P L D 1959 (W (PLP)

Ghias Muhammad for Respondent (2). Shahbab Mufti for Respondent (1). Dates of hearing : 12‑1‑59 and 19‑1‑1959. This is a revision petition by Dilbaz Khan against the order of Mr. Manzur Ahmad Khan Leghari, Magistrate 1st Class, Sargodha, dated the 6th of December 1958, whereby proceed ings were initiated under section 145 of the Code of Criminal Procedure and the Japan Cotton Ginning, Pressing and Oil Seed Factory was attached. The petitioner has prayed that the proceedings be quashed or at least the order of attachment be set aside.

2. The material facts giving rise to this petition are these: The Japan Cotton Ginning, Pressing and Oil Seed Factory belongs to Messrs Nichiman Company Limited (Osaka), Japan, and is held on lease by Messrs Nichiman Company (Pakistan) Limited. Mr. H. Inoue, respondent No. 2, is the Director of the latter Company. On the 1st of August 1958, the petitioner paid Rs. 20,000 to respondent No. 2 and obtained the sub‑lease of the aforesaid factory from him for a period of eleven months and took possession of it. The petitioner claims to have spent another sum of Rs. 32,000 in repairing the machinery etc. He alleges that in October 1958, respondent No. 2 in order to back out of his commitments made an attempt to interfere with his possession and, consequently, he instituted a suit for injunction in the Court of the Civil Judge, Sargodha. On 15th October 1958, the Civil Judge issued a temporary injunction to respondent No. 2 restraining him from interfering with the possession of the petitioner. On 6th November 1958, respondent No. 2 put in an application, before the Civil Judge for vacation of the temporary injunction. These proceedings were still pending when on the 5th of December 1958 the Station House Officer, City Police Station Sargodha submitted a report before the Ilaqa Magistrate for taking action under section 145 of the Code of Criminal Pro cedure. The learned Magistrate summoned the parties for the 6th and then, presumably after hearing them, drew up the preliminary order to the effect that there was a serious dispute between the parties in respect of the possession and disposses sion of the factory and civil litigation was going on between them and their relations were strained and there was an imminent danger of breach of peace. Being satisfied that the dispute likely to cause a breach of the peace existed between the parties concerning the factory, he called upon them to put in their written statements on the 11th of December 1958 in respect of their claims as regards the fact of actual possession of the factory. He also considered it a case of emergency and ordered the attachment of the factory and directed the Station House Officer, City Police Station, to take possession thereof.

3. Mr. Inoue has filed an affidavit in which he admits the fact that the factory was sub‑leased by him to the petitioner, but his case is that on the 1st of October 1958 the petitioner wrote him a letter that the machinery and the building were in a damaged condition and required about a lac of rupees for repairs, and as he could not afford to spend any money, so the lease may be treated as cancelled and the lease‑money refunded to him. He says that as desired by the petitioner, Rs. 20,000 were refunded to him on the 8th of October 1958 and in token thereof the petitioner had executed a stamped receipt in his favour and had also restored the possession of the factory to him. He alleges that thereafter, on the 13th of October 1958, the petitioner had taken forcible possession of a portion of the factory and with a view to cover his illegal act of trespass had filed the civil suit on the 15th of October on false allegations. He has placed before this Court the photostat copies of the letter and the receipt. The originals have been produced before the Civil Court. The petitioner has denied having executed these documents and has alleged that his signatures have been forged.

4. The learned counsel for the petitioner has challenged the validity of the proceedings under section 145, Criminal Procedure Code, on two grounds : firstly, that there was no material before the learned Magistrate to satisfy him that a dispute likely to cause a breach of peace existed between the parties and, secondly, that the learned Magistrate had no jurisdiction to initiate the proceedings under section 145, Criminal Procedure Code, because the petitioner had already filed a civil suit in respect of the subject‑matter of the dispute and the Civil Court had issued a temporary injunction to respondent No. 2 restraining him from interfering with his possession of the factory.

