M.P. Peter v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Crl.MC.No. 1709 of 2008(M) -------------------------MC.26/1998 OF THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA. .................... PETITIONER: ------------ M.P.PETER, S/O. M.C.PAULOSE, AGED 55 YEARS, MECKAMKUNNEEL HOUSE, VILANGU P.O., VILANGU, EDATHALA (VIA), ALWAYE, ERNAKULAM DIST. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.MANU TOM RESPONDENTS: STATE & COUNTER PETITIONERS. ----------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA. 3. MR. M.C.JACOB, S/O. CHACKO, AGED ABOUT 76 YEARS, MANAGING PARTNER, KITEX LIMITED, KIZHAKKAMBALAM. BY P.P. SRI.GIKKU JACOB. BY ADV. SRI.MILLU DANDAPANI FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/6/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No.1709 of 2008 ------------------------------------------------Dated this the 19[th] day of June, 2008** ## **ORDER** The petitioner in this case is aggrieved by the order produced as Anneuxre-A under which the Sub Divisional Magistrate (SDM) had directed the petitioner to hand over the possession of the property in dispute to the 3[rd] respondent within 3 days of receipt of the notice failing which further steps were threatened to be initiated against him. 2. There is a long story behind that order. Proceedings under Sec.145 of the Cr.P.C. were initiated by the SDM, Muvattupuzha, in respect of the dispute regarding possession between the petitioner and the 3[rd] respondent. The SDM by order dated 9/10/97 in M.C.No.26/96 passed the final order in that proceedings under Sec.145 of the Cr.P.C. declaring that the 3[rd] respondent is entitled to possession of the property and ## **Crl.M.C. No.1709 of 2008** -: 2 :- directing that property be handed over by the petitioner to him. Specific directions were issued to so hand over possession. 3. That order was challenged by the petitioner before the Sessions Court in Crl.R.P.No.41/97. The learned Sessions Judge by order dated 6/3/99 in Crl.R.P.No.41/97 interfered with the order passed by the SDM and did set aside the same. 4. The 3[rd] respondent came to this Court with Crl.R.P.No.308/99. In the said Crl.R.P. another Bench of this Court came to the conclusion that the decision of the learned Sessions Judge reversing the order of the SDM is liable to be set aside. The order was set aside. The decision of the SDM was restored. All the same, considering the fact that the petitioner herein had constructed a house and is residing therein, execution of the order of the SDM, it was held, can be initiated only after 6 months from the date of that order i.e., 25/9/07. 5. The petitioner appears to have gone to the Supreme Court. The Supreme Court, by order dated 11/2/08 in Crl.M.P.No.1124/08, dismissed the S.L.P. after condoning the delay in filing the same. 6. In terms of the order of this Court in Crl.R.P.No.308/99 possession must have been surrendered within 6 months i.e., by 25/3/08. The petitioner has not surrendered possession yet. ## **Crl.M.C. No.1709 of 2008** -: 3 :- The petitioner filed O.S.No.382/07 before the Munsuff's Court, Perumbavoor. An interim application was filed seeking a prohibitory injunction against dispossession. By order dated 24/3/08 in I.A.No.3080/07, the said petition was dismissed. The prayer for injunction was refused. The petitioner preferred C.M.A.No.12/08 challenging the said order and as per the order dated 7/4/08 injunction was granted against forcible eviction of the petitioner. The order reads like this: “Heard the counsel for the petitioner. Perused the appeal records. The respondents are restrained by an order of temporary injunction from forcibly evicting the petitioner from the plaint schedule property until further orders.” **7.** It appears that the said interim order created some confusion and clarification was sought and orders were passed on 11/4/08. The order passed on 11/4/08 reads as follows: “Advanced on application. The respondent seeks a clarification that the order is not against the R.D.O. The order of the court is clear. The respondent alone is restrained.” ## **Crl.M.C. No.1709 of 2008** -: 4 :- The impugned order is dated 03/4/2008. The learned counsel for the petitioner contends that in view of the order passed by the civil court restraining the 3[rd] respondent by a temporary injunction from forcibly evicting the petitioner from the property in question, the SDM is disentitled and disabled and cannot execute the final order passed under Sec.145 of the Cr.P.C. The learned counsel contends that notwithstanding the subsequent clarification on 11/4/08 that the order is not against the R.D.O. and the 3[rd] respondent alone is restrained, the SDM cannot proceed to execute the order. This Crl.M.C. was filed during the vacation and on 18/4/08, an interim stay was granted as prayed for. 8. Detailed arguments