ORDER
Rule issued on 22-2-85 is hereby made absolute. Costs to be costs in the cause.Dt. 4-12-1985 Sd/- M.S. DesaiJudge,Court No. 13.
5. It was urged by Mr. Shethna that because the said suit was filed and because the aforesaid orders were obtained on Ex. 5, original opponent had filed the above application for staying the Chapter proceedings in the first place. He further submitted, and it has also been specifically stated in paragraph 3 of the above application before this Court, that as the learned Magistrate by rejecting the said application presented by orig. opponent Ashokkumar had observed that the various decisions cited by original opponent to the effect that proceedings could be closed but the same could not be stayed, the orig. opponent Ashokkumar was constrained to file another application for closing the chapter proceedings on the very same grounds. It is, therefore, pertinent to note that the aforesaid challenge regarding staying of the proceedings as well as closing of the Chapter proceedings is based on the filing of the suit and the obtaining of the aforesaid orders on Ex. 5. Mr. Shethna has vehemently submitted that the filing of the said suit and the obtaining of the aforesaid orders on Ex. 5 must result either in the closing of the chapter proceedings or in an order staying the further proceedings in the said chapter case.
6. In support of the said submission, Mr. Shethna relied on the decision in the case of Ram Sumer Puri Mahant v. State of U.P. and Ors. : AIR1985SC472 . In this case, the facts were that in respect of the same property, there was a suit for possession and injunction, being Title Suit No. 87 of 1975 filed in the Court of the Civil Judge at Ballia. The question of title was considered in the said case and by judgment dated 28-2-1981, the said suit was dismissed. The appellant before the Supreme Court was the defendant in the said suit. It was also not in dispute that the matter was carried in appeal and the appeal was pending. In view of the said facts, it has been observed in the said decision that when a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, there was hardly any justification for initiating a parallel criminal proceedings under Section 145 of the Criminal Procedure Code. It was also observed that there was no scope to doubt or dispute the position that the decree of the Civil Court is binding on the Criminal Court in a matter like the one before the Suprem Court. Mr. Shethna heavily relied on the following observations in the said case:
Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction, particularly when possession is being examined by the Civil Court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the learned Magistrate by which the proceedings under Section 145 of the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the Civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.
7. It is to be noted in the first place that in the case before the Supreme Court, a decree considering the question of title had been passed and the matter was pending in appeal. In the present case, the chapter proceedings under Section 145 of the Code have been initiated,, as stated above, in the year 1980 and the aforesaid suit, though came to be numbered in 1985, was filed only in the year 1983. No decree has yet been passed in the said suit. So far as the aforesaid interim orders passed in the said suit No. 619 of 1985 are concerned, a perusal of the same shows that the orders are taking care of the situation that might prevail after the filing of the suit and during the pendency thereof. Those orders indicate that the Court was anxious that further complications in the matter should not arise by way of temporary or permanent constructions in the shop or by way of transfer of possession of the property in any manner whatsoever pending the suit or creating any interest in the suit shop pending the suit. It is necessary to point out that so far as the actual possession of orig, opponent Ashokkumar was concerned, none of the interim orders affected the said possession. The actual possession of orig. opponent Ashokkumar is not sought to be disturbed by the Civil Court by virtue of the aforesaid interim orders. In view of the aforesaid facts of the present case, it does not seem that the aforesaid decision of the Supreme Court can help the orig. opponent Ashokkumar. It may also be noted at this stage that the present chapter proceedings have been initiated by orig. applicant Chinubhai on the very next day after forcible possession was alleged to have been taken by the orig opponent Ashokkumar of the said shop, with a view to obtain an order on the basis of his, i.e. orig. applicant Chinubhai's, actual possession before the date of forcible dispossession, and the preliminary order was passed as required in the said chapter proceedings by the learned Magistrate, since he was satisfied at that point of time about the requirements of the application under Section 145 of the Criminal Procedure Code. It hardly needs to be pointed out that the purpose and spirit of the said Section 145 of the Code is entirely different from that of a civil suit, wherein actual possession is claimed on the basis of title. It cannot be gainsaid that before such chapter proceedings end in a final order in favour of the applicant before the court if the Civil Court passes a decree regarding possession on the basis of title, such chapter proceedings cannot be permitted to continue further. It is obvious that a mere filing of a civil suit and obtaining orders in the said suit not affecting the actual possession of the person, who is alleged to have taken forcible possession of the premises in question, cannot result in a closure of such chapter proceedings; nor can an order for staying the chapter proceedings in such circumstances be passed according to law.