5. As regards the first point, it is clear from the language used in subsection (1) of section 145, Criminal Procedure Code, that a Magistrate is entitled to form his opinion on any infor mation received by him. It is not necessary for the Magistrate to examine any witnesses before passing the preliminary order. In the present case, the police report was before the learned Magistrate, in which after narrating the facts it was alleged that there existed a dispute between the parties which was likely to cause a breach of the peace. The question whether upon the material placed before him the Magistrate should have initiated the proceedings was entirely within the discretion of the learned Magistrate. Under subsection (5) of section 145 of the Code of Criminal Procedure, the parties have got a right to show that no such dispute exists or existed and in such a case the Magistrate is empowered to cancel the preliminary order. The petitioner will be within his right to take up this point before the learned Magistrate and to lead evidence in support of it and if he is able to show that no dispute likely to cause a breach of the peace exists or existed, the learned Magistrate shall have to cancel the preliminary order. However, in the absence of any evidence on the record, it is impossible for me to hold at this stage that no such dispute exists or existed between the parties. Such orders are not lightly interfered with by ; this Court, during the pendency of the proceedings before the Magistrate.

6. In support of his second objection, the learned counsel for the petitioner cited a number of authorities before me. But I do not propose to refer to those rulings as most of them deal with cases under section 144 of the Code of Criminal Procedure and as such have no direct bearing on the point involved. In some other cases, the rights of the parties had already been adjudicated by the Civil Court. The only ruling, the facts of which are almost similar to the facts of the present case, is reported as Diwan Chand and others v. Emperor (A I R 1929 Lah. 223). In that case, a civil suit had already been filed by one party and a temporary injunction had also been issued to the opposite party before proceedings under section 145, Criminal Procedure Cole, were taken by the Magistrate. But the learned Judge did not give any definite finding on this aspect of the matter as the parties agreed before bim that they would fight out their rights in the Civil Court and it was for that reason that the proceedings were quashed. There is some authority for the view that the pendency of a civil suit by itself is no bar to action being taken by a Magistrate under section 145, Criminal Procedure Code. Reference, in this connection, may be made to Mst. Makhana Devi v. Kamla Pat Ram (A I R 1935 Oudh 255). The learned counsel for the petitioner was unable to cite any authority to the contrary. In fact, he frankly conceded this proposition. And I have no doubt in my mind that the mere fact that a civil suit is filed in respect of the subject‑matter of the dispute is by itself not sufficient to oust the jurisdiction of the Magistrate. By the filing of the civil suit, the dispute between the parties does not cease to exist and the likelihood of a breach of peace is not in any way lessened.

7. The learned counsel for the petitioner, however, laid great stress on the point that because a temporary injunction had been issued by the Civil Court to respondent No. 2, whereby he had been restrained to interfere with the possession of the petitioner, therefore, the question of the likelihood of a breach of peace did not arise at all and the learned Magistrate should have refrained from taking any action in the matter and should have directed respondent No. 2 to seek his remedy in the Civil Court.

8. It is clear from the provisions of section 145, Criminal Procedure Code, that the jurisdiction of a Magistrate to take action under this section arises as soon as he is satisfied that there is a dispute concerning land or water etc., and that such dispute is likely to cause a breach of the peace. If these two conditions co‑exist, then the Magistrate is empowered to act under this section. The object of the provision is the prevention of the breach of the public peace and the Magistrate is required to act speedily and firmly to meet the situation. In the present case, both the parties are claiming possession and dispossession of the factory. Civil litigation is also pending between them and Mr. Inoue in his affidavit has stated that a report about the criminal trespass had been made against the petitioner to the Superintendent of Police and on the basis of that report investiga tion is proceeding. In these circumstances, if the learned Magis trate felt satisfied that there was a serious dispute between the parties in respect of the factory which was likely to cause a breach of the peace, no exception can be taken to this finding.

