Munawar-Ul-Qadar vs Jul-Qadar and Another

S.I. Jafri, J.—This application has been filed u/s 432 Code of Criminal Procedure by Munawar-Ul-Qadar praying that the proceedings u/s 145 Code of Criminal Procedure pending between Haji Mohd. Zul Qadar, Opposite party No. 1 and the applicant be quashed in the interest of justice. This Court after hearing the, submissions advanced by the learned Counsel for the applicant had issued a show-cause notice to opposite parties as to why the application should not be allswepsat the time of admission itself. The court, however, passed an interim order directing that in the meantime- status quo shall be maintained in proceedings .under'' Section 145 Code of Criminal Procedure pending before City Magistrate Saharanpur.

The property in dispute is a shop bearing No. 4/27 situate at Bomanji Road, Saharapur which is said to be in the joint ownership of Azizul Qadar, Izhar Ahmad and Smt. Akhtari Begum. According to the applicant, the shop in dispute is run by him under the name and style of M/s. Munawar-Ul-Qadar Timber Suppliers. The parties are admittedly closely related to each other and a pedigree given in para 3 of the counter affidavit filed on behalf of the Opposite parties is reproduced below:

Zahoor Mohammad (deceased) | ________________________________________________________________________ | | | Phool Mohd. Izhar Ahmad Zamir Ahmad | ________________________________________________________________________ | | | | | | Zaul Azizul Azimal Rahimul Nayyarul Munawar Qadar Qadar Qadar Qadar Qadar Ul Qadar

Thus as evident from the above pedigree, the applicant Munawar-Ul-Qadar and the Opposite party No. 1 Zul Qadar are brothers being the sons of Phool Mohammad

The case of the applicant is that the shop in dispute is jointly owned by Azizul Qadar, Izbarul Qadar and Smt. Akhtari Begum and the same is in the tenancy of the applicant since 01.05.1986. The receipts of rent dated 01.05.1986, 02.07.1986, 04.08.1986 and 05.09.1986 have been annexed by the applicant as Annexure 1 to the affidavit. The aforesaid assertion of the applicant that the shop in dispute has been in his tenancy had not specifically been dented by Zul Qadar in para 20 of his affidavit, though it was half-heartedly averred in pata 15 of the affidavit that the applicant had concocted the story that he had taken the premises on rent. The applicant had also asserted that he applied for Sales Tax registration on 01.09.1986 and survey was conducted by Sales Tax Department on 10.10.1986 and the aforesaid Department found that the shop had been running from 01.05.1986 and consequently, the applicant was issued a Sales Tax registration number for the aforesaid shop. This assertion of the applicant was also not specifically denied by Opposite party No. 1 in para 23 of his affidavit as it was merely and feebly averred that the documents were fabricated.

The City Magistrate Saharanpur passed an order u/s 145 Code of Criminal Procedure on 23.10.1986 on the basis of Police Report dated 12.10.1986 (Annexure 2 to the affidavit) directing the parties concerned to appear before his court on 30.10.1986 at 10 a. m. to file their written statements with regard to the possession over the disputed shop. The Police report showed that on 04.08.1986, the parties had quarrelled with each other resulting in their arrest u/s 151 Code of Criminal Procedure. The Police had arrested Nayyarul Qadar, Rahimul Qadar on the side of the applicant and Izhar Ahmad and Zamir Ahmad and Zul Qadar O. P. No. 1 on the other side. Both the parties were subsequently released on bail. It was also mentioned in the report that again on 20.10.1986, the parties had tried to assault each other in a bid to take forcible possession over the shop and apprehending danger to their lives, the police had arrested Izhar Ahmad, Zamir Ahmad and Zul Qadar O. P. No. 1 on one side and Izharul Qadar, Rahimul Qadar and Munawar-ul Qadar applicant on the other side u/s 151 Code of Criminal Procedure. The police had mentioned in the report that the bone of contention between the parties is the disputed shop and both the parties have been trying to take forcible possession over the said shop.

It also appears from the record that on 20.10.1986 after arresting the parties u/s 151 Code of Criminal Procedure at about 10.11 a. m., the police had ,put a lock on the disputed shop without any order from the Magistrate in order to prevent breach of peace. The applicant subsequently moved an application before the Chief Judicial Magistrate u/s 457 Code of Criminal Procedure seeking directions to the police to unlock the shop in dispute. The learned Magistrate called for a police report from police station Kotwali. The police had reported that the shop in question was locked as a measure of preventing breach of peace between the parties. The learned Magistrate after hearing the parties, arrived at a conclusion that the shop bad been illegally locked by the police and directed the police to remove lock from the shop vide his order dated 31.10.1986 and consequently, the police unlocked the shop in dispute on 01.11.1986 and In this way, the applicant retrieved possession over the shop in dispute from the police. However, it was asserted in the counter affidavit filed by Zaul Qadar that the applicant had got the possession over the shop in league with police as there was no direction to the Police by Chief Judicial Magistrate in his order dated 01.11.1986 to deliver possession to either party. This contention of the Opposite party No 1 is not without substance. It also appears that simultaneous proceedings u/s 107/116 Code of Criminal Procedure were initiated on 20.11.1986 by the learned Magistrate against the applicant and Opposite party No. 1 and others together with proceedings u/s 145 Code of Criminal Procedure which have been pending in the Court of City Magistrate Saharanpur.