8. Mr. Shethna next relied on the judgment in the case of Jinabhai Ambaram Surti v. Stale and Anr. 4 GLR 559. In this case, it has been observed that there are three main considerations which must weigh with the Court in coming to the conclusion that the criminal complaint should be stayed pending the hearing and final disposal of the civil suit. The first is that the civil suit is prior in point of time to the criminal complaint. The second consideration in the case before this Court proceeded from the provisions enacted in Rule 2 of Chapter XX of the Schedule, and the third consideration in the said case was that under the Bombay Provincial Municipal Corporations Act, 1949, in the case of contraveation of the provisions of Rule 6(1) of Chapter XII of the Schedule, the Municipal Commissioner had two remedies available to him; one remedy was to proceed by way of action under Section 260; and the other remedy was to institute a criminal complaint under Rule 1 of Chapter XX of the Schedule. The Municipal Commissioner in the case before the Court adopted the first remedy and action was taken against the petitioner under Section 260, which action was challenged in the said civil suit. It appears that thereafter the Municipal Commissioner also adopted the second remedy and that was the criminal complaint, which was sought to be stayed. It was in those circumstances, that it was held that when the legality of the first remedy adopted by the Municipal Commissioner was being challenged in the civil suit on the ground that the remedy was ill placed because there was no contravention of the provisions of Rule 6(1) of Chapter XII of the Schedule, it was but just that the simultaneous prosecution of the second remedy founded on the same ground should be stayed. Obviously, the facts of the present case clearly do not fall within the ratio of the said decision.
9. Relying on the judgment in the case of Narendrakumar Jayantilal and Ors. v. The State of Gujarat and Anr. 7 GLR 835, it was submitted by Mr. Shethna that when there is a criminal proceeding and the civil suit and the issues are common, it is much more satisfactory to get the decision of the Civil Court on the issues rather than to get the decision of the Criminal Court on the very issues. He further submitted that the dominating idea behind determination of such a question should be whether there is a likelihood of embarrassment or prejudice to the accused in the case by reason of the simultaneous prosecution of the criminal complaint and the civil suit in different courts and that if these tests were satisfied, the normal practice has to stay criminal prosecution during the pendency of the civil suit. As in the reported decision the facts were not stated, I have looked into the original judgment. Shortly stated, a complaint was launched in the circumstances narrated in the judgment by one Sharadchandra on 22-3-1965 to the Police. On 19-4-1965, i.e. about a few days before the charge-sheet was sent to the court by the Police, said Sharadchandra filed Civil Suit No. 1538 of 1965 in the Court of the Small Causes at Ahmedabad and the reliefs sought for in the suit inter alia were that the defendants, who were the accused in the criminal case, should be permanently restrained from obstructing his possession of the suit premises by force and be ordered to remove the locks and be restrained from obstructing the plaintiff from entering the suit premises. In the background of the said facts, this Court had examined the question as to whether the criminal proceedings were required to be stayed. While considering the said aspect, the Court observed as under:
Apart from the desire to follow the normal pratice as observed by the Division Bench of this Court in the case referred to above, as also in the judgment of Chagla C. J. in appeal No. 3 of 1954 in the Bombay High Court and having regard to the observations of Beaumont, C.J. in Thakorelal Vadilal v. Ambalal Bhikhabhai Patel 44 Criminal Law Journal 100, referred to hereinabove,, the facts and circumstances of this case do well justify me to prefer to have such common points decided by the Civil Court so as to help in resting the points at dispute and give finality to the rights of the parties in respect of the property in question even though that decision may not in law bind the Criminal Court. That would save time and avoid possible conflict of decisions on the same points. Besides, in this case, it is not the accused who have chosen to go to the Civil Court with a view to have a Criminal case filed by the other side delayed or prolonged, but the complainant has preferred to go to the Civil Court for determination