9. The temporary injunction issued by the Civil Court was passed ex parte and is being contested.' It is merely provisional in its nature and does not conclude a right. It may be discharged varied or set aside at any time under rule 4 of Order XXXIX, C. P. C. It was granted on an interlocutory application of the petitioner until further order of the Court and the defendants were directed to file their objections if any on the 6th of November 1958. The objections have been filed and the matter is pending decision. Nobody can foretell what the decision is going to be. The possibility of the temporary injunction being vacated cannot be excluded. But even if it is confirmed, then also the objection will be available to the opposite party that with the issuance of a temporary injunction the rights of the parties have not been finally and conclusively determined. Temporary injunctions are regulated by rules 1 and 2 of Order XXXIX of the Civil Procedure Code. The principles governing the granting of a temporary injunction are now well settled. The Court is not expected to examine the merits of the case closely. All that the Court has to see is that on the face of it the person applying for an injunc tion has a case which needs consideration and the comparative balance of convenience and inconvenience has also to be looked into. In exercising this jurisdiction, the Court does not profess to determine the legal rights of the parties in respect of the property, but acts on the assumption that the party seeking its interference has the legal right and needs the aid of the Court for the protection of the right until the legal right is finally ascertained. As a general rule, a temporary injunction is not issued unless a notice is given to the opposite party as required by rule 3 of Order XXXIX, C. P. C. But, unfortunately, this was no done in the instant case, and the learned Civil Judge did not record any reason" for not complying with this provision. The power to issue an ex‑parte injunction no doubt exists, but e before stripping a party of his legal rights, the Court must be satisfied that considerable mischief might ensue if the issue of a temporary injunction were delayed until notice was given. The order on the face of it must show that the Court had applied its mind and had passed the order in the light of the well recognised principles. It should not take the form of a routine order.

10. After giving a careful consideration to this aspect of the matter, I have arrived at the conclusion that the issue of a temporary injunction in the circumstances narrated above did not oust the jurisdiction of the Magistrate to take proceedings under section 145, Criminal Procedure Code, if he felt satisfied that a dispute existed between the parties concerning the possession and dispossession of the factory and it was likely to cause a breach of the peace. Under the provisions of section 145, Criminal Procedure Code, the Magistrate is empowered to settle the matter temporarily as regards the actual possession and to restore possession to a person if he was forcibly and wrongfully dispossessed within two months from the date of the drawing of the preliminary order and to maintain the status quo until the rights of the parties are deter mined by a competent Civil Court. With the issuing of a temporary injunction to respondent No. 2, the danger of a breach of the peace was not removed. If the respondent was in actual possession of the entire premises or a portion of the factory, he was not required to surrender his possession to the petitioner. In fact, the respondent is claiming that he was in actual possession of the entire premises of the factory. In obedience to the temporary injunction, the respondent may not have done anything to disturb the peace, but there was nothing to prevent the peti tioner from using violence in order to obtain forcible possession of the entire factory. In my opinion, the likelihood of a breach of the peace continued to exist as before. If the issuing of a temporary injunction to one of the parties to a dispute were to oust the jurisdiction of the Magistrate concerned, then nothing would be easier for a clever person to obtain possession of the property forcibly and wrongfully and then to file a suit for injunc tion and obtain a temporary injunction ex parte restraining the opposite party from interfering with his possession. This could not have been the intention of the Legislature. It is true that the final determination of the legal rights of the parties rests with the Civil Court, but until the determination of such rights, I am inclined to hold that the jurisdiction of the Magistrate to take proceedings under section 145, Criminal Procedure Code, is not ousted. It is a different matter altogether if the Civil Court appoints a receiver or otherwise attaches the property, because then the property passes into custodia legis and the contestine parties are prevented from making any attempt to take actual possession of the property and thus the danger of a breach of the peace is removed.

11. As regards the attachment of the factory, the learned counsel for the petitioner urged that no case of emergency had been made out for taking such a drastic action. The learned Magis trate has given certain reasons in the preliminary order for taking such an action and under the law he had the discretion in the matter. Having regard to all the circumstances of the case, I do not think any case has been made out for interfering with the exercise of such a discretion.

12. For the aforesaid reasons, I do not see any force in this petition and dismiss it. A. H. Petition dismissed.