P L D 1965 (W (PLP)

This is a reference under section 438, Cr. P. C. by Mr. Hamidali Memon, Additional Sessions Judge, Karachi, recommending that an order be passed staying the proceedings of the criminal case subject to the expeditious disposal of the Civil Suit.

2. The facts material for the consideration of this reference are these: Messrs General Iron & Steel Works Ltd., the tenants of the plot bearing No. D/22 situated in the Sind Industrial Trading Estate Area, Karachi, who carry on the business of steel rolling and foundary, complained that though they were entitled to the supply of water by the S. I. T. E. for which they had already paid, the accused who are the officers of the S. I. T. E. illegally stopped it on the 7th of April 1962; and that their application for the restoration of water supply was rejected. The company then filed a Civil Suit (No. 295/62) in the Court of the VI Civil Judge, First Class, Karachi on 26th May 1962 praying for "a mandatory injunction to compel the defendants to restore their water supply and not to discontinue the same in future". This prayer was made upon the allegation that the company was entitled to the water supply from the defendants S. I. T. E. Ltd. The cause of action is stated to be the discontinuance of the water supply. The learned Civil Judge refused the interim in junction prayed for by the company by his order dated .8‑9‑62 but in the meantime the company through its manager Sheikh Muhammad Yusuf filed a complaint in the Court of Mr. M. Junaid, A. C. M., Karachi on 24th August 1962. This complaint was under section 425/430, P. P. C. and it is stated in para. 11 thereof that the accused on 7th April 1962, unlawfully and with the intention of causing wrongful loss to the Company committed mischief by illegally cutting off the water supply to the company's factory. Process was issued upon this complaint and when the accused appeared an application was made on their behalf under section 344, Cr. P. C. praying for the stay of the criminal case pending the disposal of the civil suit mentioned above. It was stated in the application that the civil suit had been instituted earlier, that is on 26‑5‑62 and the question for decision in the suit as well as in the complaint was the same and that this complaint had been filed to coerce the S. I. T. E. Ltd. into a compromise on terms favourable to the complainant. The learned Magistrate rejected this application on the ground that there was no bar for the criminal Court to proceed with the case. This order was passed on 23‑11‑62, whereupon the accused approached the Court of the Sessions Judge, Karachi under section 435, Cr. P. C. and the matter having been beard by the learned Additional Sessions Judge, Mr. Hamidali Memon, the latter made a recommendation that the aforesaid order of the Magistrate be set aside and the proceedings in the criminal Court be stayed upon a condition that the civil suit is expeditiously disposed of.

3. I have heard Mr. Samad Khan, the learned counsel for the S. I. T. E., in support of the reference and Mr. Anis Yusuf for the complainant‑respondents and Mr. Haleem, the learned Assistant Advocate‑General for the State. Mr. Anis Yusuf drew my attention to the fact that the order of the Civil Judge rejecting the application for the grant of the interim injunction had been set aside by the Additional District Judge in appeal who had granted the injunction. He also attempted to argue upon the merits of the case in order to show that his client had been shabbily treated by the officers of the S. I. T. E. He also argued that is was not a rule of law that the trial of the same subject matter in a civil Court should necessarily result in the holding up of the criminal proceedings. Mr. Haleem presented a neat argument and it was this, that in so far as the judgment of the civil Court in this matter will not be relevant for the purposes of the criminal case pending before the learned A. C. M., no useful purpose would be served by the stay of the criminal case in which the learned Magistrate must be allowed to reach his own conclusion upon the evidence which may be led before him. In support of his contention he cited a Full Bench judgment of the Lahore High Court in the case of B. N. Kashyap v. Emperor (A I R. 1945 Lah. 23) and a judgment of Kaikaus, J., as he then was, in the case of Mst. Muni v. Habib Khan (P L D 1956 Lah, 403).

4. In the Full Bench case of the Lahore High Court a report had been made on 26th December 1942 to the Police by one Mr. Yog Raj Puri accusing Mr. B. N. Kashyap of offences under sections 409 and 407 P. P. C. upon the ground that Mr. Kashyap, who was his confidential friend, had misappropriated the sum of Rs. 28,000 upon cheques drawn by Mr. Puri. On 7th June 1943 Mr. Kashyap brought a civil suit against Mr. Puri for rendition of accounts alleging that Mr. Puri had acted as his agent in the matter of sale and purchase of goods and had failed to give him proper accounts. An application was then made by Mr. Kashyap in the Court of the Magistrate having cognizance of the criminal proceedings asking for its quashment or stay. This application having been rejected he approached the High Court. The petition came up before a Single Judge who referred it to a Division Bench and the latter in their turn referred the question to a Full Bench in view of the conflict of judicial opinion on the point. The question which was referred to the Full Bench was: "When there are concurrent proceedings covering the same ground before a criminal Court and a civil Court, the parties being substantially the same, would be judgment of the civil Court, if obtained first, be admissible in evidence before the criminal Court in proof or disproof of the fact on which the prosecution is based?" The opinion of the Full Bench was written by Rehman, J. with whom the other two Judges agreed. It was held by the learned Judge with reference to sections 40, 41, 42 and 43 of the Evidence Act that the judgment in the civil Court in the case before them would be irrelevant unless its existence as a fact was in issue. The learned Judge, however, admitted that it would have been a good thing to avoid conflict of opinion between the two Courts, but in the absence of any provision to that effect in the Evidence Act he could not see how could this be avoided as long as it was possible for two independent Judges to come to two different findings on the same evidence. The reference was accord ingly answered in the negative.

