1976 P Cr (PLP)

2. It is the case of the respondent Abdul Hadi that during the subsistence of this lease a sale agreement dated the 4th of September 1971 was executed by the applicant in favour of the lessees and some others who were minors. This agreement has been produced, and shows that the execution of the proper sale deed depended on the decision of the appeal pending in the supreme Court but in case the applicant did not get the marketable title by the end of Kharif 1973‑74, then the respondent and others would continue with the possession of the land as lessees thereof upon the terms stipulated. According to him the Supreme Court remanded the case of the applicant Wajid Ali Khan but the applicant continued to remain in possession of the land for self and also on behalf of the lessees. In the events that followed, the applicant refused to perform his part of the contract and respondent Abdul Hadi filed a suit for specific per formance of the same against him. He obtained an injunction restraining the applicant from interfering with the possession of the land, On 27‑8‑74 the Civil Court however rejected the plaint on a technical ground, and with that the injunction also came an end. The respondent No. 1 therefore filed an appeal against this order which appeal was admitted but an interim order directing the applicant Muhammad Wajid Ali Khan to maintain status quo could be passed by the Court of appeal only on 5‑9‑1974. It appears that the relations between the respondent No. I and the hurls who cultivated the above land were not cordial and on 20‑7‑74 i.e., before the rejection of the plaint, Faiz Muhammad son of Haji Khan Muhammad Munshi of respondent No. 1, moved an application before the Mukhtiarkar and the Tenancy Tribunal, asking for ejectment of some of the harts as they were not working properly. The harts also made some applications against the respondent No. 1, and consequently an enquiry on the spot was held by the Mukhtiarkar and Tenancy Tribunal. By order dated 17th September 1974, the Tribunal rejected the application of Faiz Muhammad and directed that the haris who were in cultivating possession of the land should continue as such in the land. On 5-10-1974, i.e. a month after status quo order passed by the Additional District Judge, Hyderabad, the allegation is, that the applicant and the respondents 3 to 30, the haris, attacked the otaq of the respondent No. 1 on the land and threatened Munshi Faiz Muhammad and others to vacate the possession of the laud or there would be bloodshed. Can being informed about the incident the respondent Abdul Hadi moved his application for action under section 145, Cr. P. C.

3. The learned counsel for the applicant, argued that the applicant was in legal possession of the land through the haris, and if after the lease period he had not been able to enter into actual physical possession, that was on account of the operation of the injunction issued by the Civil Court which was in force till 27‑8‑1974. In any case the harts who were admittedly in actual physical possession of the land did not admit the possession of the respondent No. 1, as is clear from the order passed by the Mukhtiarkar and Tenancy Tribunal and that the lease period having already expired the possession had in law reverted to the applicant as soon as the injunction was vacated. He was therefore legally holding the possession and the order to maintain status quo passed by the Additional District Judge would support trim in continuing his possession through the harts. The order was addressed to the applicant, directing him to maintain status quo, and the learned counsel was specifically asked whether the applicant had in fact taken physical possession by entering upon the land at any time, but his reply was that possession was claimed by him only through the harts. With this factual background the main contention of the learned counsel for the applicant was that toe institution of proceedings under section 145, Cr. P. C. and appointing a Receiver after attaching the crops, was not warranted by late as the order of status quo, passed by the Additional District Judge, Hyderabad, on 27‑8‑74 was already holding the field and had the effect of regulating the possession of the land. ' In support of his contention, the learned counsel relied on the case of Shah Muhammad v. Haq Nawaz (P L D 1970 S C 470) where their Lordships while considering the scope of proceedings under section 145, Cr. P. C. were pleased to observe: "The proceedings initiated under section 145, Cr. P. C. are subordinate to a decree or order passed by a civil Court in respect of the property in dispute before the Magistrate. 'The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land' or water. These proceedings though concerning the subject‑matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court. The orders passed by a Magistrate for attachment of the subject‑matter of dispute are therefore oh a transitory nature. That is why a Magistrate will not appoint receiver if the property in dispute is already in the possession of a civil Count through a receiver appointed by it and the receiver appointed by a Magistrate must hand over possession to the receiver appointed by a civil Court subsequently. Section 145, therefore proceeds on the premises that the Magistrate will cease to deal with the possession of `land' or 'water' in dispute before him as soon as a civil Court is seized with the dispute and has passed an order regulating possession of the subject‑matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107, and 151, Cr. P. C., and bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo." Obviously, the contention based on the proposition of law, gets full support from this case but respondent No. 1 states that this case is to be distinguished on facts. It is the respondent Abdul Hadi who had filed the suit in which the status quo order has been passed by the Additional District Judge and it is he again who has filed the 145‑Cr. P. C. proceedings. The applicant cannot be allowed to take benefit of an order which is directed against him. Secondly, the suit is between him and the applicant while the 145 proceedings are also against the respondents 3 to 30, who are the harts, and the applicant has been joined therein as he relied on their support and wanted to take possession by force with their help. The parties in the suit and the criminal proceedings are therefore not the same. He referred to cases in which it has been laid down that the order of the criminal Court supersedes the order of the Criminal Court and. showed that primarily, the parties in both are the same. The learned counsel himself relied on case of Shah Muhammad v. Haq Nawaz, which is followed in the case of Imdad Khan and others v. Syed Muhammad Ilyas (1971 S C M R 581), and stated that they dealt with cases in which both the civil and criminal proceedings were between the same parties. According to the learned counsel, reference to the terms 'parties', 'contending parties' and 'dispute' in these cases, all refer to the parties who are common both to the civil as well as criminal cases.

