Smt. Ram Devi vs State Of U.P. And Anr.
2018 Latest Caselaw 3454 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								A.F.R.
 

 
Case :- APPLICATION U/S 482 No. - 26661 of 2018
 

 
Applicant :- Smt. Ram Devi
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Pradeep Chauhan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. This Application under Section 482 Cr.P.C. is directed against an order of Sri Ram Krishna Gautam, learned Sessions Judge, Kanpur Nagar dated 07.07.2018 allowing Criminal Revision no.115 of 2018 and setting aside an order of Sri Sanjay Kumar, the Sub-Divisional Magistrate, Sadar, Kanpur Nagar, dated 19.04.2018 passed in Case no. T201803410106638, Ram Devi vs. Ram Kumari and others, under Section 145/146 Cr.P.C., Police Station Vidhnu, District Kanpur Nagar, whereby the Magistrate has ordered the property, subject matter of proceedings, in the case aforesaid, under Section 145 Cr.P.C., to be attached under Section 146(1) Cr.P.C. pending decision of proceedings.

2. Heard Sri Pradeep Chauhan, learned counsel for the applicant and Sri M.P. Singh Gaur, learned AGA appearing on behalf of the State.

3. The dispute in the present proceedings appears to be between two purchasers of the same plots of agricultural land, one purchasing it from the sole heir of the original tenure holder, one Manna, since deceased, in his male line of descent, a woman called Rama Kanti, and, the other purchasing it from the heirs of the original tenure holder aforesaid, sons and daughters, and, grand children, number ten, but all in the female line of descent. The applicant is the purchaser from owners representing the female line of descent as aforesaid, through registered sale deed dated 19.06.2015, and, claims possession on its basis, whereas opposite party no.2 claims on the basis of a registered sale deed dated 03.05.2012 executed by Rama Kanti, representing the male line of descent, asserting title and possession to the said land on its basis, rivally to the applicant.

4. The applicant claiming possession over the land in dispute since the date of execution of the registered sale deed dated 19.06.2015 in her favour, including mutation on its basis in the revenue records, moved the Sub-Divisional Magistrate, Sadar, Kanpur Nagar, through an application dated 01.07.2017 with allegations that opposite party no.2, her husband and sons are forcibly attempting to grab the land in dispute, of which they are in lawful possession. It was prayed that appropriate action may be taken, restraining the said opposite party from interfering in the applicant's peaceful possession, except in accordance with law, forthwith. The precise prayer in the application made to the Sub-Divisional Magistrate by the applicant is quoted (in Hindi vernacular):

"vr% Jheku th ls izkFkuk gS fd Fkkuk/;{k fc/kuw dks vknsf'kr dj ds izkfFkZuh dh mijksDr vkjkth ij izfroknhx.kksa dks xSj dkuwuh 5. The said application was registered by the Sub-Divisional Magistrate as Case no. T201803410106638, under Section 145 Cr.P.C., and, a report was called for from the Police Station Vidhnu. The police, in response, submitted a report dated 22.08.2017, supported by documents, reporting amongst others, that a case was pending on the issue in court as the opposite party, Ram Kumari asserts her right to the said land with cultivatory possession; whereas the applicant, on the basis of her sale deed, is attempting to till and cultivate the said land, the second opposite party is also attempting to do the same, leading to a dispute between them. It was recommended that the land in dispute be proceeded with under Section 145 Cr.P.C., and, with a recommendation that the same may be attached.

6. It appears that the Magistrate issued notice to both sides, permitted them to file their written statement, and, produce evidence in support of their respective claims to possession of the property in dispute on the date of issue of the preliminary order under Section 145(1) Cr.P.C., or within two months prior to the said date. He heard parties and passed an order of attachment and Supurdagi, that does not at all appear to be an interlocutory order envisaged under the first of the three contingencies under Section 146(1) Cr.P.C., that is to say, an order directing attachment in view of an emergency, pending decision in proceedings under Section 145 Cr.P.C. as to which of the parties was in actual possession. Rather, it appears to be a final order, passed at the end of a full hearing, where the Magistrate could not decide on the basis of evidence produced by parties, as to which of them was in possession. This is a contingency where the Magistrate could order attachment, provided the proceedings are maintainable, but not pending any further decision by him about possession, but by a court of competent jurisdiction, as the proceedings before him have run their full course. However, he directed attachment to be made, until such time that a decision by him as to which party was in actual possession, taken. In the opinion of this Court, that direction was flawed and manifestly illegal.