5. In the next case relied upon by Mr. Haleem, one Mst. Muni had filed a suit for declaration that her marriage with the defendant performed during her minority had come, to an end by her repudiation on attainment of puberty. Within a few days of the filing of the suit the defendant filed a complaint under section 498, P. P. C. against one Mst. Chutti, the mother of Mst. Muni and her brothers. An application was then made by Mst. Muni for the stay of the proceedings in the criminal Court. It may be noted that she herself was not an accused in the criminal Court. The learned Judge held that the proceedings in the civil Court could not have any effect upon the criminal proceedings, for, so far as the decree for dissolution was con cerned it terminated the marriage on the date of decree and so far as the decree as to non‑existence of marriage was concerned it was not a judgment in rem. It was, therefore, held that there was no good ground for the stay of criminal proceedings.

6. I am in respectful agreement with the ratio in the two judgments referred to above, namely that the judgments of the civil Court except for matters referred to in sections 40, 41 and 42 of the Evidence Act are irrelevant unless their existence is a fact in issued, or unless they are relevant under some other provisions of the Act. It follows that the judgment in a civil suit and the findings therein are not binding on the criminal Court. But if I may point out with great respect, that is not the only consideration which arises when an application is made before a criminal Court for the stay of the proceedings pending the decision of a civil suit involving the same subject‑matter. When such an application is made, the party is not asking for the dismissal of the complaint or for the termination of the criminal proceedings. All that is asked for and which is permis sible under section 344, Cr. P. C. is a postponement of the proceedings and the question that arises is whether there is a reasonable ground for it. If such a ground is made out it is within the power of the Court to postpone the proceedings. I agree, if I may say so, that merely because a civil suit has been instituted upon the same subject‑matter that by itself is not necessarily a good ground for the postponement of the criminal proceedings. Sometimes such suits are filed with the ulterior purpose of delaying or obstructing the criminal case. If that is so the Court may refuse stay. In another case the offence com plained may be of such a serious character that the Court may justly take the stand that it must go on with it and decide it regardless of the pendency of a civil suit or the decision thereof. But I do not think that it can be laid down as a general rule that whenever an application is made for the postponement of a criminal proceeding upon the ground that the subject‑matter is before a civil Court the criminal Court must necessarily reject that prayer upon the sole ground that the judgment of the civil Court will not be binding on it. Neither the answer by the Full Bench to the reference made to them, nor the judgment of Kaikaus, J. in the cases mentioned above lay down this proposition. The criminal Court is empowered under section 344 to adjourn the inquiry or trial upon a reasonable ground. Therefore when an application for adjournment upon the ground of the pendency of the civil suit upon the same subject‑matter is made, the question which falls for consideration is whether it constitutes a reasonable ground. That, in my opinion, must be decided upon the facts of each case. The postponement of the proceedings is not a rule of law but a rule of prudence and in doing so the Court is guided by considerations of public interests. The interest of the complainant need not necessarily be the public interest. No hard and fast rule can be laid down. The decision must depend upon the nature of the case, the bona fides of the party moving the applica tion for stay, the conduct of the complainant and his motive in so far as it can be ascertained, the desirability of avoiding long drawn out disputes of civil nature in two Court side by side in competition with each other and similar other considerations. It is true that the decision of the civil Court would not bind the criminal Court but it may well be that when the parties have obtained an authoritative decision of the civil Court, they themselves might not like to press the matter further in the criminal Court. One of the considerations which has often weighed with the Court, though not decisive, is whether the criminal case had been instituted by the State or by a private party.

7. A Division Bench of the Bombay High Court consisting of Beumont, C. J. and Wassoodew, J. in the case of Thakorlal Vadilal v. Ambalal B. Patel (A I R 1952 Bom. 330) held that: "In dealing with an application for stay of criminal proceed ings pending a civil suit between the parties, the Court should consider where the public interest lies, and not merely where the supposed interest of the particular complainant lies. The interest of the public is opposed to multiplicity of proceedings. The Court should not regard the matter as a sort of competition between the civil and criminal Courts." In this case a criminal complaint had been filed during the pendency of the civil suit between the parties alleging criminal trespass and wrongful restraint of a portion of suit property by one of the parties to the suit.

8. A Division Bench of the Calcutta High Court consisting of Sir Lawrence Jenkins, C. J. and Sir John Woodroffs, J. in the case of J. M. Lucas v. Official Assignee of Bengal (56 I C 577) held that "though no invariable rule can be laid down, it is ordinarily undesirable to institute criminal proceedings until the determination of civil proceedings in which the same issues are involved. Criminal proceedings lend themselves to the unscru pulous application of improper pressure with a view to influencing the course of the civil proceedings, and beyond that there is the mischief of criminal proceedings being instituted with an imperfect application of the facts where they have not been ascertained in the more searching investigation of a civil Court."

9. I have said enough to indicate what may be the considera tions which may guide the Court before whom an application for the postponement of the criminal proceedings are made. I repeat, if I may, that the question must be decided with reference to the facts of each case. Now, in the present case, the complainant itself had first filed a civil suit and had applied for the grant of an interim injunction. It appears that after the hearing of the application but before its decision by the civil Judge the company instituted this complaint alleging that the accused had committed mischief. That suit is still pending. The main question to be decided in both the cases would be whether the company (tenant) was entitled to the supply of water. Inasmuch as it had itself taken the matter first to the civil Court and also having regard to the nature of the dispute, in my opinion it was a fit case in which the learned Magistrate should have postponed the criminal proceedings.

10. I, therefore, accept the reference, set aside the order of the learned Magistrate dated 23‑11‑62 and direct that the criminal case shall stand adjourned for a reasonable time to enable the parties to obtain a decision from the civil Court. I order accordingly. K.B.A. Reference accepted.