4. The submissions of the learned counsel have any amount of force and are supported by the facts of the case stated already. The concluding paragraph of the judgment in Shah Mohd. v. Haq Nawaz is as under:‑ "In the present case she appellant has filed a suit in a civil Court on 12th September 1969, against the respondent for a declaration that hr was a. tenant of the disputed property for grant of permanent injunction restraining the respondent from interfering with his posses sion, ad interim injunction was granted by the Court on the 13th September 19r.9 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 Magistrate, Gujranwala, on the lab 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." This shows that the parties in both the civil and the criminal Courts were the same and the effect of the orders passed by the civil Court was to keep the possession of the plaintiff undisturbed, which effect was being destroyed by the criminal Court, by passing an order at the instance of the other party.

5. A similar question had come up for examination in the case of Shah Nawaz and others v. S. D. M., Naushahro Feroze and others (P L D 1974 Kar. 12). In that case in a suit filed by Shah Nawaz and others against one Badruddin District Magistrate, Nawabshah, Assistant Commissioner, Naushahro Feroze and Mukhtiarkar Kandiaro, an interim order for maintaining status quo was passed on 10‑2‑1971. The subject‑matter of this suit was possession of land on 21‑8‑71, the S. D. M. Naushero Feroze, took action on the allegation that there was dispute of the crop between two parties. It was contended that this order was competent in spite of the order of the status quo passed by the civil Court earlier as that order was directed only against respondent Budruddin. The learned Single Judge who decided the matter, on a close examination of the facts concluded that:‑ It would thus appear that the impugned order has been issued by the same officer who is a defendant in the suit filed by applicant Shah Nawaz. Although the order for maintenance of status quo is only against respondent Badruddin, it may be pointed out that he is one of the main parties to the dispute and even according to the report of S.H.O. Kandiaro, Badruddin is being baked in the dispute with his father, Shah Nawaz by his maternal uncle, respondent Sirajul Haq. It further appears that respondent Aijaz Ali and Illahi Bux are brothers of respondent Sirajul Haq while respondent Haji Ghulam Mohammad is their father. The main parties to the section 145, Cr. P. C. proceedings thus appear to be the same as in the civil suit and even in the order for maintenance of status quo." In the present case, however, respondents Nos. 3 to 30 who are the harts of the land must have their claim to possession, independently of the applicant and it cannot be said that an order of status quo passed by the civil Court and directed against the applicant is binding on them. They are not party to the civil proceedings hence criminal proceedings under section 145, Cr. P. C. against them cannot be said to be invalid on that ground. There may be other possible reasons for holding the proceedings to be bad as against them, but they are not contesting this matter and have chosen to remain absent in spite of service, and no such arguments are raised before me. On the other hand, the orders of the criminal Court do not seem to have the effect of destroying or coming is to conflict with the order of status quo passed by the Civil Court. The status quo order is to be interpreted as a direction to the applicant to keep undisturbed the possession of the respondent No. 1 who had approached the civil Court. The order of the criminal Court also has the same effect and is passed on the request of the respondent No. 1, who has the status quo in the favour. The applicant who does not claim to be in physical possession of the land otherwise than through the respondents 3 to 30, cannot be allowed to claim the protection of the status quo order, the violation of which has made the respondent No. 1 to rush to the criminal Court for taking immediate measures. If true, this allegation can also make the applicant liable for breach of the orders of the civil Court or even for contempt. But this is not a case where it could be said that the orders of the criminal Court are not. subservient to the order already passed by the civil Court.

