P L D 1971 Lahore 766 (PLP)

(1) That the disputed property, which was acquired by the Central Government from the compensation pool, was out side the purview of the jurisdiction under section 145, Cr. P. C. (2) That regarding said property a civil suit between the parties, under section 9 of the Specific Relief Act, is already pending in the Court of Civil Judge, Rawalpindi, and, therefore, the Magistrate had no jurisdiction to proceed with the matter. (3) That there was no apprehension of the breach of peace between the parties fn view of the judgment of Mr. Muham mad Ali Gheba, Magistrate dated 23‑8‑1969, by which he dismissed the application of the respondent under section 107, P. P. C. (4) That the initial order of the Magistrate dated 22‑10‑1968, by which he purported to acquire jurisdiction, was violative of the requirements of section 145, Cr. P. C., without jurisdiction and nullity in law and consequently all the subsequent orders passed by him are equally ineffective. (5) That in any case there was no fresh material before the Magistrate upon the basis of which he could seal the disputed premises and consequently his order dated 21‑9‑1970 was completely without jurisdiction. Upon these premises it is prayed that the said order may be quashed and the premises unsealed and its possession delivered to the petitioner.

5. Raja Muhammad Anwar, the learned counsel for the petitioner, did not press in service grounds Nos. 1 and 2 perhaps because he was aware that the objections‑raised therein had already received the attention of the Supreme Court of Pakistan in two cases and repelled. In regard to the first ground the judgment of the Supreme Court is reported in the case of S. M. Jaffar v. A. Q. Shaukat (P L D 1969 S C 53) where in regard to the second ground the dictum of the Supreme Court is contained in the judgment delivered in Cr. A. No. 36 of 1970 (Shah Muhammad v. Haq Nawaz and another) on 8‑7‑1970 in which the relevant observations are these: ‑ "The conclusion, we have reached thus, is that a case in which a civil Court is already seized with the subject matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite‑party from interfering with the possession of the decree‑holder, fall outside the jurisdiction of a Magistrate under section 145,. Cr. P. C. An ad interim injunction was granted by the Court on the "13th September 1969, for maintaining status quo i.e. the possession of the plaintiff was not to be disturbed. This order was in operation when the Additional District Judge, Gujranwala, on the Ist October 1969, passed an order under section 145(1) of the Criminal Procedure Code and directed the police to seal the disputed premises. This in effect dispossessed the appellant and thereby cancelled the order of the civil Court dated the 13th September 1969. The order was in our view clearly illegal, no matter how wide the scope of section 145 of the Criminal Procedure Code may be." The admitted position is that in the suit pending between the parties the civil Court has not passed any order in the nature of injunction or otherwise regulating the possession of disputed property. Therefore, it cannot be said that the Magis trate had no jurisdiction to take cognizance of the dispute under section 145, Cr. P. C.

6. The third objection, upon which considerable stress was laid by the learned counsel for the petitioner, appears to be misconceived. It is true that Mr. Muhammad Ali Gheba, Magistrate had dismissed the proceedings between the parties under section 107, Cr. P. C., but that would not mean that the proceedings under section 145, Cr. P. C., which were earlier initiated on the report of Syed Bashir Ali Shah, would automati cally come to an end. I am of the view that although e sections 107 and 145, Cr. P. C., appear to overlap in some respect, yet they encompass two different situations. Section 107, which also deals with the prevention of breach of peace, is altogether general in nature, whereas section 145, Cr. P. C. deals with specific case in which a dispute likely to cause breach of peace is alleged to exist, among others, regarding immovable property: In this view section 145, Cr. P. C., which is special in nature, would apply to the present controversy in preference to section 107, Cr. P. C. The other reason, for which this conclusion can be supported, is that unlike the proceedings under section 145, Cr. P. C. the Magistrate, while seized of a cause under section 107, Cr. P. C., cannot adjudicate upon the question of disputed possession regarding immovable property. However, it is not inconceivable, the present case being the concrete, example that during the pendency of proceedings under section 145, Cr. P. C., in which the Magistrate has not passed any interim order of attachment of the disputed property under the second proviso of that section, a situation might arise which is likely to lead to the breach of peace between the parties. To remedy such a situa tion the better course appears to be that an information should be laid before the Magistrate, who, if satisfied that the alleged situation is likely to cause a breach of peace, might attach the property during the pendency of the proceedings and thus bring to an end the possibility of any further chances leading to the breach of peace. If in a given case, such as the present one this procedure was ignored and resort made to the proceedings under section 107, Cr. P. C., then the consequent decision of the Magistrate would in no way affect the proceedings under section 145, Cr. P. C. in which he is bound to decide upon the question of disputed possession.

7. The learned counsel for the petitioner strenuously urged the last two grounds and in support referred to a number of judgments of our own Courts as well as from Indian jurisdic tion. Since these two grounds are common to both the applica tions they would be dealt with together.