7. In this connection the decision of the Hon'ble Supreme Court in Mathuralal vs. Bhawarlal and others, (1979) 4 SCC 665 may be referred, where their Lordships have held:

"4. ............. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be "at any time after making the order under sub-section (1) of Section 145" while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section t45 prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent court. The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so. If he decides that one of the parties was in possession, he declares the possession of such party. In the other two situations he attaches the property. Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the civil court. Proceeding may however be stopped at any time if one or other of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the Magistrate disappears. The Magistrate then cancels the preliminary order. This is provided by Section 145 sub-section (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceeding initiated by a preliminary order under Section 145(1) must run its full course. ................"

(Emphasis by Court)

8. The learned Sessions Judge has set aside the order of the Magistrate without looking into the aforesaid patent fallacy. The learned Judge went into another aspect of the matter, that in view of there being a decree of permanent injunction in favour of opposite party no.2, and, against at least two of the vendors of the applicant, passed by the Civil Judge (Jr. Div.), City Kanpur Nagar, dated 14.08.2015, passed in Original Suit no.999 of 2012, restraining defendants to the said suit, from interfering with the second party's title or possession perpetually except in accordance with law, the applicant claiming, amongst others, through two of the defendants to the suit, the question of actual possession on the date of the preliminary order was already settled in terms of the decree dated 14.08.2015, leaving the Magistrate with no jurisdiction to decide it. He, therefore, set aside the impugned order on wider ground.

9. Learned counsel for the applicant has pointed out that the decree of the civil court is ex parte and, therefore, no finality attaches to it. In the opinion of this Court, that submission is not well-founded. A decree of a court of competent jurisdiction passed ex parte, as much binds the parties and persons claiming through or under them as a decree passed on contest. It is also fallacious to urge that since the decree is ex parte, no finality attaches to it. A decree by its nature and character is a final adjudication of rights inter partes; the fact that it is ex parte does not make it any less final than a decree passed on contest. An ex parte decree has all trappings of finality unless it is set aside, by an order to that effect passed in accordance with law, in competent proceedings.

10. The aforesaid principle, apart from being too well settled to invite any cavil, has received unhesitating approval of their Lordships of the Supreme Court in a recent, and, a very recent decision in Saroja vs. Chinnusamy (Dead) by LRs and another, (2007) 8 SCC 329 and Vijay Singh vs. Shanti Devi and another, (2017) 8 SCC 837. In Saroja (supra) it has been held:

"13. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition (iv) was not satisfied and accordingly it cannot be held that the principle of res judicata would not apply in the present case."

11. Likewise, in Vijay Singh (supra), their Lordships have held thus:

"12. We are only concerned with clause (a), which provides that if summons are duly served and the defendant does not put in appearance, the court may make an order that the suit would be heard ex parte. In this case, this was the procedure followed and an ex parte decree was passed. There is no manner of doubt that an ex parte decree is also a valid decree. It has the same force as a decree which is passed on contest. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties."

12. It may be noticed here that it is not the applicant's case that the ex parte decree dated 14.08.2015 has been set aside in any competent proceedings brought for the purpose, at the instance of any party, entitled to have the decree set aside. It is, thus, a subsisting decree, may be ex parte.

13. Thus, the learned Judge is right in holding that there could be little dispute about actual possession, on the date when the preliminary order was passed by the Magistrate, assuming jurisdiction to proceed under Section 145 Cr.P.C. in the face of the civil court's decree of 14th August, 2015, in favour of the second opposite party, and, against two of the vendors of the applicant, through whom she claims. At least, it is a robust indicator of the second opposite party's possession, on the date of the preliminary order.

14. The records of proceedings show, that parties are suiting their rights before courts of competent civil and revenue jurisdiction. Anything said here, is not in the least meant to prejudice the case of either of the parties to establish those rights, before a court of competent jurisdiction. All that is said here, is that the Magistrate had no jurisdiction to proceed in the matter on the state of rights of the parties. In the considered opinion of this Court, the learned Additional Sessions Judge has committed no such illegality in passing the order impugned, that may be impeached as an abuse of process of court, or interfered with, in order to secure the ends of justice.

15. In the result, this Application fails and is dismissed.

Order Date :- 31.10.2018

Anoop