Ravinder Singh & Anr. vs Gian Chand Panwar & Anr.
2010 Latest Caselaw 5447 Del

         IN THE HIGH COURT OF DELHI: NEW DELHI

+              CRL. M.C. Nos. 3388-89/2006

%       Judgment decided on: 30th November, 2010
RAVINDER SINGH & ANR.                 .....PETITIONERS

                              Through:   Mr. S.S. Panwar, Adv.
                              Versus

GIAN CHAND PANWAR & ANR.                         .....RESPONDENTS

                              Through:   Mr. Suresh Sharma, Adv. &
                                         Mr. M.P. Singh, APP
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?                    No

       2. To be referred to Reporter or not?                     No

       3. Whether the judgment should be
          reported in the Digest?                                Yes

A.K. PATHAK, J. (Oral)

1. Petitioners and respondent No. 1 are related to each

other. They are living in adjoining buildings. Dispute

between the parties in this case is in respect of a staircase.

As per the respondent No.1 his access to the first floor and

above had been blocked by the petitioners by raising a wall

in the staircase. Thus, he had approached the SDM by filing

a complaint under Section 147 of the Code of Criminal

Procedure, for removal of obstructions created by the

petitioners. In view of a civil suit pending between the parties

involving the same subject matter, SDM dropped the

proceedings. Respondent no. 1 filed a revision petition

before the Additional Sessions Judge which has been allowed

by the impugned order. That is how petitioners are before

this court by way of the present petition.

2. Brief background of the case is that sometime in the

month of November, 2002, respondent No. 1 had filed a civil

suit bearing No. 572 of 2002 in the court of Civil Judge,

Delhi praying therein that the petitioners be restrained from

carrying out any construction or demolish the existing

structure including the staircase, in the premises number

253-B, Village Shahpur Jat, New Delhi. Demolition of the

illegal constructions raised in the staircase was also prayed.

It was alleged in the plaint that the petitioners had been

raising illegal construction in the suit premises as also in the

staircase which had not only endangered the structure of the

building but had also cut off the access of respondent No. 1

and its tenants to the first floor and above.

3. An application under Order XXXIX Rule 1 and 2 CPC

was filed in the said suit, which came to be dismissed by the

Civil Judge, Delhi on 31st January, 2003. Operative portion

of the order reads as under:

"Moreover defendant in para (W) of his written statement told about panchayat meeting where it was settled that plaintiff shall built his own separate stairs and in replication this fact is not specifically denied. Simple vague and general denial amounts to deemed admission of facts alleged by opposite party. Even number of paragraphs of written statement containing some facts against plaintiff are simply denied in replication in single line without specifically dealing with those. Plaintiff also alleges that during pendency of suit, defendant has raised some constructions and made a wall in the stairs but no amendment is sought in the plaint to add subsequent facts nor any application is moved in this regard so when no relief is claimed in the main suit then no relief can be given which is not prayed in the plaint. Accordingly oral prayer of plaintiff for ordering of demolition of wall raised in stairs during pendency of suit allegedly which fact is disputed by defendant cannot be entertained. Hence there exist no ground to believe the story put forward by plaintiff. He has no prima facie case in his favour.

In view of above discussion, injunction application of plaintiff is hereby dismissed. This order shall not prejudice the rights of MCD to take any action as per law against properties of both plaintiff or defendants."

(emphasis supplied)

4. Appeal against the said order is stated to has been

dismissed by the learned Additional District Judge on 22nd

January, 2005. Thus, the order passed by Civil Judge has

attained finality between the parties.

5. During the course of arguments it has been admitted

that the said suit is pending before the Civil Judge.

6. Immediately after filing the civil suit, respondent No. 1

also initiated criminal proceedings under Sections 107/147

Cr.P.C. before the Sub Divisional Magistrate (SDM), New

Delhi praying therein that petitioners be restrained from

interfering in the right of access of respondent No. 1 leading

to first floor of the property and for that purpose,

obstruction/hindrance created by the petitioners in the

staircase be directed to be removed. It may be noted here

that even in the suit respondent No. 1 had prayed that the

petitioners be directed by way of decree of mandatory

injunction to remove the illegal construction raised in the

staircase.

7. In view of the pendency of the civil suit between the

parties over the same subject matter, SDM vide order dated

25th January, 2003 ordered for dropping of the proceedings.