8. So far as the facts, which form the background in which the two impugned orders dated 22‑10‑1968 and 21‑8‑1970, were passed, were not seriously disputed. The main grievance against the order dated 22‑10‑1968 was that it was violative of the provisions of section 145, Cr. P. C., inasmuch as it no where mentions that a dispute likely to cause a breach of the peace existed concerning the disputed premises, and consequently it was without jurisdiction and void. As a corollary of the same contention it was urged that the subsequent order dated 21‑9‑1970 by which the learned Magistrate sealed the disputed premises is equally without jurisdiction and consequently the same is liable to be quashed, the premises unsealed and its possession delivered to the petitioner. Mr. Bashir War, the learned counsel for the respondent, frankly conceded that he could not support the initial order of the Magistrate dated 22‑10‑1968 by which he simply directed the parties to appear before him and file written statements, without complying with the requirements of section 145, Cr. P. C. But he argued that upon the peculiar facts of the case the order in question cannot be challenged by the petitioner in the present proceedings which are essentially discretionary in nature. Elaborating his contention he pointed out that not withstanding the fact that the said order passed in violation of the requirements of section 145, Cr. P. C., the petitioner not only raised no objection to the jurisdiction of the Magistrate at any stage of the proceedings but also participated therein, with a view to obtaining a favourable verdict and when disappointed in that behalf filed the present proceedings. The learned counsel, therefore, urged that under the circumstances the petitioner is not entitled to seek the judicial determination of his grievance in these discretionary proceedings and his petition should be dismissed on the short ground that by his own conduct he has disentitled himself to any relief from this Court. By going through the facts of this case I feel that there is considerable force in the argument of the learned counsel. The record shows that in pursuance of the impugned order of the Magistrate, dated 22‑10‑1968, the petitioner appeared before him without any' objection, filed written statement and participated in the proceedings for almost one year, during which period the evidence of respondent Chiragh Din was fully recorded. It is also on record that after about 15 months of the initial order of the Magistrate the petitioner filed an application before him seeking the dismissal of the proceedings on the ground that during all this period no interim order was passed. This application was dismissed by the Magistrate but his order was challenged by the petitioner in revision petition before the District Magistrate, Rawalpindi, which was also dismissed. In this view the question arises whether the petitioner can be said to have made out a case in the present proceedings for the exercise of discretion in his favour by this Court under sections 439 and 561‑A, Cr. P. C.? In my view the answer must be in the negative for the reason that the petitioner had participated in the proceedings in the Court of the Magistrate for more than one year without raising any objection, obvi ously motivated by the desire to obtain a verdict in his favour, and consequently he cannot now be heard to complain that all these proceedings were without jurisdiction. It is a well established principle of the Law of Equity that in order to be able to persuade the Court to exercise discretion In his favour, the petitioner must show, among others, that he was throughout vigilant and had come to the Court, what has come to be known, with clean hands. The conduct of the petitioner clearly shows that he was not only negligent but also that he had participated in the proceedings for about a year with open eyes, without raising any objection whatever and further that he started complaining of the jurisdiction of the Magistrate for the first time after the entire evidence of the respondent was recorded in his presence and the case was fixed for his evidence. The fact that instead of producing his own evidence, which would have helped terminating the pro ceedings at an early date, one way or other, he started questioning the initial order of the. Magistrate dated 22‑10‑1968 after a period of one year, is a circumstance which recoils on his bona fides. In these circumstances I uphold the prelimi nary objection of the learned. counsel for the respondent that without going into the meris this petition must be dismissed. In reaching this conclusion I was conscious of the basic princi ple of jurisprudence that if, for example the Magistrate in this case could be said to have lacked the inherent jurisdiction to take cognizance of the dispute, then how could his order dated‑22‑10‑1968 be said to be valid, simply because the petitioner had acquiesced in the proceedings without raising any objec tion? However, having anxiously examined this question, I am of the view that it need not be gone into in any detail in the present proceedings as it would suffice to refer to a judgment of the Supreme Court of Pakistan in the case of Ghulam Mohi‑ud Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (PLD 1964 S C 829) in which a similar objection was treated thus: ‑ "One of the grounds upon which the, Courts in England have consistently held a party seeking such a writ to have disen titled himself to this extraordinary remedy is his failure to object to, such usurpation of jurisdiction before the tribunal concerned or to raise the objection at the earliest opportu nity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance, which prevented the Settlement Commissioner in law from exercising his power of review. Not with standing this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. The principle upon which the writ is refused in such cases is not that juris diction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was com mitting such an illegality in consequence of something done by that person himself." The fasts of that case, which are clear from the above dictum of the Supreme Court, are analogous to the facts of the present case except that unlike the present proceedings, in which the Magistrate had the jurisdiction to hear the cause under section 145, Cr. P. C., provided he was satisfied that a dispute likely to cause a breach of the peace existed concern ing the godown premises, the Settlement Commissioner in that case wholly lacked the inherent jurisdiction to entertain the revision application. In spite of this position, however, the Supreme Court censored the conduct of the appellant on the ground that having invoked the jurisdiction of the said Tribu nal with open eyes, he had disentitled himself to question the impugned order passed against him in the writ jurisdiction which was essentially discretionary. It is true that the present proceedings are under sections 439 and 561‑A, Cr. P. C., but tile dictum of the Supreme Court of Pakistan would nevertheless apply as writ jurisdiction and the present proceedings both are essentially discretionary in nature.

