Reserved On : 25. 03.202 vs State Of J&K & Anr
2021 Latest Caselaw 381 j&K/2

                                            1


  S.No.219
  After Notice


                  HIGH COURT OF JAMMU AND KASHMIR
                            AT SRINAGAR.
                               *******
                         CRMC No.331/2018
                            IA No.1/2018

                                                 Reserved on : 25. 03.2021
                                                 Pronounced on : 02 .04.2021
Abdul Rashid Mir & ors.
                                                            ...Petitioners(s)

                       Through: Mr. M.A.Qayoom, Advocate.

                                           Vs
State of J&K & Anr.
                                                           ...Respondent(s)

                        Through: Mr. Shabir Ahmad Budoo, Advocate.


CORAM:
              Hon'ble Mr. Justice Rajnesh Oswal, Judge

                             JUDGEMENT

01. The petitioners through the medium of present petition have assailed

order dated 14.08.2018 and are seeking transfer of the case from the court

of CJM Budgam to any other court of competent jurisdiction at Srinagar.

02. The brief facts necessary for the disposal of the present petition are that

the petitioners claim to be in possession of three shops bearing shop no. 3, 4

and 6 existing in the ground floor of Auqaf building situated at Chrari-Sharief

at main old bus stand next to the shrine of Hazrat Sheikh Noor-ud-din Noorani

( R.A.) for more than four decades and they have been regularly paying rent

to the Auqaf and have been maintaining business of Kiryana, Manari,

cosmetics readymade garments and allied items in the leased out premises.

The respondents without any justification or cause started illegally interfering

with the possession of the petitioners over the aforesaid shops which

constrained the petitioners to file a suit for permanent and mandatory

injunction in the court of sub-judge, Budgam, on 28.09.2004 against them

and learned court vide order dated 29.09.2004 directed the parties to maintain

status-quo. Despite the said order , respondents resorted to blocking of traffic

in the area just near the shops of the petitioners and before the petitioners

could file application for implementation of the order of the court through

police, the police itself approached the court of CJM Budgam on 27.12.2004

seeking indulgence of the court to proceed under section 145 Cr.P.C. in the

matter. Vide order dated 25.04.2005 the court of CJM, Budgam, passed an

order directing that the shops in question shall remain attached and directed

SDPO Chrari-Sharief to take over the possession of shops till further orders

and in compliance to the said order SDPO Chrari Sharief submitted the report

before the court stated therein that , he found that there were 151 items in the

shop of the petitioners which has been locked, sealed and photographed by

him.

03. Respondents filed their written statement and the trial court after framing

the issues in the case directed the parties to lead their evidence.

04. The parties laid their evidence in the proceedings initiated under Section

145 Cr.P.C. whereafter, the learned CJM Budgam, on 20.08.2007 recorded a

finding that the evidence adduced by the contesting parties in the matter

being insufficient so the court is not in a position to draw any conclusion or

legal opinion regarding the exclusive possession f any of the parties in

respect of the disputed shop at the time of framing preliminary order within

two months before the next date. The court accordingly, while confirming

preliminary order appointed SDPO as Receiver and submitted the case to

the Principal District Judge with the request that the enquiry in respect of

possession in accordance with law, may be entrusted to any other court in

terms of section 146 Cr.P.C. and the result of the enquiry be forwarded to the

said court for orders.It is further stated that Principal District Judge vide order

dated 19.09.2007 assigned the case to Munsiff Chrari Shrief with the

direction to conduct an enquiry into the matter and decide the question of

possession and transmit its finding to the court of CJM Budgam by

31.12.2007. The Munsiff Chrari Sharief there after directed the parties to

adduce evidence in the matter but during the course of recording evidence,

the respondents filed an application before the Principal District Judge,

Budgam, for transfer of the case from the court of Munsiff Chrari Sharief to

any other court. Accordingly, the learned Principal District Judge vide order

dated 08.12.2021 transferred the case from the court of Munsiff Chrari

Sharief to Sub- Judge, Chadoora where the respondents who were in the

process of leading evidence produced additional evidence and ultimately on

16.11.2013 closed their evidence and posted the case for further proceeding

on 24.12.2013. Thereafter learned Sub-Judge submitted its findings to the

court of Chief Judicial Magistrate Budgam vide order dated 29.12.2017 and

since then the matter is pending in the said court. On receipt of the file from

the court of Sub Judge Chadoora, the learned CJM Budgam did not hear

arguments in the matter, However, on 11.08.2018 when the petitioner's

counsel found the counsel for the respondents arguing the matter before

Chief Judicial Magistrate, Budgam. After he concluded his arguments, the

counsel for the petitioners sought time to argue the matter but the court

without giving any opportunity to the counsel to make submissions in the

matter passed order directing that parties have been heard and the matter

has been posted for orders on 20.08.2018. On 14.08.2018, the petitioners

submitted an application before the court of CJM Budgam praying therein that

since the SDPO Chrari Sharief, who has been appointed as receiver by the

court vide order dated 25.04.2005 and who has after preparing inventory of

the goods lying in the shop, locked , sealed and photographed the shop, was

an important witness, therefore, before passing any final order in the matter,

his statement be recorded as the same was required for fair and just disposal

of the case. However, without issuing any notice of application to otherside

and without hearing the petitioner's counsel, the court of CJM Budgam, has

rejected the same on the ground that the court has to dispose of the case in

terms of Section 146 Cr.P.C. in conformity with the findings of Sub Judge

Chadoora and he has no power to examine the receiver or direct civil court

to re-examine him because once civil court has recorded findings after

holding enquiry, the court is bound by those findings recorded by the civil

court.