of his rights over the premises in question, as he requires certain reliefs which have been sought for in the suit. The plaintiff who happens to be the complainant, for reasons best known to him, thus thought that Civil Court would be more appropriate to decide their disputes and enable him to get the possession of the premises and when that is so, it is difficult to see, except for seeing that the other side is put to embarrassment and harassment, how the prosecution of his complaint would at all help him and the case for which he litigates, inspite of that, he feels that he must have the Criminal case tried and decided first, he can well let go his suit and be content with the decision in the Criminal Court. That would be within his choice and within his hands. The accused would not have any voice in the withdrawal of the suit if that were to be done and in that event he can have his own satisfaction to go on with the Criminal case. The proceedings in the Criminal case would not help him in the ultimate purpose mat he seeks to serve in the present litigation viz. to have the locks opened and to be in the possession of the premises as early as possible. It is in his interest to proceed diligently in the Civil Court and have his rights determined as early as possible.
10. In the first place, the facts of the present case are clearly distinguishable from the facts which obtained in the aforesaid Criminal Revision Application No. 481 of 1965. The criminal proceedings in the present case are chapter proceedings under Section 145 of the Code. A preliminary order has been passed by the learned Magistrate concerned. The allegation of the orig. applicant-Chinubhai is that forcible possession has been taken of the suit shop and as his actual possession was disturbed unlawfully and illegally, he should be put back in possession. So far as criminal proceedings and the aforesaid suit are, concerned, it cannot be said that there are identical issues involved. To recall, the chapter proceedings were initiated on 17-9-1980 whereas the aforesaid Suit No. 619 of 19X5 has been filed on 11-8-1983. It is well settled that if a person wants to claim mesne profits from the defendant anterior to the filing of the suit, then he has to bring such a suit within three years from the date of the accrual of the cause of action regarding mesne profits, and if he fails to do so, then the mesne profits that would fall beyond the period of three years from the date of the filing of the suit will become time-barred and he would not be able to prosecute his remedy, according to law, regarding such mesne profits. In the present case, the aforesaid suit has been filed just before a month within the period of three years from the date of accrual of the cause of action regarding mesne profits, namely, 17-9-1980. When such a suit is filed, it cannot be regarded as a voluntary act on the part of such a complainant, since no person can be expected under law to forego his right to claim a remedy according to law by not filing the suit within the prescribed period. In the aforesaid criminal revision application, Sharadchandra had lodged the complaint on 22-3-1965 and on 19-4-1965, said Sharadchandra also filed Civil Suit No. 1538 of 1965, that is to say, he had filed the Civil Suit within a period of one month from the date of the filing of the said complaint. There was no question of limitation in the said revision application regarding mesne profits, as is found in the present matter, and so the filing of a suit in the case of Sharadchandra was obviously a voluntary act on his part. In the present case, original applicant Chinubhai had waited almost upto the last within the period of limitation for filing the said suit and so it is difficult to regard the filing of the said suit on the part of the orig. applicant to be a voluntary act. It is true that so far as relief for possession on the basis of title and not actual possession is concerned, such a suit could have been filed within a period of 12 years from the date of the accrual of the cause of action, but if the orig. applicant Chinubhai had waited beyond the period of three years from the date of the accrual of the cause of action, namely, 17-9-1980, then he would have to forego a part of his claim regarding the mesne profits, since the same would have become time-barred. If in such circumstances a person like the orig. applicant Chinubhai files a suit, it can hardly be regarded as a voluntary act on his part. Furthermore, the complaint in the aforesaid criminal revision application filed by Sharadchandra was as a result of the threat given to him to the effect that Ahmedabad