P L D 1971 Lahore 478 (PLP)

Held: The proposition of law as enunciated by the State counsel is correct but in a case where the attack is on the very jurisdiction of the Court and it is clear that the proceedings will amount to abuse of the process of Court, the petitioner has a right to approach the High Court at the very start and ask for quashing of the proceedings so that he is saved from the vicissitudes of a protracted litigation. The rights of the petitioner in regard to the possession of the shop had been determined by a pronouncement of a competent civil forum and she was within her rights to come to the High Court and ask that the Rent Controller's order should be maintained and that the criminal Court should not be permitted to enter into the question of possession which stood already determined. Shaukat Ali Malik for Petitioner. Khawaja Muhammad Asghar for the State. Raja Muhammad Akram for Respondent No.

2. Date of hearing: 30th April 1969. This petition seeks the quashing of proceedings in the case "State v. Abdul Ghani Ghuman and another" These proceedings under section 145 of the Criminal Procedure Code (hereinafter called the Code) are pending in the Court of a Magistrate First Class at Lahore.

2. The petitioner before me Mst. Asafa Sultana is the owner 4 building No. 26, Grain Market Badami Bagh, Lahore. The said building includes a shop which had been rented to Honest Traders through Mr. Abdul Majid Nizami who is described to be the sole proprietor of that concern. The petitioner filed an appli cation under section 13 of the West Pakistan Rent Restriction Ordinance, 1959, for ejectment of the tenant through her husband Malik Fazal Hussain, as her attorney. On 24th of July 1967. Malik Muhammad Iqbal, Rent Controller passed an order of ejectment against the tenant. The petitioner applied for execution of the ejectment order through her attorney on 27th of July 1967. The Bailiff went to the spot and reported on 29th of July 1967, that the shop had been locked. The Bailiff against went to the spot on 31st of July 1967, and found the tenant absent. He, however, proceeded to deliver possession. The report of the Bailiff shows that the goods belonging to the judgment‑debtor had been taken out and the possession of the shop had been delivered to Malik Fazal Hussain, the special attorney of the petitioner, by delivering the key of the lock to him, when Abdul Ghani Ghumman respondent No. 2 along with one Sakhawat came there and asked his companion to shoot at the Bailiff and the attorney of the petitioner. The Bailiff, however, succeeded in snatching the pistol which was produced before the police. Later on, a case was registered against Abdul Ghani Ghumman and Sakhawat under section 353 of the Pakistan Penal Code and section 13 of Act XX of 1965 for possession of an unlicensed revolver, but it was submitted at the bar that the case was cancelled and the Bailiff was ordered to the prosecuted for lodging a false report. It is further submitted that the goods which had been taken out of the shop were handed over to the attorney of the petitioner on sapurdari by the Bailiff, as the judgment debtor refused to accept them.

3. The shop according to the petitioner was rented out to one Muhammad Yousaf on 7th of August 1967. A perusal of the record shows that on 11th of August 1967, Abdul Ghani Ghumman made report No. 15 in Police Post Badami Bagh on the basis of which Muhammad Shafi A. S. I. went to the spot and after making enquiries initiated proceedings against the parties under section 107/ 150 of the Code. He also suggested than. proceedings under section 145 of the Code be also initiated against the parties. On this report, Mr. Muhammad Nawaz Inspector of Police Station Misri Shah submitted a report to the Ilaqa Magistrate that while the possession of the shop was with Mst. Asafa Sultana, its front portion i.e. the courtyard was in the possession of Abdul Ghani Ghumman and Sakhawat and there being an apprehension of breach of peace, proceedings under section 145 of the Code be taken.

4. Abdul Ghani Ghumman had also sought his remedy before the Rent Controller and had filed an application before him for restoration of the possession of the shop under rule 100 of Order XXI read with section 151 of the Civil Procedure Code. This matter is still pending. It is stated at the bar that Abdul Ghani Ghumman had offered that the matter be decided on the oath of Malik Fazal Hussain the attorney of the petitioner but then backed out. A revision petition is pending in the High Court asking for a direction that Abdul Ghani Ghumman be compelled to abide by the offer of oath.

5. The learned Magistrate by his order dated 30th of August 1967, after perusal of the record, summoned the parties for 9th of September 1967, and directed them to file their written statement. The petitioner then filed the present petition in this Court.

6. It has been submitted by Malik Shaukat Ali, the learned counsel for the petitioner, that the possession of the shop having been delivered to the attorney of the petitioner in due course of law by the order of the Rent Controller, it was not open to the police to initiate proceedings under section 145 of the Code. The learned counsel maintains that according to the report of the Bailiff the possession of the entire shop was delivered to the attorney of the petitioner and that position had been accepted by the Court concerned. It is submitted that even if the respondent claimed to be still in possession of a part of the shop, the proper course for him was to have resort to the Rent Controller himself and the remedy did not lie in initiating proceedings under section 145 of the Code.