It was asserted by the applicant in Paras 10 and 11 of his affidavit that he had filed a suit No. 346 of 1986 on 04.11.1986 in the court of Munsif city Saharanpur regarding the disputed shop against the opposite party No. 1 and he was granted an interim injunction restraining the opposite party No. 1 Zul Qadar, Haji Mohd. Iqhamul Qadar and Smt. Akhtari Begum from interfering with the possession of the applicant over the shop in dispute. True copy of the said order had been annexed by the applicant to his aforesaid affidavit. It was further asserted in para 11 of the affidavit that notices in the said suit were issued to the opposite parties for their appearance on 13.11.1986 and that inspite of the service of the notices on them, no objection was filed by the opposite parties on 13.11.1986 and as such the order dated 04.11.1986 was confirmed by the Munsif City Saharanpur on 13.11.1986. The applicant has annexed a true copy of the said order as Annexure 6 to this affidavit. These assertions of the applicant mentioned in paras 10 and 11 of the affidavit have not been controverted by opposite party No. 1 in his counter affidavit.

The learned Counsel for the applicant vehemently contended that in view of the filing of the civil suit regarding the same property between the parties, the proceedings u/s 145 Code of Criminal Procedure pending before the Magistrate are not maintainable and deserves to be dropped. It was also contended that in view of the pendency of proceedings u/s 107/116 Code of Criminal Procedure pending against the parties the proceedings u/s 145 Code of Criminal Procedure are unwarranted. On the other hand, the learned Counsel for the opposite party No. 1 contended that the proceedings pending before the City Magistrate, Saharanpur u/s 145 Code of Criminal Procedure deserve to be continued in accordance with law. It was further contended that simultaneous proceedings u/s 107/116 Code of Criminal Procedure is no bar for continuance of the proceedings u/s 145 Code of Criminal Procedure.

Admittedly, the civil suit regarding the disputed property between the parties has been filed and is pending in the court of Munsif City Saharanpur and ah interim injunction passed by the aforesaid court had been confirmed. It is admitted by O. P. No. 1 that the aforesaid suit is pending before Munsif City, Saharanpur. The pendency of the proceedings u/s 107/116 Code of Criminal Procedure between them is also admitted.

Having heard the learned Counsel for the parties, I consider it appropriate and just that the matter in dispute be left for being adjudicated by the Civil Court and the proceedings u/s 145 Code of Criminal Procedure be dropped. The proceedings u/s 145 Code of Criminal Procedure are initiated in order to prevent the breach of peace with regard to the dispute between the parties regarding Immovable property. It also contemplates speedy and expeditious remedy regarding dispute for possession over the Immovable property whenever there is likelihood of breach of peace between the parties.

The proceedings u/s 145 Code of Criminal Procedure carry within its sweep a limited purpose. It is short-lived and its extent and scope are also limited being meant for a transitional period. The final order passed by the Magistrate u/s 145 Code of Criminal Procedure is rendered defunct with the passing of a decree by the Civil Court regarding the same disputed Immovable property and between the same parties. Thus, the jurisdiction of the Magistrate is confined to prevention of breach of peace in order to maintain tranquillity.

The Criminal courts should be circumspect while conducting proceedings u/s 145 Code of Criminal Procedure. If during the pendency of the proceedings u/s 145 Code of Criminal Procedure the court is informed by either of the parties that a Civil suit has been filed and is pending in court between the same parties in respect of the same property in dispute, the Magistrate should not at all vacillate in dropping the proceedings u/s 145 Code of Criminal Procedure The Magistrate in such a situation should go ahead with the proceedings u/s 107/116 Code of Criminal Procedure against the parties if the preventive proceedings are pending. However, if no proceedings u/s 107/116 Code of Criminal Procedure are simultaneously pending with the proceedingsUnder Section 145 Code of Criminal Procedure against the parties the Magistrate shall forthwith call for a report from the police regarding the likelihood of breach of peace with reference to the disputed property between the parties. If from the police report, the Magistrate is satisfied about the existence of apprehension of breach of peace, the Magistrate shall initiate proceedings u/s 107/116 Code of Criminal Procedure against both the parties. Likewise if the property is found to be joint property in proceedings u/s 145 Code of Criminal Procedure the Magistrate becomes functus officio and proceedings should be dropped. However, the Magistrate may initiate proceedings u/s 107/116 Code of Criminal Procedure against both the parties for preventing the breach of peace if apprehension of breach of peace exists between the parties. However it is made clear that there is no bar for drawing simultaneous proceedings u/s 145 Code of Criminal Procedure and 107/116 Code of Criminal Procedure between the parties by the Magistrate.

In the result, the application u/s 482 Code of Criminal Procedure filed by the applicant is allowed. The proceedings u/s 145 Code of Criminal Procedure pending in the court of the Sub Divisional Magistrate Saharanpur between the parties regarding the shop in dispute i.e. shop No. 5/207 situate at Bomanji Road, Saharanpur are accordingly quashed as not maintainable. However, if there exists apprehension of breach of peace between the parties, the Magistrate is directed to proceed with the cases pending against both the parties u/s 107/116 Code of Criminal Procedure as a preventive measure in accordance with law. It'' the aforesaid proceedings u/s 107/116 Code of Criminal Procedure in this case have come to an end or dropped, the Magistrate is directed to draw fresh proceedings u/s 107/116 Code of Criminal Procedure against both the parties in order to prevent the breach of peace.

Let a copy of this order be sent to the City Magistrate Saharanpur for compliance within a week from today.