8. The grievance in this application is essentially the same as in Cr. R. No. 6 of 1970 except that in the said application order dated 21‑9‑70, by which the godown premises were sealed, is also assailed. Enough has already been said in regard to the initial order of the Magistrate' dated 22‑10‑1968 and, therefore, his order dated 21‑9‑1970 which is an interim order of consequential nature, would be unexceptionable; provided it is found to be in conformity with the provisions of section 145, Cr. P. C. The learned counsel for the petitioner urged that jurisdiction under section 145, Cr. P. C. presupposes the exis tence of an emergency and in order to justify that it was necessary to pass an interim order of attachment of property it must be shown that there was material on record upon the basis of which the Magistrate was satisfied that unless action was taken the alleged dispute was likely to cause the breach of peace. His grievance is that in this case the only material upon which the impugned order was passed by the Magistrate was one year old and consequently the situation could not be considered as emergent so as to justify the passing of the said order. The contention has considerable force, supported as it is by the judgment of the Supreme Court of Pakistan in the case of Malik Manzour Elahi v. Lala Bishambar Dass and another (P L D 1964 S C 137) but upon the facts of this case this also does not help the petitioner. It has already been pointed out that the proceedings under section 145, Cr. P. C. were initiated on the report of S. H. O. Syed Bashir Ali Shah in which it was alleged that the parties were in dispute regarding the godown premises of which they are in part possession and further that it was likely to cause a breach of peace. The report further shows that a serious dispute also exists between them regarding a small shop situated on the Southern side of the said godown. How ever, neither the report in question nor the record before me gives any indication whether the said shop is a part of the godown premises or is a separate structure. But this to my mind would not matter because according to the petitioner's own case the said shop was forcibly taken possession of by the respondent some time in the later part of 1968, respecting which he had filed proceedings against him under section 448, P. P. C. From this it is clear that so far as the godown premises are concerned they are alleged to be in the possession of both parties, whereas the small shop situated on its Southern side is said to be in the possession of the respondent. In these circumstances, the question arises as to what relief could be given to the petitioner, when admittedly there is nothing on record to enable me to identify the portion of the property of which he was in possession before the entire godown premises were sealed. The other difficulty is that according to the last report of the S. H. O., on the basis of which the godown premises were sealed, there exists considerable kabari junk within the premises which each party claims to be his exclusive property. But this question also cannot be decided without evidence and there is no evidence before me to give any finding in this regard. Similarly there is nothing on record to show that the petitioner' was dispossessed of the shop premises within two months next before the initial order of the Magistrate dated 22‑10‑1968, so as to entitle him to its possession under the first proviso of section 145, Cr. P. C. In fact this is the precise question which has to be determined by the learned Magistrate, but it seems, that by not producing his evidence the petitioner himself has prolonged the litigation. Additionally the order dated 21‑9‑1970, by which the disputed premises have been sealed, is an interim order which for lack of evidence before me cannot be interfered with in the present proceedings.

9. Apart from this position the record shows that the parties are extremely inimical towards each other as a result of the above dispute. They have filed against each other a number of criminal cases and at present civil suits are also pending between them regarding the disputed property. In these cir cumstances it would be improper to interfere with the impugned order even if the petitioner was able to make out a case for interference. Therefore, the proper course for the petitioner appears to be to proceed with his case in the Court of the learned Magistrate in which all that he is now required to do is to produce his evidence. This would not only facilitate to terminate the proceedings, one way or another, at an early date but he would also get the required relief provided he is able to satisfy the Magistrate of the genuineness of his cause.

10. In view of this discussion I find no force in both these applications which are dismissed. In the result the other two applications, which are interlocutory in nature, have become infructuous and are dismissed.

11. Before parting with this case I would, however, direct the learned Magistrate to proceed with the case in an expeditious manner, without granting any unnecessary adjourn ments, and finally to dispose it of within two months as of today. If necessary this case should be given preference not only because movable property of considerable value of the parties is alleged to be lying sealed on the permises, but also because its decision, so far as the question of possession is concerned, would bring to an end the long‑standing dispute between the parties. Applications dismissed.