Phula Ram and ors. Vs. Mehada and ors. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - 145 of the code, and laid stress upon the words there 'shall issue an order declaring such party to be entitled to possession thereof until evicted from there in due course of law'.from this, it was sought to be spelt out that what the legislature had ordained, was that the unsuccessful party to proceedings under s. arun kumar, ilr (1984) 2 punj & har 259. 8. the law must consequently be taken to be well-settled that it is open to the civil court to up-set the finding of possession recorded in proceeding;1. does the finding; in proceedings under s. 145 of the. code of criminal procedure, 1973(hereinafter referred to as 'the code'), that a particular party is in possession. preclude the civil court from holding to the contrary, on the basis of material before it? herein lies the controversy in appeal 2. the plaintiffs who are the respondents here, came to the civil court seeking an injunction to restrain the defendant;--the present appellants--from interfering with their possession over the land in suit. they claimed that they were in possession as tenants on this land. in the alternative, a decree for possession was prayed for. 3. before coming to the civil court. the plaintiffs had filed an application under s. 145 of the code. the sub divisional magistrate, narnaul, by his order, exhibit d/3 of jan. 20,1971 held the appellants bhura and others, to be in possession of the land in suit by observing, the 'spot inception showed and the entire village testified to the possession on the land in dispute as that of bhura. in view of this, i cannot rely on the affidavits produced by dev sahai. consequently; i declare bhura and others (first party), to be in possession of the land in dispute for two months from the date of the filing of this application. it was after this order had been passed that the present respondents filed this suit for injunction on june 10, 1971. the lower appellate court, after taking note of the finding recorded against them, in proceedings under s. 145 of the code, held the respondents to be in possession of the land in suit and consequently granted them the injunction prayed for. 4. it was the contention of mr. ujagar singh, counsel for the appellants that once it had been held in proceedings under s. 145 of the code that possession of the land in suit was with the defendants, it was not open co the civil court to hold to the contrary. the argument being that the plaintiffs could seek, an order of eviction or a decree for possession, but could not claim an injunction on the plea that contrary to the finding of the criminal court they were in possession of the. land in suit this view finds support from sewa das v. ram parkash; air 1947 lah 173, where it was held that in was not open to the civil court to go behind or to question the finding of possession recorded under s. 145 of the code. counsel a referred, in this behalf, to the provisions of sub-sec (6) of s. 145 of the code, and laid stress upon the words there 'shall issue an order declaring such party to be entitled to possession thereof until evicted from there in due course of law'. from this, it was sought to be spelt out that what the legislature had ordained, was that the unsuccessful party to proceedings under s. 145 of the code could seek order for eviction against the opposite party, but not of injunction on the basis of possession. 5. to further buttress his argument, counsel for the appellant also referred to the observation of subba rao, j. in bhinka v. charan singh, air 1959 sc 960 : ( 1959 cri lj 1223) : 'the foundation of his (a magistrate's) jurisdiction is on apprehension of the breach of the peace, and with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. the life of the said order is conterminous with the passing of a decree by a civil court and the moment a civl1 court makes an order of eviction, it displaces the order of the criminal court.'6. the judgment of this court in sadhu ram v. charan singh, (1963) 65 pun lr 526, however, provides a complete answer here the plea that the finding of possession recorded by the court in proceedings under s. 145 of the code was not open to challenge before the civil court, was expressly negatived in holding so, due note was taken of the provisions of sub-sec (6) of s. 145 of the code, as also the observations of subba rao j. in bhinka's case supra as regards the judgment of the high court of lahore in sewa das's case, ( air 1947 lah 173)(supra), it was held that it had not been correctly (decided. this thus provides a binding precedent for the proposition that the finding regarding possession of the criminal court under s. 145 of the,code, does not preclude the civil court from coming to a contrary conclusion, on the basis of material placed before it. 7. a similar view was expressed by the high court of orissa in nata pardhan v. banchha baral, air 1968 orissa 36: (1968 cri lj 336). also relevant in this behalf is the later judgment of our court in madan mohan v. arun kumar, ilr (1984) 2 punj & har 259. 8. the law must consequently be taken to be well-settled that it is open to the civil court to up-set the finding of possession recorded in proceeding; under s. 145 of the code, if the material before it, so warrants. 9. turning now to the present case, counsel for the appellants could point to no ground or justification to question the finding of possession recorded in favour of the respondents and consequently no exception can be taken to the decree for injunction granted to them. the judgment and decree of the lower appellate court is accordingly hereby upheld and affirmed and this appeal is dismissed with costs. 10. appeal dismissed.