2013 P Cr (PLP)

SARDAR MUHAMMAD SADIQ KHAN, J.

The captioned appeal with the leave of the Court is addressed against the judgment of the High Court dated 11-5-2012 whereby the Criminal Revision filed by the respondents, herein, has been accepted.

2. The summary of facts, necessary for disposal of the criminal appeal is that Dr. Karamat Hussain, appellant, herein filed a declaratory suit in the Court of Senior Civil Judge, Mirpur on 10-7-2009 which was withdrawn on 22-3-2009 and then a fresh suit for declaration-cum-perpetual injunction was instituted by the appellant, herein, on 22-8-2009. Along with the above-mentioned suit an application for ad interim injunction was also moved and the trial Court issued stay order on 22-8-2009 till next date of hearing subject to objections from the other side. It is averred, that Shamus-u-Din respondent, herein who is defendant in the above suit, appeared before the trial Court and filed an application for vacation of stay order. After hearing the arguments, the learned trial Court vacated the stay order on 12-9-2009. The appellant filed an appeal before the District Judge, Mirpur through which he challenged the vires of the order of the trial Court dated 12-9-2009, which was dismissed by the District Judge vide order dated 17-10-2009. The appellant filed a revision petition before the High Court on 21-10-2009, which was accepted and the learned District Judge Mirpur was directed to appoint commission for spot inspection and then decide the case afresh vide order dated 26-12-2009. The learned District Judge appointed Civil Judge, Mirpur as a commission in the light of the order of the learned High Court and the Civil Judge made spot inspection in presence of the counsel for the parties and parties themselves and submitted report to the learned District Judge. The learned District Judge, after hearing arguments dismissed the appeal filed by the appellant, herein vide order dated 11-5-2010. Feeling dissatisfied, the appellant, again filed a revision petition along with an application for stay order before the High Court on 25-5-2010. On the application for interim relief, status quo order also issued on the even date. Feeling aggrieved, respondent No.1 filed a petition for leave to appeal before this Court, This Court vide order dated 12-7-2010, suspended the order of the High Court dated 25-5-2010. However, during the pendency of the above litigation before the Civil Court, the appellant moved an application for removal of construction made by respondent No.1 on disputed land before the District Magistrate, Mirpur. The said application was entertained by the District Magistrate and made over the same for initiating proceedings under section 133, Cr.P.C. to the Additional Deputy Commissioner (General) Mirpur vide order dated 5-3-2012. The Additional Deputy Commissioner (General), Mirpur initiated proceedings under section 133, Cr.P.C. The respondents challenged these proceedings through revision petition before the learned High Court and the learned High Court vide its order dated 11-5-2012 accepted the revision petition and quashed all the proceedings initiated under section 133, Cr.P.C. by the pro forma respondents, hence this criminal appeal by leave of the Court.

3. Mr. Muhammad Siddique Chaudhary, the learned counsel for the appellant, has argued that under law, there was no hindrance to initiate proceedings under section 133, Cr.P.C. by the District Magistrate but the Hon'ble High Court has arbitrarily, capriciously and in a fanciful manner, accepted the revision petition and quashed the proceedings. He further argued that a provisional order was passed by the Additional District Magistrate, Mirpur and the respondents were summoned but despite filing objections the respondents filed revision petition at the wrong forum for redressal of his grievance, whereas the revision petition should have been filed before the Sessions Judge instead of the High Court. It is further argued that the District Magistrate, and Additional District Magistrate Mirpur have unfettered powers under section 133, Cr.P.C. and they are not subordinate to Senior Civil Judge Mirpur, thus the proceedings initiated by the Additional District Magistrate have been quashed illegally by the learned High Court merely on conjectures and surmises, hence, the impugned judgment of the High Court is not sustainable. He lastly prayed that while accepting this appeal the judgment passed by the High Court dated 11-5-2012 may be set aside.

4. While controverting the arguments of the learned counsel for the appellant, Mr. Muhammad Reaz Alam, Advocate, the learned counsel for the respondents, forcefully defended the impugned judgment of the High Court dated 11-5-2012. He argued that the District Magistrate has failed to make a conditional order under section 133, Cr.P.C. while entrusting the file to Additional District Magistrate (G), which was mandatory and procedure adopted by the District Magistrate is unwarranted. He further argued that even after receiving the file, the procedure adopted by the Additional District Magistrate was illegal as the respondents appeared before the Additional District Magistrate and refuted the claim of the appellant but the Additional District Magistrate has failed to adopt the procedure under sections 137, 134, 139 -A, Cr.P.C. He next argued that two civil suits were pending at that time before the Court of Senior Civil Judge, Mirpur on behalf of the rival parties and stay order has also been issued by the Court for maintaining status quo. The application under section 133, Cr.P.C. was moved by the appellant with regard to the same subject-matter already agitated before the Civil Court by the appellant. The proceedings before civil and criminal Court cannot run side by side. The Civil Court is empowered to regulate such like matter as has rightly been held by this Court in numerous judgments, therefore, the learned Judge in the High Court has not committed any illegality or irregularity while passing the impugned judgment. He lastly prayed that while dismissing the appeal filed by the appellant, the impugned judgment of the High Court may be maintained.

