Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 980 OF 2009
[Arising out of SLP (Crl.) No. 5121 of 2008]
M.P. Peter …Appellant
Versus
State of Kerala & Ors. …Respondents
J U D G M E N T
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.
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3. Appellant is said to be the owner and in possession of 13 ¼ 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
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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
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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 High Court dismissed the Criminal
Miscellaneous Case by reason of the impugned judgment dated 19.06.2008.
11. Mr. Roy Abraham, learned counsel appearing on behalf of the
appellant, would contend that the learned Trial Judge as also the High Court
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committed a serious error insofar as they failed to take into consideration
that the appellant being in possession of the property in question, an order of
injunction should have been passed in his favour.
12. Mr. U.U. Lalit, learned senior counsel appearing on behalf of the
respondent No. 3, on the other hand, urged :-
(i) A finding of fact having been arrived at by the learned Executive
Magistrate that the respondent No. 3 was dispossessed by the
appellant within a period of two months from the date of initiation
of the proceedings under Section 145 of the Code of Criminal
Procedure, 1973 (for short ‘the Code’) and, thus, entitled to
restoration of possession, the impugned judgment should not be
interfered with.
(ii) Appellant having raised a contention that he was a co-sharer in
respect of the plot in question, which having not been found favour
with by the courts below, he cannot be said to have any prima facie
case and, thus, the impugned order is unassailable.
13. The proceeding under Section 145 of the Code indisputably remained
pending for a long time. It was initiated on or about 9.01.1996 when a
complaint was filed by the respondent No. 3. As noticed hereinbefore, the
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Sub Divisional Magistrate directed the appellant to handover the property to
the respondent No. 3. However, the order of the Sub Divisional Magistrate
was reversed by the learned Sessions Judge, which in turn was set aside by
the High Court by an order dated 25.09.2007.
14. The correctness or otherwise of the said order of the learned Sub
Divisional Magistrate attained finality as the Special Leave Petition filed
against the order of the High Court dated 25.09.2007 was dismissed by this
Court by an order dated 11.02.2008. Indisputably, the suit was filed
thereafter.
15. An order passed by an Executive Magistrate in exercise of its
jurisdiction under Section 145 of the Code of Criminal Procedure is subject
to the ultimate decision of the suit filed in the civil court.
16. Even a decision of the learned Magistrate on possession of the parties
may have some evidentiary value but the same is not binding on a civil
court. In a proceeding under Section 145 of the Code of Criminal
Procedure, the learned Magistrate would not be entitled to go into a disputed
and in particular complicated question of title. Despite an order passed
under Section 145 of the Code of Criminal Procedure, the Civil Court may
in a suit pass an order of injunction. In this case, however, admittedly
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during pendency of the said proceedings under Section 145 of the Code of
Criminal Procedure, the appellant had constructed a house. Prima facie, the
respondent No. 3 stood thereby. In the proceedings before the learned
Magistrate, he could have filed an application for attachment. He could
have also filed an application for appointment of a receiver. The question as
to whether the constructions were raised only during pendency of the said
proceeding would be considered in the suit by the Civil Court.
17. The High Court in its judgment dated 25.09.2007 while reversing the
order of the learned Sessions Judge noticed that the appellant had
constructed a house and been residing therein. It was in that view of the
matter, he interfered with the order of the Sub Divisional Magistrate
directing that the restoration of possession may be effected after six months
from the said date.
18. It is, therefore, not denied or disputed that the appellant is in
possession of a house and has been residing therein. It also stands admitted
that the respondent No. 3 is not entitled to the superstructure on the land in
suit. Neither the High Court while passing the said order dated 25.09.2007
nor the courts below took this factor into consideration. If, as conceded by
Mr. Lalit that the respondent No. 3 would not be entitled to the
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superstructure standing on the said land, with a view to give full effect to the
order passed by the learned Sub Divisional Magistrate which provides for
handing over of possession only on the land in question, the superstructure
would be required to be demolished.
