2005 PLP 644 (YLR)

Mirza Muhammad Azam for Respondents Nos. 1 and

2. Through this writ petition, order, dated 9‑1‑2004 passed by learned Additional Sessions Judge, Bahawalnagar, whereby the aforesaid learned Judge had dismissed the criminal revision petition of the writ petitioners and had refused to set aside the order, dated 3‑11‑2003 passed by learned Special Judicial Magistrate, Bahawalnagar, has been challenged.

2. The facts as narrated by the learned counsel for the parties and depicted from the record, are that Allah Ditta, petitioner No. 1 had filed a suit for grant of permanent injunction, in which he had also filed an application for grant of temporary, injunction, upon which the learned Civil Judge, who was seized of the case, had passed an order on 22‑10‑2003. Through this order of status quo the possession and position at the site was maintained. On 27‑10‑2003, when allegedly possession of Allah Ditta, petitioner was interfered with, he approached the police of Police Station Saddar, Bahawalnagar, through an application, upon which F.I.R. No. 291 of 2003 was registered under sections 427/149, 337‑A(ii)/149, P.P.C. The S.H.O, after registration of this F.I.R. on 31-10‑2003 entered a report in Roznamcha and initiated proceedings under section 145, Cr.P.C. and the Special Judicial Magistrate, Bahawanagar on 3‑11‑2003 appointed Tehsildar, Bahawalnagar as a receiver for the disputed lands. Aggrieved from this order, dated 3‑11‑2003 passed by learned Special Judicial Magistrate, Bahawalnagar, a revision petition was filed by the petitioners before the learned Sessions Judge, which was entrusted to learned Additional Sessions Judge, Bahawalnagar, who dismissed the revision petition on 9‑1‑2004. Hence, this writ petition.

3. Learned counsel appearing on behalf of the writ petitioners submits that in the Civil Court the suit was pending, wherein possession of the land was being regulated through an order passed on 22‑10‑2003 for maintaining of status quo. In contravention of this order, S.H.O. instead of taking remedial steps, moved the learned Special Judicial Magistrate under section 145, Cr.P.C. for appointment of receiver and in this way the possession of the petitioner was got disturbed by the other party with the connivance of the police. As per learned counsel, when the civil suit was pending in the Civil Court then the proceedings under section 145, Cr.P.C. should not have been commenced by the S.H.O. and so permitted by the learned Special Judicial Magistrate. To support his contention, he has referred to PLD 1985 SC 240 (Mehr Muhammad Sarwar and others v. The State), 1993 MLD 374 Abdul Aziz v. S.H.O. and (1999 MLD 863) Rajaj Tallat Mahmood v. Assistant Commissioner City, Rawalpindi).

4. Opposing the arguments of the learned counsel for the writ petitioners, learned counsel for the respondents has replied that trouble was invited by the petitioners by moving the police‑for taking action for the registration of the case and as the circumstances were of such nature that it had required the prompt action and breach of peace was apprehended, therefore, action under section 145, Cr.P.C. was taken by the S.H.O. Learned counsel has further stated that respondent No.1 Muhammad Amin was bona fide purchaser for value and was in possession of the property in dispute. So, the proceedings initiated under section 145, Cr.P.C. were legal and justified.

5. I have considered the arguments of the learned counsel appearing on behalf of the parties and have perused the record of the case.

6. It is an admitted position that the suit had been filed by Allah Ditta, petitioner prior to the initiation of the proceedings under section 145, Cr.P.C. and order regulating possession of the parties was also passed by the learned Civil Judge, therefore, if any dispute had arisen with regard to the possession or dispossession of the property in dispute that could be resolved through moving the learned Civil Judge by an application inviting his attention to the matter in dispute and getting/obtaining the proper orders from that Court. The commencement of proceedings under section 145, Cr.P.C. was a mala fide move on the part of the S.H.O. as to disrupt the orders of the Civil Court. It is settled law that when the Civil Court is seized of the matter and had passed an order with regard to the possession, it has to be given free hand to regulate the possession or to pass any appropriate order in accordance with the circumstances of the case. No other authority has got any power to interfere into the jurisdiction of the Civil Court through this mechanism. Citations referred to by the learned counsel for the petitioners have also laid down this law on the subject. Therefore, the proceedings initiated under section 145, Cr.P.C. and the subsequent orders are declared illegal and without lawful authority. Consequently, the matter shall be referred to the learned Civil Judge, who shall pass an appropriate order with regard to the property in dispute. With this observation/direction, the writ petition is disposed of. Petition allowed accordingly. H.B.T./A‑330/L