IMPORTANT POINT
Judgment of criminal court is not binding on Civil Court. Not so in a suit where the correctness of order passed by Executive Magistrate u/s 145 CrPC is in question. However, decision of civil court is binding on the criminal court.
There is no infirmity in restraining the respondent but not restraining RDO.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 145 – Order passed u/s 145 is subject to the final decision in the suit filed in the civil court – Decision of Executive Magistrate on possession of parties has evidentiary value – But not binding of the civil court – Magistrate not entitled to go into question of title – Civil court can pass an order of injunction despite an order u/s 145. (Para 15, 16, 30)
       (2004) 1 SCC 438 – Relied upon
       (b) Code of Civil Procedure, 1908 – Order XXXIX, Rule 1 – Temporary injunction – Property law – Title of land under dispute – Appellant in possession – Constructing a house – Respondent no. 3 even if entitled to the land not entitled to the superstructure – Court restraining respondent no. 3 from evicting appellant – However, RDO was not restrained – No infirmity – However question of grant of injunction against petitioner-appellant not considered by courts below although respondent no. 3 had been kept out of possession for long. (Para 18, 20, 23, 26)
       AIR 1962 SC 527 – Relied upon
       (c) Code of Civil Procedure, 1908 – Order XXXIX, Rule 1 r/w section 145, Code of Criminal Procedure, 1973 – Interim injunction – Inconsistent with order of Executive Magistrate – Should not be granted – Unless order of Executive Magistrate is shown to be without jurisdiction, palpably wrong or self-inconsistent – Judgment of criminal court not binding on Civil Court – Not so in a suit where the correctness of order passed by Executive Magistrate u/s 145 CrPC is in question – Directions given. (Para 30, 31, 33)
       (2004) 1 SCC 438; Civil Appeal arising out of SLP (C) No. 10997 of 2008; 2009 (5) SCALE 527 – Relied upon
       Facts of the case:
       Appellant claims to be the owner and in possession of 13.25 cents of land in Survey No. 412/1 of Kizhakambalam Village.
       On or about 09.01.1996, a complaint was filed by the respondent No. 3 alleging that the property in question belonged to him.
       As per police report there existed a dispute over title of the said property by and between the appellant and the respondent No. 3.
       The Sub-Divisional Magistrate directed the appellant to handover the property to respondent no. 3.
       The appellant filed a criminal revision petition before the Sessions Court, Ernakulam which was allowed.
       Respondent No. 3 filed Criminal Revision Petition before the High Court which was allowed.
       SLP thereagainst was dismissed.
       Thereafter the Sub Divisional Magistrate directed the appellant to hand over possession of the suit property to the respondent No.3 within three days of the receipt of the said notice.
       The appellant filed a Criminal Miscellaneous case which was dismissed by the High Court.
       Finding of the Court:
       High Court failed to consider restraining appellant.
       Result:
       Appeal allowed.

Judgment :-

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 19.06.2008 passed by a learned Single Judge of the High Court of Kerala in Criminal M.C. No. 1709 of 2008 whereby and whereunder an order dated 3.04.2008 passed by the Sub-Divisional Magistrate was affirmed.

3. Appellant is said to be the owner and in possession of 13 < cents of land in Survey No. 412/1 of Kizhakambalam Village. On or about 09.01.1996, a complaint was filed by the respondent No. 3 alleging that the property in question belonged to him. A report was submitted by the Sub- Inspector of Police on 12.04.1996 before the Sub-Divisional Magistrate under Section 145 of the Code of Criminal Procedure stating that there existed a dispute over title of the said property by and between the appellant and the respondent No. 3. Before the Sub-Divisional Magistrate the appellant herein was arrayed as `the B party and the respondent No. 3 herein was `the A party. By an order dated 9.10.1997, the Sub-Divisional Magistrate held:

"As B party is stated to be residing in the building constructed in the disputed property, he is directed to handover the property to A party within two weeks from today failing which A party is entitled for restoration of possession of the property with police assistance."

4. Aggrieved thereby, the appellant filed a criminal revision petition, marked as Criminal; Revision No. 41 of 1997 before the Sessions Court, Ernakulam which by reason of an order dated 6.03.1999 was allowed. Respondent No. 3 filed Criminal Revision Petition No. 308 of 1999 before the High Court of Kerala challenging the said order dated 6.03.1999. By reason of an order dated 25.09.2007, the revision petition was allowed by the High Court, holding:

"...In the circumstances, I find that the decision of the Sessions Judge reversing the finding of the Sub Divisional Magistrate is liable to be set aside; and I do so. The decision of the Sub Divisional Magistrate is restored. All the same, considering the fact that the respondents/ B party has constructed house and is residing therein, execution of the order of the Sub Divisional Magistrate is only to be initiated after six months from today onwards..."

5. A Special Leave Petition filed thereagainst by the appellant was dismissed by this Court by an order dated 11.02.2008.

6. In the meantime, however, a suit, which was marked as O.S. No. 383 of 2007, was filed by the appellant in the Court of Munsif, Perumbavoor on 1.12.2007 for a declaration that the appellant was the owner and in possession of 13.25 cents of land in Old Survey No. 412/1 of Kizhakkambalam Village. An interim application was filed therein seeking a prohibitory injunction against dispossession which was dismissed by the Munsiff Court by an order dated 24.03.2008.

7. Appellant preferred an appeal thereagainst which was marked as C.M.A. No. 12 of 2008 challenging the said order dated 24.03.2008 and by an order dated 7.04.2008 an order of injunction was passed prohibiting eviction of the appellant from the plaint scheduled property until further orders. However, an application for clarification of the said order was filed by the respondent No. 3 and by an order dated 11.04.2008, it was allowed in the following terms:

"The respondent seeks a clarification that the order is not against the R.D.O. The order of the court is clear. The respondent alone is restrained."

8. By an order dated 26.08.2008, while dismissing the said C.M.A. No. 12 of 2008, the matter was remitted to the lower court with a direction to the parties to maintain the status quo.

9. On or about 3.04.2008, the Sub Divisional Magistrate directed the appellant to hand over possession of the suit property to the respondent No.3 within three days of the receipt of the said notice.

10. Aggrieved thereby and dissatisfied therewith, the appellant filed a Criminal Miscellaneous case bearing No. Crl. M.C. No. 1709 of 2008. Though an interim stay was granted, the Hig

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2009 Supreme(SC) 1058

Supreme Court of India THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA M.P. Peter Versus State of Kerala & Others CRIMINAL APPEAL NO. 980 OF 2009 [Arising out of SLP (Crl.) No. 5121 of 2008]Decided on : 11-05-2009

Cases Referred (3)

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
M.P. Peter
Versus
State of Kerala & Others
CRIMINAL APPEAL NO. 980 OF 2009 [Arising out of SLP (Crl.) No. 5121 of 2008]
Decided on : 11-05-2009