19. Should the Civil Court have granted an order of injunction in the
peculiar facts and circumstances of the case is the question.
20. We have noticed hereinbefore that whereas the learned Munsiff in his
order dated 24.03.2008 proceeded on the basis that the appellant could not
claim a right over the suit land belonging to a third party unless a case of
adverse possession is made out, the learned first appellate court, in its order
dated 7.04.2008, opined:
“This is a petition filed by the Petitioner/ Appellant
U/o 39 r 1 C.P.C. Heard the counsel for the
petitioner. Perused the appeal records. The
respondents are restrained by an order of
temporary injunction from forcibly evicting the
petitioner from the plaint schedule property until
further orders.”
21. As noticed hereinbefore, a clarification was sought for and by an
order dated 11.04.2008, it was stated that “order is not against the RDO” and
“the respondent alone is restrained”.
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22. Before, however, we advert to the correctness and/ or justifiability of
the said order, we may notice that the learned Subordinate Judge,
Perumbavoor in his order dated 26.08.2008 held as under:
“7. When the matter came up for hearing, the
counsel for the appellants stated that the property
obtained by the appellant is in old Sy. No: 411/2 B
3 and he has filed a petition for amending his
petition and the plaint. He also pointed out that the
petition to amend the plaint is filed before trial
Court. The right claimed in the plaint is filed
before trial Court. The right claimed in the plaint
and the petition is in Sy. No: 412/1. But now the
appellant had sought the petition to amend the
petition and claimed right in Sy. No: 411/2 B 3.
So, it can be seen that the case now pleaded by the
plaintiff is different from what has between the
case set up on the general plaint and the new case
pleased. Hence, the appellant should be given an
opportunity to file a petition before the trial court
to set up his claim separately.
8. As such there is no reason shown to interfere
with the finding of the court below. Hence, this
C.M.A. is dismissed. The matter is sent back to
the lower court for considering the amendment
petition and to decide the matter on merit. In the
meanwhile the parties will maintain status quo.
There shall no order as to costs.”
23. In the suit, the Sub Divisional Magistrate was not a party. No order of
injunction could have been passed against him but then that would not mean
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that the Civil Court could not pass an order of injunction against the
defendant – respondent. If an order of injunction was passed against the
defendant – respondent from obtaining possession, the question of RDO’s
executing his own order dated 9.10.1997 would not arise. Even where a
court or a statutory authority may not be subjected to an order of injunction,
a party can be injuncted from proceeding in the matter as is evident from the
decision of this Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hiralal [AIR 1962 SC 527].
24. Furthermore, there is no doubt or dispute that an application for
amendment of the plaint has been filed and the same has been allowed. In
the meanwhile, this Court by an order dated 28.07.2008 passed an order of
status quo as regards possession. Relying on or on the basis of the said
order, the learned Subordinate Judge by an order dated 12.11.2008 directed
as under:
“5. The order in the C.M.A. is specifically
stated that the matter is sent back to the lower
court for considering the amendment petition and
to decide the matter on merit. In the meanwhile
the parties will maintain the status quo. It is
evident from the order that the parties will
maintain status quo till the matter is adjudicated by
the Munsiff’s Court and a decision is given on
merit. The counter filed by the respondent also
show that the matter is stayed by the Hon’ble
Supreme Court of India. Hence, it is evident that
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the parties have to maintain the status quo till the
case is finally disposed of after the amendment of
the plaint. This petition is closed as per the basis
of the order.”