Electricity Company would be prevented from, giving three-phased service, which was very vital for carrying on his business of Printing Press in the suit premises by adopting measures in that connection. The said complaint was not regarding forcible dispossession. It is also evident that a chapter proceeding under Section 145 of the Code is normally expected to last for a year or so and the orig. applicant Chinubhai in the present case had waited upto the last month provided under the limitation Act before bringing the said suit, that is to say, he had wailed for almost three years before bringing the said suit, as the chapter proceedings had prolonged for one reason or the other beyond the normal period of its life. I am unable to find, in the facts and circumstances of the present case, that orig. applicant Chinubhai was having recourse to law only with a view to see that the other side is put to embarrassment and harassment. In the facts and circumstances of the present case, he can hardly be expected to make a choice between the aforesaid chapter proceedings and the said suit and be compelled to forego one of the same and pursue only the other. For all the aforesaid reasons, the decision in the aforesaid Criminal Revision Application cannot better the case of the orig opponent Ashokkumar.
11. The next decision that requires to be considered is the one reported at 14 GLR p. 74 Shanabhai Motibhai v. H.S. Rathod PSI Borsad. The facts here were that one Bhupatbhai Prabhatbhai Padhiar had filed Civil Suit No. 161 of 1971 in the Court of the Civil Judge (J.D.) Borsad for obtaining certain declaration in respect of the lands bearing Section Nos. 374, 453, 454, 455 and 456 of village Anklav, Taluka Borsad-and also for an injunction restraining the defendants from interfering with his possession. The above lands admeasure 7 acres and 34 gunthas. An ad-interim injunction was issued against the defendants and the injunction was confirmed on 27-10-1971. The Police Inspector, Anklav had lodged a complaint in the Court of the Sub-Divisional Magistrate, Petlad for taking action under Section 145 of the Criminal Procedure Code. The learned Sub-Divisional Magistrate passed an order on 2-5-1972, that is to say, after the aforesaid injunction was confirmed by the Civil Court on 27-10-1971. In view of the said facts, it was held that before the proceedings under Section 145 of the Criminal Procedure Code were started, the Civil Court was already seized of the matter and an interim injunction had already been issued to the defendants, restraining them from interfering with the possession of the plaintiff. Under those circumstances, it was hardly necessary for the Sub-Divisional Magistrate to take proceedings under Section 145 of the Code. It has been observed that if the Magistrate apprehended that breach of peace was likely to be caused, the proper course to follow was to take proceedings under Section 107 of the Criminal Procedure Code. It was also held that as the proceedings under Section 145 of the Code are of quasi-judicial nature, it was necessary for the Sub-Divisional Magistrate to respect the decision of the Civil Court and to pass appropriate orders in the proceedings that were pending before him on the basis of that, order. It is, therefore, clear that this decision cannot help the orig. opponent Ashokkumar, in view of the facts of the present case, as stated hereinabove.
12. Mr. Shethna next referred to the case of Shakariben W/o. Titibhai Haihibhai v. Lalabhai Amrutlal Patel and Ors. 1983 GLH (UJ) 106. In this case, the City Civil Court had passed an interim order and had determined one fact that the petitioner was entitled to retain possession of the disputed hut till the suit was decided. On those facts, it was held that once the Civil Court, which is a competent court to determine the rights of the parties, has passed an appropriate order, then the Executive Magistrate would not have any jurisdiction to pass contrary order under Section 146 of the Criminal Procedure Code. The principle propounded in the said decision is not challenged before me. What is pointed out is that the Civil Court had paused an interim order regarding possession and had applied its mind to the question of possession of the disputed hut pending the suit and since those were the facts, it was not open to the Executive Magistrate to decide for himself regarding the question of possession by exercising the powers under Section 146 of the Criminal Procedure Code. As pointed out earlier, in the present case, the Civil Court has not passed any such interim order. That being so, this decision can hardly help the orig. opponent Ashokkumar.