5. We have heard the learned counsel for the parties and also perused the record made available. The appellant himself filed a declaratory-cum-perpetual injunction's suit in the Court of Senior Civil Judge Mirpur on 22-8-2009, which is, admittedly pending decision before the trial Court. The appellant also moved an application for ad interim injunction before the trial Court and got issued stay order in his favour subject to objections from the other side, till next date of hearing. The respondent, Shams-ud-Din filed application/objections in the trial Court for vacation of stay order. The learned Senior Civil Judge vacated the stay order on the ground of an undertaking furnished by the respondent vide order dated 12-9-2009. An appeal was filed by the appellant in the Court of District Judge, Mirpur against the order for vacation of status quo, which was dismissed vide order dated 17-11-2009. The appellant, against the order dated 17-10-2009, filed a revision petition before the High Court, which was accepted and while vacating the above order passed by the District Judge, the case was remanded to the District Judge for appointment of commission regarding spot inspection and thereafter decide the matter afresh vide order dated 26-12-2009. In compliance with the said order, the learned District Judge appointed Civil Judge Mirpur as commission and on the basis of report of the commission, the appeal filed by the appellant was dismissed through the order dated 11-5-2010. The appellant filed a revision petition before the High Court along with an application or ad interim injunction. The learned High Court while entertaining the application for interim injunction, granted stay order on 25-5-2010. This order was challenged by respondent No.1, through an appeal before this Court, which was accepted vide judgment dated 30-6-2012 and the case was remanded to the High Court for fresh order after hearing the counsel for the parties. The appellant, after remand of the case has withdrawn from the revision petition.

6. The controversial issue raised before the Additional Deputy Commissioner (General) regarding removal of encroachment upon road was sub judice before the Civil Court. The appellant moved an application for initiation of proceedings under section 133, Cr.P.C., before the Deputy Commissioner with regard to the same subject-matter which was already pending before the Civil Court. The Deputy Commissioner entrusted the application to Additional Deputy Commissioner (General). The respondent challenged the order of Deputy Commissioner in revision before the High Court. The learned High Court while accepting the revision petition filed by the respondent quashed all the proceedings initiated by the Deputy Commissioner under section 133, Cr.P.C. and directed the trial Court to decide the case within six months period. The appellant feeling aggrieved from the judgment of the High Court approached this Court in the present appeal. 6-A. The first question which needs determination by this Court is that whether the District Magistrate was competent under section 133, Cr.P.C. to proceed with the matter brought before it. The scheme and spirit of section 133, Cr.P.C. is very much clear on the point and the learned High Court has dived deep into the provision of this section and elaborated the same in its true perspective. For brevity the relevant paragraph of the judgment of the High Court is reproduced as under:-- "As dispute regarding encroachment upon road was sub judice before Civil Court, therefore, application moved by the private respondent before the learned District Magistrate Mirpur for initiating proceedings under section 133, Cr.P.C. was not maintainable. It is liable to be observed here that Civil Court after obtaining the documentary and oral evidence will be in better position to decide the controversial issue and regulate the same in accordance with law therefore, all the proceedings initiated by the official respondents on application of respondent No.1 were bad in law. It appears that the learned District Magistrate on receiving application of the private respondent passed an order for initiating proceedings under section 133, Cr.P.C. whereas no absolute order could legally be passed by the District Magistrate under the above section. Whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate 1st Class considers on receiving a police report or other information from any source to take action under section 133, Cr.P.C., he is required to make a conditional order for removal of a nuisance. The order must be conditional and not absolute one as section 133, Cr.P.C. itself speaks....." No doubt, the High Court has rightly appreciated the provisions of section 133, Cr.P.C. but the question arises that when the same matter is sub judice before Civil Court, the Magistrate can exercise the powers on any application brought before it under section 133, Cr.P.C. or not. Admittedly, the Magistrate can proceed with any application under section 133, Cr.P.C. but the proposition in this matter is totally different in the case in hand. In our considered view, it is an established principle that when the Civil Court of competent jurisdiction is proceeding with the matter, the Magistrate or any other judicial office holder is debarred from entertaining the same cause between the same parties.

7. It may be stated here that the appellant himself filed the suit for declaration-cum-perpetual injunction in the Civil Court whereas during pendency of the suit he has filed an application under section 133, Cr.P.C. before the District Magistrate. The appellant should have approached the Civil Court regarding removal of nuisance, if any, but has approached the District Magistrate for exercise of power which were available with the Civil Court where the lis was already sub judice. So far the powers of Magistrate regarding issuance of an order on the application under section 133, Cr.P.C. is concerned, we have no cavil with the argument of the counsel for the appellant that the Magistrate can issue such direction, but where the matter is pending before a Civil Court, the Magistrate cannot exercise its powers under section 133, Cr.P.C. with regard to such matter.

8. It appears from the interlocutory order dated 12-3-2011, that the Magistrate was aware of the fact that the matter is sub judice before the Civil Court as he himself mentioned in the order dated 12-3-2011, which is reproduced as under:-- It is astonishing to note that the Additional District Magistrate categorically mentioned in his order that the proceedings with regard to the subject-matter are already pending before the Civil Court and despite this he has passed a final order, which is against the norms of justice and settled principle of law. The proper course for Additional District Magistrate was to keep pending the proceedings till the matter is resolved by the Civil Court.

9. So far as the question that before entrusting the application filed by the appellant under section 133, Cr.P.C. to the additional District Magistrate, the District Magistrate should have passed a conditional order, does not appear to be relevant. If for the sake of argument, it is deemed that the District Magistrate should have passed a conditional order before entrusting the application to the Additional District Magistrate even then the question arises whether the Magistrate was competent to pass such order or not when the case was already sub judice in the Civil Court. In our considered opinion, when the matter was sub judice before the Civil Court, the Magistrate as not competent even to pass any conditional order, Therefore, entrustment of the application to the Additional District Magistrate does not raise any material question to be resolved by this Court. For the reasons stated above, finding no force in this appeal, the same is hereby dismissed. HBT/50/SC(AJ&K) Appeal dismissed.