It was the correctness of the orders dated 7.04.2008 and 11.04.2008
which was questioned before the High Court. The High Court opined:
“21. The learned counsel for the petitioner submits
that a civil suit having been filed and the civil
Court having passed orders like the one passed on
7.04.2008 and 11.04.2008 it must now be held that
there is no threat or breach of the peace and
therefore the order under Sec. 145 of the Cr. P.C.
does not deserve to be executed. I am unable to
accept this contention also. Threat to breach of
peace must certainly be there to invoke the
jurisdiction under Sec. 145 of the Cr.P.C. But it
would be myopic to come to the conclusion that
such threat must continue every day during the
continuation of the proceedings, after the orders
are passed, after the challenge of the orders come
to an end and till the execution of the order. I am
unable to accept the said contention that the threat
of breach of peace must exist until the order is
executed. The parties need not be aiming the
swords at each other during this entire period to
justify execution of the order under Sec. 145 of the
Cr.P.C.”
25. Except at the first instance, the matter had not been considered on
merit. The effect of the order refusing to grant injunction had not been
considered by the courts below. Whether an exceptional case has been made
out or not did not fall for the consideration of the learned courts.
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26. The very fact that a triable issue has been raised by the appellant for
the purpose of grant of injunction was not noticed. Furthermore, the fact
that the appellant is residing with his family on the structure raised by him
also escaped the attention of the learned courts. Respondent No. 3 had been
kept out of possession for a long time. In a case of this nature, interest of
justice would have been sub-served if an order of injunction would have
been passed in favour of the appellant, subject to such terms as the court
might have thought fit and proper to impose..
27. Mr. Lalit would contend that there exists a distinction between
forcible eviction and legal eviction. It is so. But, when an order of
injunction was sought for by the plaintiff – appellant, his prayer was to
obtain an order of injunction so that his possession is maintained.
28. The legality or validity of the order dated 9.10.1997 was in question in
the suit. Even the identity of the suit land, viz., as to whether it falls within
the Survey No. 412/1 is required to be determined.
Our attention has been drawn to a decision of this Court in Shanti
Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] wherein it was held:
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“10. Possession is nine points in law. One
purpose of the enforcement of the law is to
maintain peace and order in society. The disputes
relating to property should be settled in a civilized
manner by having recourse to law and not by
taking the law in own hands by members of
society. A dispute relating to any land etc. as
defined in sub-section (2) of Section 145 having
arisen, causing a likelihood of a breach of the
peace, Section 145 of the Code authorizes the
Executive Magistrate to take cognizance of the
dispute and settle the same by holding an enquiry
into possession as distinguished from right to
possession or title. The proceedings under Sections
145/146 of the Code have been held to be quasi-
civil, quasi-criminal in nature or an executive or
police action. The purpose of the provisions is to
provide a speedy and summary remedy so as to
prevent a breach of the peace by submitting the
dispute to the Executive Magistrate for resolution
as between the parties disputing the question of
possession over the property. The Magistrate
having taken cognizance of the dispute would
confine himself to ascertaining which of the
disputing parties was in possession by reference to
the date of the preliminary order or within two
months next before the said date, as referred to in
the proviso to sub-section (4) of Section 145 and
maintain the status quo as to possession until the
entitlement to possession was determined by a
court, having competence to enter into
adjudication of civil rights, which an Executive
Magistrate cannot. The Executive Magistrate
would not take cognizance of the dispute if it is
referable only to ownership or right to possession
and is not over possession simpliciter; so also the
Executive Magistrate would refuse to interfere if
there is no likelihood of breach of the peace or if
the likelihood of breach of peace though existed at
a previous point of time, had ceased to exist by the
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time he was called upon to pronounce the final
order so far as he was concerned.”
A distinction therein was noticed between a case where the subject
matter of dispute is not attached by the Executive Magistrate and where it is
so ordered. It was observed:
“12. What is an eviction “in due course of law”
within the meaning of sub-section (6) of Section
145 of the Code? Does it mean a suit or
proceedings directing restoration of possession
between the parties respectively unsuccessful and
successful in proceedings under Section 145 or any
order of a competent court which though not
expressly directing eviction of the successful party,
has the effect of upholding the possession or
entitlement to possession of the unsuccessful party
as against the said successful party. In our opinion,
which we would buttress by reasons stated shortly
hereinafter, ordinarily a party unsuccessful in
proceedings under Section 145 ought to sue for
recovery of possession seeking a decree or order
for restoration of possession. However, a party
though unsuccessful in proceedings under Section
145 may still be able to successfully establish
before the competent court that it was actually in
possession of the property and is entitled to retain
the same by making out a strong case
demonstrating the finding of the Magistrate to be
apparently incorrect.”