13. Mr. Shethna had next invited my attention to a decision dated 25-10-1985 of this Court (Coram: N.H. Bhatt, J.) in Criminal Revision Application No. 630 of 1984 with Criminal Revision Application Nos. 8 and 35 of 1985. The above revision applications arose out of the same set of facts, as narrated in the judgment. Briefly stated, one Maniben had lodged information with Baroda Police alleging that accused Nos. 1, 2 and 3 bad trespassed into her shop. The Criminal case which was registered No. 323 of 1981 at the instance of the Police. On 22-6-1983 the learned Magistrate acquitted all the accused, holding that on the alleged day of the trespass, the accused were already in possession of the shop in question. Thereafter, the question arose at the instance of one of the accused regarding handing over of the keys. The keys were left with the Magistrate by the Police after locking the premises. The learned Magistrate ordered that the keys be delivered to the accused Nos. 2 and 3. Against the said decision, Maniben preferred Criminal Appeal No. 21 of 1984 in the Sessions Court and the Sessions Court ruled that possession be given to said Maniben and Kantilal and not to Pramodrai and Kantilal. From the said order, the aforesaid three revision applications arose. After the said complaint was filed, accused Pramodrai had filed a civil suit for injunction, restraining Maniben and others from interfering with his possession and the trial Court had made the injunction absolute, though an Appeal From Order was pending. It was in the aforesaid set of circumstances that this Court held that when the question as to who is entitled to retain possession is before the civil forum and when an interim order passed by that competent civil forum is holding the field at some point of time, the Criminal Court should not interfere and should leave the matter to be agitated fully and finally between the parties before the civil forum. It was on that short ground that the three revision applications were disposed of. This Court, however, had referred to the aforesaid decision of the Supreme Court in the case of Ram Sumer Puri Mahant (supra). After referring to the same, this Court had concluded as under:
In this view of the matter, and the Civil Court of competent Civil jurisdiction having taken seizing of the matter, I do not think any orders are required in the Criminal proceedings. In other words, whatever is decided by the Civil forum ultimately by way of interim orders or by way of final orders shall govern the situation.
The aforesaid observations in the said case make it clear that if the civil forum has decided either by interim orders or by final orders, the Criminal Courts should not interfere. The facts of the present case are dissimilar and, as stated above, the interim orders passed by the Civil Court in a later civil suit do not affect the question regarding actual possession of the premises in question. So far as the question of actual possession of the premises in question in the present case is concerned, there is no order of the Civil Court, either interim or final, which governs the situation regarding the premises in the present case. Thus, even if the principle propounded in the aforesaid case is extended so as to cover even interim orders, the situation in the present case is no better so far as the orig. opponent Ashokkumar is concerned.
