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2003(7) Supreme 719
SUPREME COURT OF INDIA
(From Allahabad High Court)
R.C. Lahoti and Ashok Bhan, JJ.
Shanti Kumar Panda -Appellant
versus
Shakuntala Devi -Respondent
Civil Appeal No. 10906 of 1996
Decided on 3-11-2003
Counsel for the Parties :
For the Appellant : Sunil Gupta, Sr. Advocate, Punit Dutt Tyagi, Advocate.
For the Respondent : Jayant Bhushan, Sr. Advocate.
Held : (1) The words competent court as used in sub-section (1) of Section 146 of the code do not necessarily mean a civil court only. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming subject matter of proceedings before the Executive Magistrate; (2) A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the court it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession. (3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence. (4) The Court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by Court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on power of Court. The Court does have jurisdiction to make an interim order including an order of ad-interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad-interim order the party unsuccessful before the Executive Magistrate may on material placed before the Court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the Court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court- final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145. (Para 23)
(ii) Civil Procedure Code, 1908-Order 39, Rule 1 and 2-Constitution of India-Articles 226 and 227-Criminal Procedure Code, 1973-Sections 145/146-Dispute likely to cause breach of peace concerning a shop-Preliminary order u/s 145(1) Cr.P.C.-Order of attachment made u/s 146(1) Cr.P.C.-Respondent 1, owner of shop not impleaded as party to the proceedings-She prayed for impleadment-Application filed by respondent kept pending when proceedings were directed to be disposed of by a final order-Shop directed to be released in favour of appellant until rights were determined by competent court-Respondent filed civil suit based on title, seeking permanent injunction against appellant-Respondent also sought for an ad interim injunction-Civil Judge allowed application directing appellant to remain restrained from interfering with possession of respondent from shop-Whether High Court was justified in restoring the order passed by the Civil Judge-(Yes).
Held : In the present case, the trial Court has felt strongly against the police action taken under Section 145(1) of the Code. This can clearly be inferred from the observations contained in the order of the learned Civil Judge. The plaintiff-respondent herein was not allowed- in spite of her efforts - to participate in the proceedings under Section 145. The party proceeded against by the Executive Magistrate was not interested in contesting the proceedings. The first Appellate Court has not recorded any disagreement with the observations made by the learned Civil Judge but has proceeded on a different reasoning which reasoning has been found to be erroneous by the High Court. The High Court has agreed with the view taken by the learned Civil Judge. We do not think that any case for interference with the order of the High Court is made out. (Para 24)
JUDGMENT
R.C. Lahoti, J.-Shanti Kumar Panda, the appellant before us lodged a complaint with Station Officer, Line Bazar, Jaunpur, whereupon the police filed a report before the Sub-Divisional Magistrate (S.D.M.) Sadar, Jaunpur, who made a preliminary order under Section 145(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code , for short) recording his satisfaction that a dispute, likely to cause a breach of the peace, exists concerning the shop, which is the subject matter of dispute (hereinafter referred to as the shop , for short) between the appellant and one Kamta Prasad (not a party in this appeal) and requiring both of them to attend his court and put in the written statements of their respective claims as respects the fact of actual possession of the shop. The learned S.D.M. also found that the case was one of emergency and therefore he directed the shop to be attached under Section 146(1) of the Code. The preliminary order under Section 145(1) and the order of attachment under Section 146(1) were both made on 16.5.92. Kamta Prasad appeared and stated that he had nothing to do with the shop and the owner of the property, who was also in possession thereof, was one Shakuntala Devi (respondent No.1 herein, hereinafter referred to as the respondent , for short). Kamta Prasad also submitted that the appellant had deliberately not impleaded the respondent as a party to the proceedings as he was in collusion with the police and wanted to deprive Shakuntala Devi of her lawful possession over the shop. Shakuntala Devi, on becoming aware of the proceedings (obviously on the information provided by Kamta Prasad), moved an application before the learned S.D.M. stating that she was a party interested in the subject matter of dispute and as she was in peaceful possession of the shop, she ought to have been joined as party to the proceedings and as that not done, she prayed for her impleadment and an opportunity of being heard.
2. The learned S.D.M. kept the application filed by the respondent pending till 6.7.92 when the proceedings were directed to be disposed of by a final order. No opportunity was allowed to the respondent to join in the proceedings and to file her own claims as to the possession of the shop. The learned S.D.M. held that the appellant was in possession over the disputed shop on the date of the passing of the preliminary order as also in the two months prior thereto. Having made that declaration the learned S.D.M. directed that until the rights were determined by the competent court, the shop shall be released in favour of Shanti Kumar Panda, the appellant.
3. Shakuntala Devi, the respondent and Kamta Prasad both preferred revision petitions against the order of the learned S.D.M. By order dated 27.2.93 the learned Additional Sessions Judge directed the revision to be dismissed by holding that the order of the learned S.D.M. did not suffer from any infirmity. Both these orders were put in issue by the respondent and Kamta Prasad by filing a petition under Article 226 of the Constitution in the High Court which too was dismissed on 6.12.93. One of the reasons which has prevailed with the High Court for dismissing the petition is that the respondent had already approached the Civil Court and the jurisdiction of the Civil Court having been invoked, which was an efficacious alternative remedy available to the respondent, it was not appropriate for the High Court to entertain the writ petition and exercise its jurisdiction under Article 226 of the Constitution.
4. Soon after the decision by the learned Additional Sessions Judge on 27.2.93, Shakuntala Devi, the respondent, filed civil suit No. 283 of 1993 based on title, seeking a permanent preventive injunction against Shanti Kumar Panda, the appellant herein. Kamta Prasad who alone was impleaded by the respondent as the party in the proceedings under Sections 145/146 of the Code was not impleaded as a party in the civil suit filed by the re
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