Judgment:
Sunanda Bhandare, J.
(1) This petition under Article 227 of the Constitution of India is directed against the order of the Additional Senior Sub-Judge, Delhi dated 9/02/1987 whereby the application of the petitioners under Order39 Rules 1 and 2 of the Code of Civil Procedure was dismissed,
(2) The brief facts leading to the filing of this petition, as stated by the petitioners, are as follows :-The petitioners and one Shri Mangal Sain respondent no. 8 herein by way of a registered sale deed dated 31/01/1972 purchased and measuring 5bighas and 16 bids was situated at Village Karawal Nagar, Illaqa, Shahdra, Delhi from Smt. Khazano widow of late Shri Likhi of Village Karawal Nagar, IllaqaShahdra, Delhi. Respondents 1 to 6 claimed their right in this land on account of two sale deeds dated 29/12/1971 alleged to have been executed bySmt. Khazano, Smt, Chhazia and respondent no. 7. Smt. Khazano filed a suit for declaration that the sale deeds dated 29/12/1971 were fraudulent and that she had never executed the sale deeds in favor of respondents 1 to 6.The suit was tried by Sh. S.S. Handa, Sub-Judge, 1st Class, Delhi and by his order dated 28/05/1982 the said suit was decreed in favor of Smt Khazano.Respondents 1 to 6 filed an appeal against the said judgment, however before the appeal could be finally decided, during the pendency of the appeal, Smt.Khazano died and respondents 1 to 6 got respondent no. 7 imp leaded as legalheir of Smt. Khazano though respondent no. 7 was not the son of Smt.Khazano but was the son of Smt. Chhazia and got the matter compromised and the Additional District Judge, Delhi passed a compromise decree. Separate proceedings under Section 145 of the Cr. P.C. were started between respondents Ito 6 one Shri Ghasi and the Magistrate attached the land under Sec 146 Cr.P.C.and made a reference to the civil court for decision as to which party was in possession of the land in dispute on the date of the passing of the prelimintary order passed by the Magistrate on 17/04/1972 and within two months prior to that. This reference under Section 146 Cr. Pc was decided by Shri R.S.Mahla, Sub-Judge, Delhi on 16/04/1983 and held that respondents 1 to 6were in possession and were entitled to the possession of the land in question.The petitioners were not party either to the suit filed by Smt. Khazano against respondents 1 to 6 or in the proceedings under Section 145 Cr. P.C. and 146 Cr.PC.The petitioners filed a suit for declaration against respondents alleging there in that the consent decree passed by the Additional District Judge on 27-4-83 in the appeal filed bp respondents 1 to 6 against Smt. Khazano was obtained bymis-representation, collusion and fraud. Along with this suit, the petitioners filed an application under Order 39 Rules 1, 2 and 3 read with Section 151 of theCode of Civil Procedure praying that injunction be issued restraining respondents 1 to 6 from dispossessing the petitioners or otherwise interfering with their possession over the land measuring 5 bighas and 16 biswas. The trial court by order dated 31/01/1987 dismissed the application against which the petitioners filed an appeal before the Additional Senior Sub-Judge, Delhi and by way of the impugned order dated 9/02/1987 the first lower appellate court admitted the appeal but refused to grant injunction.3. The main ground on which the first lower appellate court has rejected the application of the petitioners for injunction is that if an order of injunctionis granted, it will put a restraint on the S.D.M. who is ceased of the matter under Section 145 Cr. P.C. which is not permitted as observed in the judgment of the Orissa High Court in Kaliprasad Das & Another v. Gadadhar Sahu, : AIR1978Ori84 . It was contended by the learned counsel for the petitioners that the judgment of the Orissa High Court in Kaliprasad Das & Another (supra) was not in applicable to the facts of the present ease because the Orissa High Court in that case had held that the order of temporary injunction could not be grant-ed because of the proviso to Order 39 Rule I applicable to Orissa. Learned counsel relied on a judgment of the Special Bench of Assam High Court in Brajender Kumar Sen Gupta v. Jitender Chandra & Others, Air 1960 Ass 111in support of his contention that the order of a Magistrate under Section 145 Cr.P.C. holding that a party is deemed to be in possession did not in any manner affect the jurisdiction of the civil court to grant an injunction.
(3) I find substantial force in the contention of the learned counsel for the petitioners that the judgment of the Orissa High Court in Kaliprasd Das &Another; (supra) which is based on a proviso as applicable only to Orissa will not be applicable in the present case. The judgment of the Assam High Courtin Brajender Kumar Sen Gupta (supra) is conclusive on the matter. There can ba no doubt that the jurisdiction and power of the civil court, if an appropriate case is made out for exercise of its discretion under Order 39 of the Code ofCivilProcedure, is not in any manner hampered merely because Proceedings under Section 145 Cr. Pc for maintaining peace are initiated.
(4) I find that by the impugned order the Additional Senior Sub-Judge, c the injunction application on this ground alone without codsidering whether the petitioner has made out a prima-facie case or whether the balance of convenience is in favor of the grant of injunction prayed for by the petitioners. The appeal filed by the petitioners however is admitted. In my view,the Additional Senior Sub Judge, Delhi has failed to exercise the power canorderhim under an impression that he did not have the jurisdiction to pass an order because of the pendency of proceedings under Section 145 Cr. PC.
(5) In the result, the petition is allowed. The impugned order dated 9thFebruary 1987 is set aside. The Additional Senior Sub-Judge, Delhi is directed to decide the application afresh according to law. The parties will datethethe Additional Senior Sub-Judge, Delhi on 11/05/1987 on which date the learned Judge will fix a date for hearing of the injunction application. Statusquo regarding possession of the land will be maintained till the final disposal ofthe application under Order 39 Rules 1 and 2 of the Code of Civil Procedure by the appellate court. No. costs.