14. Mr. Shethna has next put reliance on the case of Usharani Bej and Ors. v. Mongol Munda and Anr. 1970 Criminal Law Journal 1298. The facts of this case were that from the report of the enquiry referred to in the judgment and also from the order of the learned Magistrate himself, it appeared that there was a previous dispute over the land in question between the parties during the period of cultivation. An order under Section 144 of the Criminal Procedure Code had been made at the time restraining the petitioners before the Calcutta High Court from interfering with the opposite party's possession in the land. Again, at the time of harvesting, a fresh order to the same effect was made under Section 144. There was thus a standing dispute over this land between the parties. It was, therefore, observed that successive promulgation of orders under the section to avoid a decision of the dispute as to possession is not contemplated by Section 144. It was also found that the order of the learned Magistrate suffered from two defects. In the first place, the record did not show that he had sufficient material to satisfy him as to the necessity for a proceeding, and secondly, the order was being made to serve as a prop to possession in disputed land without the party concerned having to seek his remedy in the Civil Court. It was also held that as a matter of fact from the record it appeared that a civil suit between the parties over the land in question was pending at that time and an order of injunction had already been issued by the Civil Court restraining the present opposite party No. 1 from interfering with the present petitioner's possession in the land concerned. It was, therefore, held that by drawing up a proceeding under Section 145, the learned Magistrate induced a conflict of jurisdiction and a conflict of decisions, which is most undesirable. It was in terms observed that when the dispute has been taken seizing of by the Civil Court, which had already issued an order of injunction, that should have been treated as sufficient to prevent any breach of the peace. The facts of the present case, therefore, are clearly distinguishable. This decision, therefore, cannot assist the orig. opponent Ashokkumar.
15. The next decision relied upon by Mr. Shethna is the one in the case Puran Singh and Ors. v. Labhu Ram 1976 Criminal Law Journal 571. One of the points urged in the said case was that two civil suits inter-parties were pending. Those seem to be cross-suits and the questions of title and possession were the subject matter of dispute. Temporary injunctions admittedly bad been obtained by the respective parties. That being the position, either party was restraining from usurping possession and in such a situation it was hardly necessary to invoke assistance of Section 145. It was in the background of such facts that the ratio proceeded to the effect that if the Civil Court was seized of the matter and temporary injunctions have been obtained, there was hardly any necessity for duplication of the proceedings before the Criminal Court. It was also observed that where a civil suit is pending and an interim injunction had been obtained, there might be circum-stances to indicate that it would be a futile exercise to let parties waste their time on getting an enquiry made by the Magistrate by proceeding under Section 145 because the order of the Civil Court always overrides the decision of the Criminal Court in such matters. It has, however, been observed that at the same time, in a particular situation despite the pendency of a civil suit, a proceeding under Section 145 may be justified. The facts of the present case, as stated above, are entirely different and in the background of these facts, it would seem that despite the pendency of a civil suit in the present case, a proceeding under Section 145 is justified. Since it is nowhere held in this decision that mere filing of a civil suit would put an end to a criminal proceeding under Section 145 of the Criminal Procedure Code, this decision cannot assist the party, whom Mr. Shethna represents.
16. There is nothing in the case of Yeshwant Ganpati Khot v. Smt. Anusuyabai Anna Khot and Anr. 1979 Criminal Law Journal 67, which go to support the submission of Mr. Shethna. In this case, two orders were passed by the Civil Court regarding possession of the premises in question. Taking note of the same, it was observed that unfortunately the Sub-Divisional Magistrate totally ignored the two orders, though they had been tendered in evidence before him. In the said context, it was further observed that Magistrates exercising their jurisdiction under Section 145 of the Criminal Procedure Code would always do well to take note of the orders passed by the Civil Courts and do respect them insofar as they are consistent with their duties under Section 145. The said omission in the order passed by the learned Sub-Divisional Magistrate was to a great extent made good by the learned Sessions Judge. Since the said two orders indicated that the petitioner was not in possession of the lands on 4-12-1975 and since there was nothing to show that subsequently there has been any change in the possession, the conclusion that would naturally follow was that in the month of September 1977 the respondent was in possession. This decision, therefore, is of no avail to the orig. opponent Ashokkumar. In the case of Bhima Nayak and Ors. v. Panjashaw Durgah and Ors. 1979 Criminal Law Journal 1200, the same principle has been pointed out. It was held in this case that it was the duty of the Magistrate proceeding under Section 145 to respect the decisions and directions of a competent Civil Court regarding possession or delivery of possession in favour of a particular party and to act in agreement with such decisions and directions. It was further observed that if the proceeding under Section 145 between the parties with respect to the same lands is allowed to continue till its conclusion, that would frustrate the sanctity, weight, and effect of the said decisions, directions and orders, which would tend to paralyse administration of justice, and that once a dispute as to possession has been resolved in the proper manner by the Civil Court of competent jurisdiction, there would no longer exist a dispute within the meaning of Section 145(1) and so, a Magistrate should not again proceed to decide the question of possession in a proceeding under Section 145. The said principle is well-founded, but it is not possible to apply the same in the facts of the present case. This last decision also, therefore, does not help the original opponent Ashokkumar.