have been advanced. The learned counsel for the 3[rd] respondent contends that there is absolutely no merit in the prayer that the order of the SDM which has become final after tiers of challenge with the ultimate dismissal of the S.L.P. by the Supreme Court has to be executed and it would be harsh, insensitive and improper for the SDM now to take shelter behind the orders dated 7/4/08 and 11/4/08 by the civil court extracted above and refuse to execute the order. The SDM is bound to execute the order, the challenge against which has been proved to be unsuccessful finally. There may be a ## **Crl.M.C. No.1709 of 2008** -: 5 :- direction for expeditious execution of the said final order under Sec.145 of the Cr.P.C., it is urged. 9. The learned counsel for the 3[rd] respondent contends that the civil court's order is only against forcible election and it does not at all injunct the execution of the final order passed by the SDM under Sec.145 of the Cr.P.C. The order has to be read, understood and constructed reasonably. The embargo against the forcible eviction must certainly exclude the eviction in accordance with law. The eviction in execution of the order of the SDM does not fall within the Act prohibited under the temporary injunction and, in these circumstances, by no stretch of imagination can the order dated 7/4/08 be held as valid defence against execution of the order of the SDM. 10. The learned counsel for the 3[rd] respondent submits that the last trace, if any, on this aspect is laid to raise and removed by the specific clarification issued by the civil court which clearly shows that the order is only against forcible eviction and the execution of the order of the R.D.O. will not in any way be restrained by such order. 11. The learned counsel for the petitioner, on the other hand, contends with the help of precedents that this is not the manner in which the problem should be looked at. The learned ## **Crl.M.C. No.1709 of 2008** -: 6 :- counsel for the petitioner reminds this Court of the nature, quality and controls of the jurisdiction of the SDM under Sec.145 of the Cr.P.C. The learned counsel rightly contends that the scope of the enquiry and the nature of the order that can be passed under Sec.145 of the Cr.P.C. are limited and circumscribed. The SDM does not go into the question for title or right to possession. The SDM only deals with the question of actual possession on the date of the first order or dispossession within a period of 2 months prior to the order. Any order passed by the SDM under Sec.145 of the Cr.P.C. is subject to orders which may be passed by the civil court subsequently and in the wake of such orders passed by the civil court, the order of the SDM under Sec.145 of the Cr.P.C. will have to come to an end and pale into insignificance. The learned counsel for the petitioner, in this context, places reliance on the decisions of the Supreme Court in **Ranbir Singh v. Dalbir Singh and others** ((2002) 3 SCC 700); **Shanti Kumar Panda v. Shakuntala Devi** ((2004) 1 SCC 438) as also an earlier decision of a single Judge of this Court in **Abraham v. Kuriakose** (1994 (1) KLT 1015). 12. I have no quarrel with the proposition of law canvassed by the learned counsel for the petitioner. If there be a ## **Crl.M.C. No.1709 of 2008** -: 7 :- subsequent order of the civil court inconsistent and at variance with the order of the SDM under Sec.145 of the Cr.P.C. I have no trace of doubt left in my mind that it will be the order of the civil court which shall have to prevail. It is unnecessary to advert to the various portions of para-8 of the decision in **Ranbir Singh** and para-18 of the decision in **Shanti Kumar Panda** in detail. I accept the proposition of law canvassed by the learned counsel for the petitioner completely. 13. But the crucial question in this case is whether the interim order passed by the civil court is at variance with or inconsistent with or in conflict with or incongruent to the order passed by the SDM under Sec.145 of the Cr.P.C. It is herethat I disagree with the learned counsel for the petitioner. The orders dated 7/4/08 and 11/4/08 read in harmony and as a whole can leave no doubt that the civil court did not intend to restrain eviction in execution of the order passed under Sec.145 of the Cr.P.C. To my mind, there is no trace of doubt left if the orders dated 7/4/08 and 11/4/08 are read reasonably. Reasonably read, those orders only mean that the 3[rd] respondent cannot take law into his own hands and attempt to forcibly throw out the petitioner from the possession even though such eviction may be justified by the order passed under Sec.145 of the Cr.P.C. ## **Crl.M.C. No.1709 of 2008** -: 8 :- Eviction by due process of law remains unaffected. 