Anis-Ul-Rehman vs Aziz-Ul-Rehman

P.S. Safeer, J.

(1) This petition is in consequence of the order made by Shri R K.Sinha, Addl. Sessions Judge, Delhi on the 29th of No ember, 1972, in exercise of the jurisdiction provided by section 438 of the Criminal Procedure Code, hereafter called "the Code".

(2) The parties to the litigation are related to each other A dispute arose between them regarding the rights which the parties asserted in respect of lop roof of house No. 5314-A Kucha Behman, Delhi.

(3) A report was received by the Sub-Divisional Magistrate on the 16th of July 1972, on account of which he took action u/s 145 of the Code. Apprehending the breach of peace while passing the preliminary order under sub-section 2 of section 145 of the Code, the Sub-Divisional Magistrate directed the attachment of the subject matter in dispute. The original order passed in that behalf under sub-section 4 of section 145 of the Code employs the terms :-

" BEING further satisfied that there is imminent apprehension of breach of peace on account of the disputed premises, the same is ordered to be sealed by the S. H. O. (Lahori Gate)."

It was contended on behalf of the petitioners that no proceedings could have been initiated u/s 145 of the Code in view of the two suits pending between the parties before the Civil Courts in which orders had been issued by these Courts under Order 39 Rules 1 and 2, Civil Procedure Code, in one case directing that status-qua be maintai led and in the other case restraining the present petitioner from interfering with the possession of the roof which the respondent being the plaintiff in that suit asserted was with him.

(4) The learned Addl. Sessions Judge noticed that in a suit filed by the present petitioners, the Civil Court had on the 19th of July, 1972 passed an order to the affect that the parties should maintain status-quo till the disposal of the suit. The respondent to this petition was the defendant in that suit. He filed an independent civil suit asserting that he was in possession of the roof of house No 5314-A. Kucha Rehman, Delhi and the defendants (the present petitioners) were out to interfere with his possession. The respondent being the plaintiff in that suit moved an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC and the Civil Court passed an order restraining the present petitioners from interfering with the possession of the plaintiff of that suit. It is urged that because of the state of civil litigation between the parties no proceedings could have been competently initiated u/s 145 of the Code for the reason that the dispute was the subject matter in controversy in civil litigation was not likely to cause the breach of peace.

(5) If Rule 2 in Order 39 of the CPC is taken into consideration then in terms of sub-rule 3 therein the Court has the jurisdiction to deal with disobedience or breach of any of the terms of the order which the Court may have passed. The property belonging to the person guilty of such disobedience or breach can be attached. Such person can also be directed to be detained in civil prison for a period not exceeding six months. It is true that only the property belonging to the guilty person can be attached and such property may not be the subject of dispute as envisaged by section 145 of the Code. Be that as it may, in this case the parties to the litigation had gone to the Civil Courts asserting their respective rights and had moved appropriate applications on which in one case the direction was that status-quo should be mainlined and in the suit filed by the respondent to this petition the Civil Court granted an interim injunction restraining the present petitioners from interfering with the possession of the disputed roof till the disposal of the suit. In the circumstances prevailing between the parties, there could not be any apprehension of breach of peace. Accepting the recommendation, the proceedings initiated u/s 145 of the Code are hereby quashed.

(6) It may be noticed that where outside section 145 of the Code there is apprehension of breach of peace action can still be taken u/s 107(1) thereof. The petition is disposed of.