7. A Rent Controller may not be a civil Court in the strict technical sense of the word as was held by the Supreme Court in Khadim Mohy‑ud‑Din and another v. Ch. Rehmat Ali Nagra and another (P L D 1965 S C 459) but he had the exclusive jurisdiction to determine the question of possession in this case. The decision of the Rent' Controller is executed by a civil Court as a decree under sec tion 17 of the West Pakistan Rent Restriction Ordinance. We can, therefore, safely assume that the petitioner was put in possession through a civil Court. A reading of sections 145 and 146 of the Code clearly indicates that the jurisdiction under these sections is a summary one and is meant to maintain status quo between the parties between whom the dispute about the possession of a property is likely to result in a breach of peace. An enquiry under subsection (1) of section 145 of the Code is to be initiated in respect of actual possession of a party. The Magistrate can put the party in possession under subsection (6) of the above section who shall continue in possession "until evicted in course of law" i.e. by the decision of a civil Court. Again, under ' proviso to subsection (2) of section 146 of the Code, the receive appointed by the Magistrate is to give way to the receiver appointed by a civil Court. The order of a Magistrate is meant to be only a temporary or tentative one and is to be operative so long as the rights of the parties are determined by a civil Court. It has been held in a number of cases that after the civil Court has given a decision about the right of a party to remain in possession of a property the proceedings under section 145 of the Code will be without jurisdiction. Reference in this connection may be made to Brahma Nath v. Sundar Nath (A I R 1919 All. 311) Imtiaz Ali Khan v. Shiekh Badruddin (A I R 1943 Oudh 410), Doulat Koer v. Ramshwari Koeri alias Dulin Sahiba (26 Cal. 625) and Jang Bahadur Singh v. Nazimul Haq and others (A I R 1947 Pat. 245). It was held in the last‑mentioned case that proceedings taken by a Magistrate under subsection (4) of section 145 of the Code within two months of the decision of the civil Court are highly improper and illegal. The petitioner before me had received possession on 31st of July 1967, and the learned Magistrate summoned the parties on 30th of August 1967, i.e. within a month of the execu tion of the order of the Rent Controller. The proceedings in my view were entirely misconceived and illegal.

8. The learned counsel for respondent No. 2 relied upon Dilbaz Khan v. The State and another (P L D 1959 Lah. 264) and submitted that the decision of a civil Court is no bar against initiation of proceed ings under section 145 of the Code. I am afraid this case does not lay down the broad proposition canvassed by the learned counsel. On the other hand, it was clearly held in the precedent case that the final determination of the legal rights of the parties rests with the civil Court and even when a property is attached or an official receiver is appointed by a civil Court, the jurisdiction of the criminal Court will be ousted. The learned counsel, however, laid emphasis on the observation of the learned Single Judge in that case which tends to lay down that the existence of an injunction or stay order is no bar to the initiation of proceed ings under section 145 of the Code and argued on this premises that even a final order was no bar to such proceedings. With greatest respect, I venture to dissent from the view expressed by the learned Single Judge in so far as it lays down that the existence of an injunction issued by a civil Court of competent jurisdiction will be no bar to the initiation of proceedings under section 145 of the Code. If this view is accepted, there will be clash of jurisdic tions which the Legislature never intended. It would means that an interim order duly issued by a competent civil Court who finds that a party has a prima facie right to possession can be nullified by the order of a Magistrate who takes cognizance of a police report made under section 145 of the Code. The law has prescribed E a different procedure for challenging the interim orders passed by a civil Courts and surely the Legislature never intended that the Magistrate should assume the powers of appellate or revisional tribunals vis‑a‑vis the civil Courts. It is true that the mere pend ency of a civil suit will be no bar to proceedings under section 145 of the Code but when a civil Court has regulated the possession by an interim order the jurisdiction of the Magistrate disappears by case of Mst. Makhana Davi v. Kamla Pat Ram (A I R 1935 Oudh 255) referred to by the learned Single Judge in the case of Dilbaz Khan does support the proposition that mere pendency of a civil suit is no bar to the jurisdiction of the Magistrate but it does not lay down that where an injunction has been issued by a civil Court the Magistrate will still have the jurisdiction. On the other hand, it was held in this very case that where a civil Court has appointed a Receiver during the pendency of proceedings under section 145 of the Code, the High Court should put a stop to these proceed ings by exercising its powers under section 561‑A of the Code.

9. A person who tries to interfere with an injunction issued be a civil Court can be dealt with for contempt of Court of under the provisions of Order XXXIX of the Civil Procedure Code or may by proceeded against under section 107/150 or 151 of the Code. The injunction of a civil Court unless it is set aside in due C course of law by an order in appeal or revision, will remain operative and the person in whose favour the injunction is granted has a prima facie right to remain in possession.

10. There is another reason for setting aside these proceed ings. The report submitted by the Inspector does not give the history of the case and there is no mention therein that Mst. Asafa Sultana had received possession of the shop in accordance with the orders of the Rent Controller. It is, therefore, doubtful as to whether or not the learned Magistrate was aware of the whole history of the case when he took cognizance of the matter and passed order summoning the parties to appear before him. Perhaps he would not have taken cognizance if the report of the Inspector had shown that the Rent Controller had given a decision in favour of Mst. Asafa Sultana and she had received possession in compliance with that decision. The proceedings are vitiated even on this account.

11. Sardar Sami Hayat, the learned counsel appearing for the State, submitted that the petitioner should have waited for the final conclusion of the proceedings and should have then moved the competent Court in revision. He argued that the provisions of section 561‑A of the Code are exceptional and are not meant to be used as a substitute for the provisions regarding revision existing in the Code.

12. The proposition of law as enunciated by the learned State counsel is correct but in a case where the attack is on the very jurisdiction of the Court and it is clear that the proceedings will amount to abuse of the process of Court, the petitioner has a right to approach the High Court at the very start and ask for quashing of the proceedings so that he is saved from the vicissitudes of a protracted litigation. The rights of Mst. Asafa Sultana in regard to the possession of the shop had been determined by a pronouncement of a competent civil forum and she was within her rights to come to this Court and ask that the Rent Controller's order should be maintained and that the criminal Court should not be permitted to enter into the question of possession which stood already determined.

13. As a consequence of the above discussion, this petition is allowed and the proceedings under section 145 of the Code against the petitioner are quashed. Petition allowed.