This Court further observed:
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“15. It is well settled that a decision by a
criminal court does not bind the civil court while a
decision by the civil court binds the criminal court.
(See Sarkar on Evidence, 15th Edn., p. 845.) A
decision given under Section 145 of the Code has
relevance and is admissible in evidence to show:
(i) that there was a dispute relating to a particular
property; (ii) that the dispute was between the
particular parties; (iii) that such dispute led to the
passing of a preliminary order under Section
145(1) or an attachment under Section 146(1), on
the given date; and (iv) that the Magistrate found
one of the parties to be in possession or fictional
possession of the disputed property on the date of
the preliminary order. The reasoning recorded by
the Magistrate or other findings arrived at by him
have no relevance and are not admissible in
evidence before the competent court and the
competent court is not bound by the findings
arrived at by the Magistrate even on the question
of possession though, as between the parties, the
order of the Magistrate would be evidence of
possession. The finding recorded by the Magistrate
does not bind the court. The competent court has
jurisdiction and would be justified in arriving at a
finding inconsistent with the one arrived at by the
Executive Magistrate even on the question of
possession. Sections 145 and 146 only provide for
the order of the Executive Magistrate made under
any of the two provisions being superseded by and
giving way to the order or decree of a competent
court. The effect of the Magistrate’s order is that
burden is thrown on the unsuccessful party to
prove its possession or entitlement to possession
before the competent court.”
29. Correctness of some of the observations made therein although may
be open to question, we need not enter into the said controversy at present.
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30. We may, however, notice that this Court in Shanti Kumar Panda
(supra) held:
“(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 wait
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 the 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,
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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.”
31. In Sh. Vishnu Dutt Sharma v. Smt. Daya Sapra [Civil Appeal arising
out of SLP (C) No. 10997 of 2008, decided on 5.05.2009] and Seth
Ramdayal Jat v. Laxmi Prasad, [ 2009 (5) SCALE 527 ] this Court held that
ordinarily the judgment of a criminal court would not be binding on the
Civil Court. However, the matter will stand on a different footing in a suit
where the correctness of an order passed by an Executive Magistrate under
Section 145 of the Code in question.
32. Apart from the fact that the civil court will have a primacy over the
decision of a criminal court even for the purpose of grant of injunction, it is
a case where an exceptional case has been made out. As admittedly the
appellant has been residing in the suit premises and as furthermore it would
not be practicable to dispossess the appellant upon demolishing the
structure, both balance of convenience as also irreparable injury lie in favour
of the plaintiff- appellant.
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33. We, therefore, direct that the parties shall continue to maintain status
quo till the decision of the civil court subject to the following conditions:
(i) Appellant shall not transfer, alienate or create any third party
interest in the property.
(ii) The hearing of the suit shall be expedited and all attempts should
be made to dispose of the suit within a period of six months from
the date of receipt of a copy of this order.
(iii) The court, save and except for cogent reasons, shall not grant any
adjournment.
(iv) This order would be subject to the final decision of the suit.
(v) In the event, the suit is dismissed, the court would direct payment
of such amount as it may be determined by way of compensation
to the defendant for being kept out of possession from the suit
premises from the date of commencement of the suit till the date of
restoration of possession.
34. The appeal is allowed with the aforementioned observations. In the
facts and circumstances of the case, there shall, however, be no order as to
costs.
………………………….J.
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[S.B. Sinha]
..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
May 11, 2009