17. Mr. Shethna had next urged, in view of certain contents of the judgment dated 31-12-1982 of D.C. Gheewala, J. in Misc. Criminal Application No. 1480 of 1982 and Criminal Revision Application No. 551 of 1982. That decision was also given in the proceedings where the parties were the present petitioner and opponents. The contention, which was based on the contents of the judgment in Abdul Rahman v. Dinesh : AIR1929Cal328 , was negatived by D.C. Gheewala J. while holding that the proceedings under Section 145 of the Criminal Procedure Code could not be quashed pursuant to the ratio in the said decision. The matter was not taken any further by opponent Ashokkumar and so Mr. Shethna has rightly submitted that he could not urge for quashing of the proceedings on the ground that was already negatived. He, however, relied on the following observations made by D.C. Gheewala, J. in paragraph 8 of his judgment:
This observation to my mind would not help the petitioner inasmuch as the Magistrate before proceeding under Section 145(5) i.e. cancelling the order passed under Section 145(1) has to be satisfied that no such dispute exists or existed. This satisfaction has to be a subjective satisfaction based on an objective view of things and it can never spring from the fact that because after passing of the order under Section 145(1) no breach of peace has occurred, the dispute had never existed. If that were to be so, and if between two contesting parties, the one who has forcibly taken possession is a headstrong person and the ether side is a docile creature, then the said party would never be in a position to offer any resistance to a bully and as much peace would prevail. That by itself can never mean that a dispute likely to cause a breach of peace does not exist or has never existed. That subjective satisfaction of the Magistrate envisaged under Section 145(5) can be arrived at in more than one way, which though can be illustrated can never be exhaustively enumerated. For instance, with respect to the dispute regarding land or water or boundaries thereof, the parties which were at issue, may have settled the matter amicably to the satisfaction of both the sides or might have entered into a transaction or got their dispute adjudicated finally by the Civil Court, getting their respective rights determined. But it would be futile to expect the Magistrate to cancel his order passed under Section 145(1) on a facetious contention that nothing has so far happened after his passing the said order and hence no dispute exists and/or none ever existed.
Mr. Shethna had, therefore, submitted that since a civil suit, as stated above, has been filed, which was one of the instances which was contemplated in the judgment of D.C. Gheewala, J. for quashing the order passed under Section 145, he was endeavouring pursuant to the said observations to obtain an order for quashing of the present proceedings under Section 145. The aforesaid observations cannot help Mr. Shethna in view of what has been stated hereinabove. Even the aforesaid observations of D.C. Gheewala, J. envisaged a final adjudication of the dispute by the Civil Court regarding the rights of the parties. The said judgment does not observe anywhere that mere filing of a civil suit should be regarded as sufficient for quashing of proceedings under Section 145 of the Criminal Procedure Code. The above submission of Mr. Shethna, therefore, fails.
18. In the aforesaid view of the matter, no case has been made out by Mr. Shethna that the proceedings under Section 145 pending before the learned Magistrate should either be stayed or closed. There is no reason to get aside either or both the orders passed by the learned Magistrate on the aforesaid ground.
