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Judgment
B.P. Singh, J.—The Petitioners have filed this petition u/s 482 Code of Criminal Procedure for quashing the impugned order dated 24th December, 1990 passed by Sub-Divisional Magistrate, Mirzapur in a case u/s 145 Code of Criminal Procedure. Arvind Kumar and Anr. v. Ghanshyam Das and Ors. The Petitioners and Respondents No. 2 to 4 are 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. alongwith 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 separte 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 partion. Subsequently, Respondents conspired with each other and the said suit was withdrawn.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 Plaintiff''s 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.
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 u/s 145 Code of Criminal Procedure 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 court that Suit No. 752 of 1990 was already pending 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 the Petitioners u/s 107/116 Code of Criminal Procedure. 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 u/s 146(1) Code of Criminal Procedure. 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.
The contention of the contesting Respondents is that the Civil Judge, Varanasi had no jurisdiction to entertain Civil Suit No. 752 of 1990 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 of peace, S.D.M., Sadar, Mirzapur was within his legal rights to pass the impugned order. The property was not situate within the local limits of the territorial jurisdiction of Civil Judge, Varanasi and as such the injunction order passed in the Suit in question was non-est. It was a deliberate attempt on the part of the Petitioners to get an injunction order from the Civil Court Varanasi knowing fully well that the property was situate in Mirzapur district. There was no legal bar for simultaneous proceedings u/s 107/116 Code of Criminal Procedure and Section 145 Code of Criminal Procedure. The order passed in proceedings u/s 145 Code of Criminal Procedure was not without jurisdiction simply because the police had submitted a challani report u/s 107/116 Code of Criminal Procedure against the parties involved in the proceedings u/s 145 Code of Criminal Procedure. Under the extreme emergency the learned S.D.M., Sadar Mirzapur had no option but to pass the impugned order. Learned magistrate was aware of the injunction order while passing the order on 24-12-1990 and the order in question was passed for the simple reason that there was grave apprehension of breach of peace.
I have heard learned Counsel for the parties. The main contention of the Petitioners'' counsel is that since Civil Court was already seized with the matter, the learned S.D.M., Sadar, Mirzapur was not justified in taking recourse to the passing of the impugned order. On the other hand learned Counsel for the Respondents has contended that the learned S.D.M., Sadar, Mirzapur was fully justified and competent to pass the impugned order because the Civil Court at Varanasi had no jurisdiction to pass any injunction order regarding the property in dispute and the injunction order passed in Suit No. 752 of 1990 of the court of Civil Judge, Varanasi was non-est.
It is true that the inherent powers of the court u/s 482 Code of Criminal Procedure are to be used in extreme cases and very sparingly when there is reason to believe that there is misuse of process of court. Ordinarily the High Court is not expected to intervene or interfere in a criminal proceeding u/s 145 Code of Criminal Procedure if the proceedings are at an interlocutory stage. But where the abuse of the process of court is obvious and the criminal court has acted against the settled law, the High Court is bound to intervene and interfere in the proceedings even if the said proceedings are at an interlocutory stage. In this connection I may refer to the case of Ram Sumer Puri Mahant Vs. State of U.P. and Others, . The Supreme Court has observed as follows:
There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for Respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoice its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceeding u/s 145 of the Code has been initiated and the property in dispute has been attached.
The ratio of the above cited case does not call for any ambiguity. If the civil court is seized of a dispute between the parties relating to a piece of land or other immovable property, proceedings u/s 145 Code of Criminal Procedure should not be initiated and no action should be taken in the said proceedings by the S.D.M. concerned. In the present case the Civil Suit was already pending in Varanasi regarding the property in dispute and ad interim injunction had been issued against the contesting Respondents and they were restrained from interfering with the Petitioners'' possession over the property in dispute. The contesting Respondents had put in appearance in the Suit and had filed objections against ad interim injunction order. Their objections were still pending and the injunction order was still in force when the impugned order was passed by the S.D.M., Sadar, Mirzapur regarding the same property. The order u/s 146(1) Code of Criminal Procedure passed by the S.D.M., Sadar, Mirzapur was clearly an abuse of the court''s process.
The contention of the learned Counsel for the Respondents that the injunction order was non-est has no force. Section 16 of the CPC deals with the place of suing regarding the suits in relation to immovable property. Sub-section (2) provides that subject to pecuniary and other limitations prescribed by any law, suits for determination of any other right or interest in an immovable property shall be instituted in the court within the local limits of whose jurisdiction the property is situate. Section 17 CPC provides that if the property in dispute is situate within the local limits of various courts'' jurisdiction, the suit may be instituted in any one of these courts. Suit for injunction is covered by Section 16(d) of the Code of Civil Procedure. The reason that unless the party succeeds in proving his interest in immovable property, the court cannot grant him any injunction order. In this view I am fortified with the view taken by a single Judge of this Court in the case of Om Prakash and Another Vs. Anar Singh and Others, .
According to the plaint of the Suit No. 752 of 1990 (Annexure-2) one of the properties is said to be situated in Varanasi while the remaining property was situate in Mirzapur. The averment was that the Respondents wanted to transfer the property situate in Varanasi and had threatened to interfere in Petitioners'' possession over the property situate in Mirzapur. The question of jurisdiction at the time of the suit''s institution is to be determined on the allegations made in the plaint. At this stage these allegations are taken to be correct. The question of lack of territorial want of jurisdiction is not a case of inherent want of jurisdiction. Of course it is open to the Defendant in a suit to challenge the territorial jurisdiction before the court in which the suit has been filed. Till the court holds that it had no territorial jurisdiction to hear and decide the suit, every order passed by the court till that time shall remain in force and shall be binding upon the parties to the suit.
It appears that in the Suit No. 752 of 1990 the Respondents did raise the plea to the effect that Civil Court at Varanasi had no terirorial jurisdiction to hear the suit in question. The plea was considered by the Civil Judge when he confirmed the injunction order on 17-1-1991. The remedy of the Respondents lay in the appellate court. No doubt the S.D.M., Sadar, Mirzapur was not a party to the civil suit at Varanasi, but two parallel proceedings cannot be permitted to be cairried on at the same time in regard to any property. It is one of the basic principles of Civil Law that the property disputes are to be determined by the civil courts.
The petition is hereby allowed. The order dated 24-12-1990 passed by S.D.M., Sadar, Mirzapur (Annexure-1) in the case of Arvind Kumar v. Ghanshyam Das u/s 145 Code of Criminal Procedure is hereby quashed.