1987 P Cr (PLP)

I have heard Mr. Naraindas, Advocate for the applicant, Mr. M. Aziz Malik, Advocate for the respondents and Mr. M.A.I. Qarni, Advocate for the State and have also gone through the documents produced by the parties. It was contended by Mr. Naraindas that the order passed by the learned S.D.M. was legal and valid, and there was no reason for the learned Sessions Judge to interfere with the said order. That the applicant was the owner of the premises in dispute. That the passing of preliminary order under subsection (1) of section 145, Cr.P.C. was not mandatory. In this connection he has relied upon P L D 1960 Pesh.

47. Mr. M. Aziz Malik appearing for the private respondents has contended that the order passed by S.D.M. under subsection (4) of section 145, Cr.P.C. was passed in contravention of provisions of law. That since the period of more than two months had expired before the order a/s 145(1), Cr.P.C. was passed, the S.D.M. had to put the respondent No.1 in possession. That the order could not be passed without holding proper enquiry and merely because the respondents were absent on the date of hearing the learned S.D.M. could not decide against them. The learned S.D.M. ought to have decided as to who was in actual possession at the relevant time. In this connection he has relied upon 1974 S C M R 330, A I R 1942 Sind 117 and P L D 1964 Lah.9. Mr. M.A.I. Qarni learned counsel appearing for the State has supported the order of the learned S.D.M. on the ground that the present applicant had moved the police within two months from dispossession. I have considered the contentions of the learned counsel, and have also gone through the documents produced by them including the orders passed by the S.D.M. and the learned Sessions Judge. It is the case of the applicant that he was dispossessed on 15‑10‑1985, that he lodged report with the police on 16‑10‑1985, and the order under section 145 subsection (1), Cr.P.C. was passed on 26‑12‑1985. In order to appreciate the legal position it is necessary to have a look at the provisions of subsections (4) and (5) of section 145, Cr.P.C. Section 145(4) and (5) Cr.P.C. reads as under:‑ "145(4). Inquiry as to possession:‑‑The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and if possible, decide whether any or which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has 'within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under subsection (1) shall be final. " A bare reading of subsection (4) of section 145 Cr.P.C. will show that it was necessary to hold an enquiry with regard to possession, and that if it was shown by the applicant that he was dispossessed within 2 months of the date of passing of order under section 145(1), Cr.P.C. then the possession could be restored to him. In the present case admittedly the applicant was not in possession within 2 months next from the date of order passed under subsection (1) of section 145 Cr.P.C. therefore, the order restoring possession to him was clearly in violation of the above provision of law. P L D 1960 Pesh. 47 relied upon by the learned counsel for the applicant has no relevancy to the facts of the present cam inasmuch as it only speaks that failure to record preliminary order does not invalidate proceedings, and defect if any is curable under section 145 Cr.P.C. On the other hand the learned counsel appearing for the private respondents has relied upon the case of Ghulam Mustafa v. Abdul Karim and others P L D 1964 Lah. 9 in which it was held that in proceedings under section 145 Cr.P.C. the court has to see as to who. was in possession and has nothing to do with the title of the parties. It was not open to the Magistrate to determine whether possession was founded on title. He had merely to decide as to who was in possession. Two months in section 145 subsection (4) Cr.P.C. mean two months from the date of preliminary order under subsection (1) of section 145, Cr.P.C. and not two months from the date of the complaint. The order passed by the S.D.M. was erroneous and the learned Sessions Judge was right in interfering with the same on various' grounds; firstly, in spite of the fact that the private respondents had remained absent on 27‑4‑1986, the S.D.M. had to hold an enquiry with regard to possession and he could not decide the matter ex parte. Secondly, the S.D.M. could not drop proceedings under Section 145(4) Cr.P.C., but if he was satisfied that no such dispute existed in such a case he could cancel his order passed under subsection (1) of Section 145, Cr.P.C. and stay all such proceedings under subsection (5) of Section 145, Cr. P.C. Thirdly, the S.D.M. had to restore possession to the party from whom it was taken at the time of passing attachment order until that party was evicted therefrom in due course of law. In this connection I will refer to a case of Mohammad Shafiq and others v. Abdul Hayee and others 1987 SCMR 1371 in which it was held by their Lordships of the Supreme Court that "notwithstanding the filing of the application within two months of dispossession if such dispossession not within two months of the order passed by the Magistrate under subsection (1) of Section 145, Cr.P.C. restoration of possession cannot be ordered and order to the contrary would not be in accordance to the provisions of the Code. " In view of the above discussion the order passed by the S.D.M. was unwarranted and illegal, and the learned Sessions Judge was justified in interfering with the said order to correct the obvious legal error committed by the S.D.M . There are no reasons to interfere with the order passed by the learned Sessions Judge, the above application is, therefore, dismissed. K.B.A. / A‑132/ K Application dismissed