19. Mr. Shethna next urged that looking to the conduct of the orig. applicant Chinubhai, this is a fit case where the proceedings should be closed. In the first place, as stated hereinabove, the proceedings in question were dismissed for default and at the instance of applicant Chinubhai, the matter was taken to the City Sessions Court vide Criminal Revision Application No. 148 of 1981 and an order of remand was passed by the City Sessions Court on 10-12-1981. Therefore, whatever the conduct of orig. applicant Chinubhai was upto 10-12-1981 the same was already condoned. On the strength of the same facts, no contention can, therefore, be raised. Thereafter, on 5-3-1982, the learned Magistrate cancelled the preliminary order. Against that, orig. applicant filed Criminal Revision Application No. 89 of 1982 before the City Sessions Court challenging the said order cancelling the preliminary order. The City Sessions Court allowed the said application and sent the matter back by an order dated 30-6-1982. Against the said order, the matter was brought before this Court vide Misc. Criminal Application No. 1480 of 1982 by the orig. opponent Ashokkumar. The same ended in a dismissal by virtue of the aforesaid order dated 31-12-1982 passed by D.C. Gheewala, J. Thereafter, as stated above, orig. applicant Chinubhai had filed the aforesaid Suit No. 619 of 1985 and as the suit was filed and an order as aforesaid was obtained, the orig. opponent Ashokkumar had filed the above applications on 15-3-1985 and 27-2-1986. The aforesaid history of events shows that the parties were fighting tooth and nail against every order passed by the Magistrate either for or against and both the parties were also pursuing the same from court to court against the orders passed. There is on record the affidavit of original applicant-Chinubhai dated 28-7-1986. The contents of the said affidavit show that both the parties were applying for adjournments as and when it suited them. There is also a mention in the affidavit, and which fact is also not disputed by Mr. Shethna, that for some time the talk of compromise was going on between the parties and so on that score, the matter got adjourned by consent with a view to resolve the disputes. In the circumstances, the submission of Mr. Shethna is not well-founded when he urges that the conduct of the orig. applicant Chinubhai has been such throughout that the proceedings in question should be closed on that ground. Apart from the aforesaid, one has to recall that orig. applicant Chinubhai had approached the learned Magistrate on the very next day complaining that forcible possession of the premises in question was taken by orig. opponent Ashokkumar. After instituting the said proceedings, there is no clear record to show that it was on his count alone that the matter has dragged on from that date till today. As a matter of fact, as stated above, he has been compelled to face so many proceedings which have been instituted at the instance of orig. opponent Ashokkumar. It is also pertinent to note that since he was keen to obtain an order in the proceedings under Section 145 of the Code, he had not rushed to the Civil Court and had only filed, a civil suit when he thought that if he did not do so, at least some part of his claim as stated above would become time-barred. It is difficult to perceive how such conduct can be construed against the original applicant. If viewed from another angle, it is not too difficult to comprehend as to which side would be interested in dragging on the proceedings under one pretext or the other when the question is of actual possession of the premises in question. Besides, it was also open to the orig. opponent Ashokkumar to file a civil suit regarding his rights in the present premises and get themselves adjudicated upon by the Civil Court at the earliest to settle the disputes between the parties finally. It is not shown on record that original opponent Ashokkumar has thought it fit to himself file any such civil proceedings and obtain interim orders regarding actual possession in his favour from such court. The second submission of Mr. Shethna on the basis of the conduct of the orig. applicant Chinubhai has, therefore, no force in it and it has to be rejected.
19.1. In that view of the matter, the Misc. Criminal Application No. 1162 of 1986 fails and is hereby dismissed. The order dated 3-12-1985 and 7-3-1986 passed by the learned Magistrate are confirmed for the reasons stated in the judgment. Rule is discharged accordingly.
20. At this stage, Mr. Shethna prays that the date for proceeding further with the proceedings before the learned Magistrate should be so fixed so that it enables the original opponent Ashokkumar to pursue the matter further before the proper forum. Mr. Desai for the orig. applicant submits that some reasonable time may be given. In the circumstances, it is directed that proceedings before the learned Magistrate should beresumed on 24-10-1986 to enable the orig. opponent Ashokkumar to pursue the matter further.