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HIGH COURT OF ALLAHABAD
B.P.Singh
GHANASHYAM DASS GUPTA
Versus
SUB DIVISINAL MAGISTRATE
Decided On : 18 February 1991
Crl. Misc. Application No. 358 of 1991
CRIMINAL PROCEDURE CODE - SECTION 145 - SECTION 16 AND 17 OF THE CODE OF CIVIL PROCEDURE - JURISDICTION - INJUNCTION ORDER - PROPERTY DISPUTE - PARALLEL PROCEEDINGS - ABUSE OF PROCESS OF COURT - QUASHING OF ORDER UNDER SECTION 146(1), CR. P. C.
Fact of the Case:
The petitioners filed a petition under Section 482 Cr. P. C. for quashing an order passed by the Sub-Divisional Magistrate, Mirzapur in a case under Section 145, Cr. P. C. The petitioners and respondents were members of the same family and had a dispute over the family property. The property was partitioned, and the petitioners were put in possession of certain properties, including Thakur Engineering Works Pvt. Ltd. and a house and land in Kachwa Bazar, Mirzapur. The respondents threatened to interfere with the petitioners' possession and sell a plot in Varanasi. The petitioners filed a suit for injunction in the Civil Judge's Court, Varanasi, and obtained an ad interim injunction restraining the respondents from interfering with their possession. The respondents filed an objection to the injunction order, arguing that the Civil Court at Varanasi had no jurisdiction to entertain the suit as the property was situate in Mirzapur District. While the civil suit was pending, the respondents filed an application under Section 145, Cr. P. C. in the court of S. D. M. , Sadar, Mirzapur, in respect of the property known as Thakur Engineering Works, Mirzapur. The petitioners informed the S. D. M. about the pending civil suit, but the S. D. M. passed an order attaching the property under Section 146 (1), Cr. P. C.
Finding of the Court:
The court held that the S. D. M. , Sadar, Mirzapur was not justified in passing the impugned order as the Civil Court was already seized with the matter. The court observed that parallel proceedings should not be permitted to continue and that the criminal court should not be allowed to invoke its jurisdiction when the civil court is examining possession and the parties can approach the civil court for interim orders. The court further held that the injunction order passed by the Civil Court was binding on the criminal court and that the S. D. M. , Sadar, Mirzapur had acted against the settled law by passing the impugned order.
Issues: 1. Whether the S. D. M. , Sadar, Mirzapur was justified in passing the impugned order when the Civil Court was already seized with the matter? 2. Whether the injunction order passed by the Civil Court was binding on the criminal court? 3. Whether the S. D. M. , Sadar, Mirzapur had acted against the settled law by passing the impugned order?
Ratio Decidendi: 1. The court held that the S. D. M. , Sadar, Mirzapur was not justified in passing the impugned order as the Civil Court was already seized with the matter. The court observed that parallel proceedings should not be permitted to continue and that the criminal court should not be allowed to invoke its jurisdiction when the civil court is examining possession and the parties can approach the civil court for interim orders. 2. The court held that the injunction order passed by the Civil Court was binding on the criminal court. The court observed that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. 3. The court held that the S. D. M. , Sadar, Mirzapur had acted against the settled law by passing the impugned order. The court observed that the order under Section 146 (1), Cr. P. C. passed by the S. D. M. , Sadar, Mirzapur was clearly an abuse of the court's process.
Final Decision: The petition was allowed, and the order dated 24-12-1990 passed by S. D. M. , Sadar, Mirzapur in the case of Arvind Kumar & Anr. v. Ghanshyam Das & Ors. , under Section 145, Cr. P. C. was quashed.
The petitioners have filed this petition under Section 482 Cr, P. C. for quashihg the impugned order dated 24th December, 1990 passed by Sub-Divisional Magistrate. Mirzapur in a case under Section 145, Cr. P. C. Arvind Kumar & Anr. v. Ghanshyam Das & Ors. The petitioners and respon dents No. 2 to 4 ate members of the same family. Formerly the family of the parties was joint. Some dispute arose as a result of which the family property was partitioned by Bhishm Prasad Gupta amongst the family members. In the said family partition the property known as Thakur Engineering Works Pvt. Ltd. along with buildings and machines situate in Kachwa Bazar, district Mirzapur and house and land situate in Kachwa Bazar fell to the share of the petitioners. Plot No, 2222 situate in village Mudali, district Varanasi and some other property fell to the share of Dina Nath Gupta, respondent No. 4. The parties were put in separate possession of the said property which fell to their respective shares of the family partition. In a suit No. 447 of 1990. which was filed by Dina Nath Gupta, respondent No. 4 against Bhishm Prasad Gupta and others in the court of Civil Judge, Varanasi, Dina Nath Gupta had admitted the existence of private partition. Subsequently, respon dents conspired with each other and the said suit was withdrawn. Now respondents No. 2 to 4 are out to disregard the family settlements. They threatened to interfere in plaintiffs possession over Thakur Engineering Works situate in Kachwa Bazar, Mirzapur and they also threatened to sell the joint plot No. 2222 situate in district Varanasi. Consequently, a Suit for injunction Suit No. 752 of 1990 was filed by the petitioners against respondents No. 2 to 4 and Bhishm Prasad Gupta on 29-10-1990. On the same day an ad interim injunction was issued by the court restraining the defendants not to interfere with plaintiffs possession over the property known as Thakur Engineering Works Pvt. Ltd. , Kachwa Bazar, Mirzapur. An objection was filed by respondents No. 2 and 3 in the Court of Civil Judge, Varanasi in Suit No. 752 of 1990 to vacate the interim injunction order and one of the
main grounds raised was that civil courts at Varanasi had no jurisdiction to entertain the suit as the property Thakur Engineering Works Pvt. Ltd. was situate in Mirzapur District.
2. While proceedings were pending in the Court of Civil Judge, Varanasi between the contesting parties, an application was moved by Surendra Kumar and others in the court of S. D. M. , Sadar, Mirzapur under Section 145, Cr. P. C, in respect of property known as Thakur Engineering Works, Mirzapur. The petitioners came to know about the said application and moved an application on 17-12-1990 in the Court of S. D. M. Mirzapur intimating the conrt that Suit No. 752 of 1990 was already pending in the in the Court of Civil Judge, Varanasi in respect of property in dispute. The S. D. M. Sadar, Mirzapur had called for some report from the police. Prior to that a Challani report was submitted by S. O. , P. S. Kachwa Bazar, Mirzapur against, ihe petitioners under Section 107/116 Cr. P. C. The contention of the petitioners is that without affording them any opportunity to put up their case, learned S. D. M. on 24- 12-1990 passed the impugned order attaching the property in exercise of powers under Section 146 (1), Cr. P. C. The contention of the petitioners was that the impugned order was not only illegal, arbitrary and without jurisdiction but was also in gross violation of all norms of principles of natural justice as the same was passed in a mechanical manner without affording any opportunity to the petitioners of being heard.
3. The contention of the contesting respondents is that the Civil Judge, Varanasi had no entertain Civil Suit No, 752 of 199o and as such the injunction order issued in the case was not binding upon S. D. M. , Sadar, Mirzapur. The property was situate in Mirzapur District and as there was apprehension of breach o
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