding the subject- matter of dispute can be passed. At best the judgments and order passed by the respondents Nos. 1 and 2 could be quashed and Respondent No. 2 could be directed to proceed in the matter after making petitioner No. 1 party to the proceedings, this would however not serve any purpose because the matter is pending in the civil court and during the penden cy of the matter in the civil court, the Magistrate would not be entitled to pass any final order in so far as proceeding under Section 146, Cr. P. C. are concerned. The legal position is that the Order passed by the Magistrate in proceedings under Section 145, Cr. P. C. would be subject to the decision of the civil suit filed by petitioner No. 1 in the Court of Munsif City, Jaunpur and in this view of the no useful purpose would be served by quashing the impugned orders of respondent Nos. 1 and 2. "
(2.) ON the above observation, the said writ petition was dismissed. In a suit being Original Suit No. 283 of 1993, an order of injunction was granted by the learned Civil Judge, Junior Division, Jaunpur on 5th August, 1995 upon an application for interim injunction. Against the said order, Misc. Appeal No. 140 of 1995 was preferred by opposite party No. 2 herein, being the defendant in the suit filed by the petitioner herein as plaintiff. The said appeal was allowed by order dated 15th November, 1995. The present petition has been moved against the said order. When the question of maintainability of an application under Article 226 of the Constitution in respect of the order passed by the Civil Court in a suit for injunction was raised on the basis of the decision in the case of Qamruddin v. Rasool Bux, 1990 (1) AWC 308, and the case of Ganga Saran v. District Judge, Hapur, AIR 1991 All 114, Mr. Shashi Nandan, learned counsel for the petitioner, prayed for leave to amend the cause title so as to convert the application under Article 227 of the Constitution. In the facts and circumstances of the case, the said leave is granted. Mr. Shashi Nandan is directed to carry on the amendment in the course of a week.
(3.) DRAWING any attention to the order passed by the learned Munsif being Annexure '3' the petition, while translating the same at the bar, Mr. Shashi Nandan pointed out that the learned Civil Judge had come to a definite finding that the suit property is in possession of the plaintiff and that has been proved by various docu ments produced by her. DRAWING my attention to the order passed by the lower appellate court while translating the same simultaneously at the Bar, Mr. Shashi Nandan points out that nowhere the said appeal court has come to a definite finding as to the possession of the parties. The learned lower appellate court has also not dealt with the finding of the learned trial court with regard to the possession of the plaintiff. On the other hand, he points out that the learned lower appellate court has proceeded on the basis that by person of an order passed in proceedings under Section 145, Cr. P. C. , the plaintiff was not in possession and that the said facts having not been disclosed, the plaintiff was not entitled to any relief and, therefore, she could not have any injunction. Mr. Shashi Nandan appearing on behalf of the petitioner contends that any order passed under 'section 145, Cr. PC. is subject to the decision by the civil court. Therefore, the question of possession by virtue of any order under Section 145, Cr. P. C. cannot survive as soon as any order has been passed by the civil court and the same has been so, observed in the order passed in the said Misc. Writ petition No. 9369 of 1993, as quoted above. , Even then the order passed in the said criminal proceedings has not reached any finality and was subject to pending civil suit. The learned trial court having found possession of the plaintiff and the same having not been dealt with by the lower appellate court, the lower appellate court had acted illegally and with material irregularity in the exercise of its jurisdiction particularly when it proceeded with alleged basis of criminal proceedings and the fact of non-dis closure thereof. In view of the situation, it was not necessary to disclose the said fact and the same cannot be a concealment. On these submission Mr. Shashi Nandan prays for setting aside the order passed by the lower appellate court.;