8. This order was assailed by respondent No. 1 by

preferring a Criminal Revision Petition before the Additional

Sessions Judge. Vide order dated 10th April, 2006, learned

Additional Sessions Judge has allowed the Revision Petition

opining that SDM was not correct in dropping the

proceedings since he had no jurisdiction to drop the same,

after proceedings under Section 147 Cr.P.C. had commenced

before him. Reliance was placed on Mathura Lal vs.

Bhanwar Lal, AIR 1980 SC 242.

9. From the facts narrated hereinabove, it is abundantly

clear that the subject matter in issue in civil suit and the

criminal proceeding is more or less same. On petitioners

raising construction in the staircase and other portion of the

building, respondent No. 1 had first approached the civil

court seeking decree of permanent injunction against raising

of construction in the building including the staircase and

decree of mandatory injunction for the demolition of the

structure already raised. It was specifically alleged in the

plaint that by raising construction in the staircase,

petitioners had cut off the access of respondent No. 1 to the

first floor and above. Similar is the relief claimed in the

complaint before the SDM but only with regard to the

staircase.

10. In the above facts, in my view, it was not open for the

respondent No. 1 to initiate a parallel criminal proceeding

before the SDM under Section 147 Cr.P.C. over the same

issue claiming similar relief, after having filed a civil suit in

this regard. Such proceedings would not be maintainable,

inasmuch as, it would result in multiplicity of proceedings.

There was also possibility of these different forums taking

conflicting view, regarding the same subject matter.

11. In Ram Sumer Puri Mehant vs. State of U.P., AIR

1985 Supreme Court 472, it has been held that when a civil

litigation is pending in respect of a property wherein the

question of possession is involved and has been adjudicated,

initiation of a parallel criminal proceeding under Section 145

Cr.P.C., would not be justified. In Gurbachan Singh vs.

State & Ors., 54 (1994) DLT, 24, a Single Judge of this

Court has held that in the face of an already existent

injunction order passed in a pending civil suit, a party

cannot be allowed to litigate before criminal court. In

Oriental Bank of Commerce vs. State & Anr., 45 (1991)

DLT (SN) 29, this Court has held that once a matter is

pending before civil court regarding the possession of

disputed premises, SDM was not competent to go into that

question under Sections 145/146 Cr.P.C. Similar is the view

expressed by a Single Judge of this Court in Rajpal Singh

vs. Commissioner of Police, 1981 Rajdhani Law Reporter

(Note 32). In the said case it was held that if civil court is

seized of a matter then proceedings under Section 145

Cr.P.C. cannot be commenced on the excuse of breach of

peace. In Suresh Kumar vs. Vijay Kumar and Anr., 31

(1987) DLT 318, this Court has held that when a civil

litigation is pending for the property wherein the question of

possession is involved and has been adjudicated, initiation of

a parallel criminal proceedings under Section 145 Cr.P.C.,

would not be justified.

12. It is true that the above Reports are with regard to the

proceedings under Section 145 Cr.P.C. but, in my view, same

principles will be applicable to the proceedings under Section

147 Cr.P.C., inasmuch as, the issue involved herein is

removal of obstruction caused in the staircase by raising a

wall. Issue involved in the civil and the criminal proceedings

under Section 147 Cr.P.C. is more or less same. Merely

because relief in criminal proceedings is differently worded,

by itself would not make much difference. The fact remains

that respondent No. 1 is aggrieved by the

obstructions/hindrances created in the staircase, which

according to him had restricted his access to the first floor

and above. This issue is pending trial before the civil court,

inasmuch as the relief of interim injunction in this regard

had already been declined. Thus, the proceedings under

Section 147 Cr.P.C. are debarred in the same facts.

13. This court is of the view that when the issue of

obstruction of staircase is pending trial in the civil court no

parallel criminal proceedings under Section 147 Cr.P.C. can

be permitted before the SDM, more so when decree of a civil

court is binding on the criminal court in such like matters.

14. For the foregoing reasons, I am of the view that

criminal proceedings under Section 147 Cr.P.C., in view of

the pendency of the civil suit pending between the parties on

the same subject matter, are not maintainable and cannot be

permitted to go on. Accordingly, impugned order is set aside

and the proceedings before the SDM are dropped.

15. Petition is disposed of in the above terms.

A.K. PATHAK, J.

NOVEMBER 30, 2010 / rb