14. The petition must fail not because of this Court has any disagreement on the question of law involved; but because on facts, it must be found emphatically that there is no incongruity disagreement or variance between the final order passed under Sec.145 of the Cr.P.C. and the interim orders passed by the civil court on 7/4/08 and 11/4/08. 15. The learned counsel still maintains that the decision in **Ibrahim.C.M. v. Kulangaraveettil KoyaMoideenkutty** (2007 (4) KHC 621) supports his contention that when the civil court is in seizin of the dispute involving the issue of possession of the property in question, initiation and continuation of the parallel criminal proceedings under Sec.145 of the Cr.P.C. would not be justified. 16. The learned counsel hence contends that in this case where before the order under Sec.145 of the Cr.P.C. is executed the civil court is in seizin of the disputed final order under Sec.145 of the Cr.P.C. should not be executed. 17. I am unable to agree with the learned counsel for the petitioner on this aspect also. It is not enough if a civil suit is merely filed to say that initiation or continuation of the proceedings under Sec.145 of the Cr.P.C. should not take place. ## **Crl.M.C. No.1709 of 2008** -: 9 :- The civil court must have made arrangements regarding possession. I repeat that the orders dated 7/4/08 and 11/4/08 only restrains the 3[rd] respondent from taking possession of the property using force, otherwise than in accordance with law. Those orders cannot be construed as prohibiting or restraining the execution of the final order passed under Sec.145 of the Cr.P.C. and any action in pursuance of such order. 18. The learned counsel for the petitioner further contends that forcible eviction referred to in the order dated 7/4/08 must take within its sweep any involuntary eviction even if that be in pursuance of the order passed under Sec.145 of the Cr.P.C. This contention, I repeat, is something that cannot be accepted in the light of the clear clarification given in the order dated 11/4/08. It is not legal dispossession which is injuncted by order dated 7/4/08 as clarified in the order dated 11/4/08, it is only forcible eviction which is prohibited under the interim order. The language of the orders dated 7/4/08 and 11/4/08 make it crystal clear that all involuntary dispossessions do not, and only forcible dispossession in violation of the due process of law, can fall within the embargo. 19. The learned counsel for the petitioner makes further requests. The learned counsel for the petitioner submits that he ## **Crl.M.C. No.1709 of 2008** -: 10 :- may be given an opportunity till 23/6/08 to decide whether he should prosecute this petition or not. The proceed ngs have commenced as early as in 1996. At the very fag end an interim order has been obtained from the vacation court o 18/4/08. The interim stay has continued to remain till this day. I am not persuaded to agree that any further opportunity need be given to the petitioner to decide whether the Crl.M.C. need or should be prosecuted. 20. The learned counsel for the petitioner finally makes two more reasons. He prays that the petitioner may be granted further time to go to the civil court and get the order further clarified. Alternatively, he requests that the petitioner may be granted time to approach the Supreme Court after it reopens and until then, there may be a direction not to take further action to execute the order under Sec.145 of the Cr.P.C. For the reasons stated earlier, I am not persuaded to accept these requests also. I am not satisfied that any further time deserves to be granted to execute the order under Sec.145 of the Cr.P.C. which has become final after a legal battle which spread for more than one decade. 21. The learned counsel for the petitioner submits that a civil suit having been filed and the civil court having passed ## **Crl.M.C. No.1709 of 2008** -: 11 :- orders like the one passed on 7/4/08 and 11/4/08, it must now be held that there is no threat or breach of the peace and therefore the order under Sec.145 of the Cr.P.C. does not deserve to be executed. I am unable to accept this contention also. Threat to breach of peace must certainly be there to invoke the jurisdiction under Sec.145 of the Cr.P.C. But it would be myopic to come to the conclusion that such threat must continue every day during the continuation of the proceedings; after the orders are passed; after the challenge of the orders come to an end and till the execution of the order. I am unable to accept the said contention that the threat of breach of peace must exist until the order is executed. The parties need not be aiming the swords at each other during this entire period to justify execution of the order under Sec.145 of the Cr.P.C. 21. This Crl.M.C. is accordingly dismissed. ## **(R. BASANT, JUDGE)** ## **Nan/** # **Crl.M.C. No.1709 of 2008** -: 12 :-