05. The petitioners are aggrieved of the order dated 14.08.2018 and they seek

setting aside of the same as well as transfer of the case from the court of CJM

Budgam to any other court of competent jurisdiction at Srinagar for disposal

amongst other on the following grounds:-

a) That it is well settled proposition of law that no order under section

146 Cr.P.C could be passed when the matter is pending before a civil

court for adjudication of title and possession. In the instant case, the

petitioner had filed a civil suit in the court of Sub- Judge Budgam in

the year 2004 in which order of status quo was passed. The suit was,

however, dismissed by the court vide order dated 10.10.2017 and

the petitioner have filed an appeal against the said judgment and

decree passed by Sub Judge Budgam. The appeal is, however still

pending before the court of District Judge Budgam and the matter

with regard to title and possession of the shop has not been decided

by the court as yet.

b) that without prejudice to what has been stated above, it is further

submitted that even if it be assumed that the courts below had the

power to refer the matter under Section 146 (1) Cr.P.C. to the civil

court, during the pendency of the suit filed by the petitioners

regarding title and possession of the shop before the court of Sub-

Judge Budgam yet the Sub-Judge Chadoora to whom the case was

transferred from the court of Munsiff Chrari sharief, was obliged to

examine SDPO Chrarisharief, as a witness in the case and only

thereafter send the file to the court of CJM Budgam, to enable him

to pass further orders in the matter. It was, therefore, incumbent on

the learned CJM Budgam to return the file back to the court of Sub

Judge Chadoora for recording the statement of SDPO Chrari-Sharief.

He on the other hand, on receipt of the file from the Sub Judge

Chadoora having heard the argument in the matter at the back of the

petitioners and their counsel and he having not allowed them to

argue the matter before him, therefore, reserving the case for orders

by learned Chief Judicial Magistrate is without jurisdiction and the

order is liable to be set aside.

06. During the course of arguments, Mr. M.A.Qayoom vehemently

argued on the following issues; once the civil court returns the finding qua the

possession with regard to the property, the possession under Section 145 shall get

automatically revived, that there is no bar under Section 145 so as to examine

any witness, that SDPO is an important witness.

07. Per contra Shabir Ahmad Budoo, has argued that once civil court was

directed to conduct the enquiry with regard to the possession and has submitted

its findings to the Magistrate, then the Magistrate has to dispose of the

proceedings under Section 145 according to the decision of the civil court.

08. Heard and considered.

09. Chapter XII of Cr.P.C. relates to the dispute of immovable property and

Section 145 to Section 148 prescribes the mode and manner in which the dispute

qua possession with regard to the immovable property has to be determined.

This Chapter of the Cr.P.C. provides the method for the settlement of the

disputes with regard to the land etc. as mentioned under Section 145 Cr.P.C.

10. Admittedly, the matter has been referred to Civil court and the civil court

had returned its findings and remitted back the case to learned Magistrate and

it is only after the decision of the civil court was transmitted to the learned

Magistrate, the petitioners have laid a motion for examining the SDPO Chrari

Sharief, which as per them is an important witness. It is not forthcoming from the

record as to why the petitioner did not lay any motion before the sub judge

Chadoora for examining the said witness, if the petitioners deem the said witness

to be an important witness. Now once the civil court has returned its findings in

the enquiry and transmitted the decision to the learned Magistrate, the magistrate

cannot examine any other witness.

11. The contention of Mr. Qayoom, learned counsel for the petitioners that

there is no bar under Section 145 to examine any witness, has no substance.

12. It is because of the reason that as per the mandate of Section (1-b) of

Section 146 Cr.P.C., the civil court shall , as far as may be practicable, within a

period of three months from the date of appearance of the parties before it,

conclude the enquiry and transmit its findings together with the record of the

proceedings to the Magistrate by whom the reference was made; and the

magistrate shall on receipt thereof, proceed to dispose of the proceeding under

section 145 in conformity with the decision f the civil Court. Further Section (1-

d) of Section 146 provides that no appeal shall lie from any finding of the Civil

Court given on a reference under this section nor shall any review or revision of

any such, finding be allowed. Thus the finding returned by the Civil court is final

and binding upon the Magistrate and the Magistrate has no other option but to

dispose of the proceeding in conformity with the decision of the civil court. If an

application of the petitioners for examination of SDPO, Chrari Sharief, is

allowed at this stage, it would amount to reopening of the controversy that stands

already settled by the decision of the civil court and that would be against the

mandate of section (1-d) of Section 146 Cr.P.C. In this view of the matter, this

court does not find any illegality in the order passed by the learned Chief Judicial

Magistrate, Budgam ,as such, present petition is misconceived and is accordingly

dismissed. Interim direction, if any, shall also stand vacated.

( Rajnesh Oswal ) Judge Srinagar 02.04.2021 Nuzhat,Secy.