6. The learned counsel for the applicant next contended that the criminal Court had no power to appoint a receiver, as it has done, under section 145 (4), Cr. P. C. According to him that power could be exercised only after the conclusion of the enquiry and not before. It has been held by my learned brother Z. A. Channa, J., in the case Shah Nawaz and others v. Sub‑Divisional Magistrate, Naushahro Feroze that a Magistrate ordering attachment of agricultural produce under section 1.45 (4), Cr. P. C. may appoint a person to look after and manage the property so attached and such a person although not a receiver, technically speaking, may have been described as such by the Magistrate, but the order itself would not be rendered invalid on that account. It is clear that 145 (4) contemplates attachment of property and in that event it is but natural that somebody will have to be appointed to be incharge of that property. Such a person is not a receiver in the same sense as the term is used in the Civil Procedure B Code or even under section 146, Cr. P. Code. But it is obvious that this mis-description of a person so appointed would not. invalidate order of appointing a person to manage the attached property.

7. Quite lengthy arguments were advanced in this matter by both the parties on the question of possession on the date of commencement of the 145, Cr. P. C. proceedings. The applicant claimed to have possession through the harts i.e. respondents Nos. 3 to 30 who had supported him before the Mukhtiarkar and Tenancy Tribunal. The respondent No. 1, however, claimed that he at no time had parted with actual possession of the land. However, for the purpose of disposing of this application. I think, it is trot necessary to examine all these arguments a!l the question of validity of proceedings does not depend on these submissions. The question of actual physical possession shall of necessity have to be considered and decided by the criminal Court before which the proceedings have been initiated, and all the evidence documentary or otherwise would be produced before that Court. In fact the criminal Court has by its order directed the Nazir not to disturb the harts. What I am concerned with, in the present application is only the legality of the orders referred to already, and as I have discussed above they do not seem to violate the directions of the civil Court. In these circumstances, I think that there would be nothing wrong or illegal in the respondent No. 1 having approached the criminal Court to come to his rescue if the dispute is raised by persons who are not parties in the civil proceedings or by some who are themselves alleged to commit a breach of the civil Court orders. The criminal Court is very much concerned in the case of a likely occurrence of a breach of the peace. Upon the facts stated, it is also not unlikely that the applicant is merely using the respondents 3 to 30 who are the haris on the land who seem to be supporting him rather than the respondent No.

1. In any case, as things stand, the dispute between the respondents 3 to 30 and respondent No. 1 is also an admitted fact and the legality of proceedings as against them is not challenged. However, the applicant cannot be allowed to take advantage of an order of the civil Court to shut out a remedy which the law has provided to the respondent No. 2, particularly when the order of the Civil Court itself was sought by the respondent No. 1 himself and is in his favour.

8. For the above reasons, I do not find that in the circumstances of this case the order of the civil Court can be used as a bar to the initiation of proceedings under section 145, Cr. P. C. and this application for quashment is, therefore, rejected. Petition rejected.