The petitioner in this petition under section 561-A, Cr. P. C. Has challenged the order dated 9th July, 1981 whereby in proceedings under section 145, Cr. P. C. a direction for sealing of the house in dispute was passed by the learned Magistrate and the order dated 28th July, 1981 whereby the application of the petitioner was dismissed, taking the view that cognizance taken of the proceedings under section 145, Cr. P. C. Was justified in law.
2. The proceedings under section 145, Cr. P. C. Were initiated on the complaint of Mst. Ghulam Fatima and her son Muhammad Jamil, the present respondents. The petitioner had submitted an application to the learned Magistrate seeking withdrawal of the order dated 9th July, 1981 inter alia on the ground that cognisance could not have been taken under section 145, Cr. P. C. As the respondents as per their own assertions stood dispossessed from the said house more than two months prior to the making of the preliminary order dated 9th July, 1981. In this connection reference was made to the F. I. R. Dated 17th May, 1981 lodged by Mst. Ghulam Fatima with Police Station Burki, Lahore as in the said F. I. R. The allegation made was that Fazal Din present petitioner had dispossessed Mst. Ghulam Fatima, etc. From the house in dispute 10/12 days earlier to the lodging of the report. Muhammad Jamil, the other respondent admittedly had filed a suit for possession of the house in dispute on 21 May, 1981. In this suit again it was asserted that the dispossession took place 15 days prior to the institution of the suit. It will thus appear that even according to the respondents' own showing, their dispossession was completed on 5 or 7 of May, 1981. The proceedings under section 145, Cr. P. C. Started on the complaint of the respondents on 28th June, 1981 and the learned Magistrate passed the preliminary order of attachment on 9th of July, 1981, i.e. About two months and four or two days after the dispossession of the respondents.st th th
3. The only question for consideration in this petition is whether the learned Magistrate could take cognizance of the proceedings under section 145, Cr. P. C. When the dispossession of the petitioners had taken place more than two months before making of the preliminary order of attachment. It was contended that in these circumstances if the proceedings are allowed to continue, it will result in wastage of public time as no effective order can be passed by the Magistrate in view of the provisions of subsection (4) of section 145, Cr. P. C. Learned counsel referred to Muhammad Sultan v. Allah Ditta and another (1976 P Cr. L J 95), Debendra Chandra Sarkar v. Khodaram Sangma and others (PLD 1951 Dacca 59) and Ghulam Mustafa v. Abdul Karim and others (PLD 1964 Lah. 9
4. The submission made by the learned counsel for the petitioner is correct as under subsection (4) of section 145, Cr. P C. All that a Magistrate is required to decide is that which of the parties, if any, was at the time of making of the preliminary order, in possession of the property in dispute. By virtue of the first proviso to the said subsection, a party which has been dispossessed within two months of the preliminary order can also be treated as if it was in possession on the date when the preliminary order was made. The order with regard to restoration of possession has to follow the finding so recorded. It will, therefore, be noticed that subsection (6) empowers a Magistrate to restore possession to only that party which was or which was to be deemed to be by virtue of the first proviso in possession on the date of the preliminary order. A Magistrate has no jurisdiction to put in possession a party which was not in possession within the meaning of subsection (4).
5. In the instant case as already indicated according to the case of the respondents themselves, they were dispossessed by the petitioner from the house in dispute about two months and 4 days prior to the making of the preliminary order. This being so, the learned Magistrate even after full inquiry would not be competent to put the respondents ir, possession of the house in dispute. Thus no useful purpose will be served by allowing the Magistrate to complete the proceedings by recording evidence. It is unfortunate that though the respondents had filed the complaint under section 145, Cr. P. C. On 28th June, 1981, i.e. Within two months of their dispossession, yet the learned Magistrate took almost 11 days in completing the preliminary proceedings and passing the preliminary order of attachment of the house in dispute. The preliminary proceedings were allowed to linger on in complete ignorance of the provisions of section 145, Cr. P. C. And so the very purpose of these proceedings stood frustrated. The Magistrate before whom such complaints are lodged should know that the proceedings under section 145, Cr. P. C. Relate to the possession of a party on a particular date and the person who proves his possession on the relevant date or who is to be deemed to be in possession by virtue of the first proviso to subsection (4) is to get the order of the Court. This date is to be determined with reference to the date of making of the preliminary order and as such no delay should be allowed to occur in making the preliminary order, wherever a case is made out for taking action under section 145, Cr. P. C. As otherwise there is a possibility of the proceedings being rendered infructuous. It was held in Debendra Chandra Sarkar v. Khodaram Sangma and others, "the wording of the proviso are to be construed literally, and if the party is found to have been forcibly and wrongfully dispossessed on a date outside two months next before the date of the order, then the proceedings cannot be maintained". A Court by its acts of commission or omission is not to render the proceedings infructuous as was done in this case as in the instant case the proceedings were allowed to linger on, with the result that the preliminary order of attachment was passed on date when more than two months had already been elapsed sine dispossession. It was argued that the proceedings were initiated by the respondents within two months of the dispossession and if the Magistrate has made the preliminary order on a date beyond the period of two months, the delay caused by the Court cannot be made basis for refusin relief to the petitioner as it is well established that ---act of Court--- is no to prejudice any one.
Reliance was thus placed on the maxim ---actus curiae neminem gravabit'. This maxim however, does not apply in view of the statutory provisions contained in section 145, Cr. P. C. Mores when there is no provision for allowing extension of the period of two months laid down in the said section, whatever the cause of delay may be. This view of the Nagpur High Court was adopted by the then Sind and Oudh Chief Courts, the Lahore and the Allahabad High Courts See Muhammad Ali Yar Muhammad v. Shamsul Haq Pir Zialdin Shah and others (AIR 1940 Sind 33), Mahmood Beg and another v Ehsan Beg (A 1 R 1941 Oudh 515), Meharban Singh v. Bhola Singh and others (AIR 1935 All. 35) and Ghulam Hussain and others v. Sajawal Shah and others (AIR 1933 Lah. 143). In a recent case, Full Bench of Allahabad High Court, Ganga Bux Singh v. Sukhdin (A 1 R 1959 All. 141) held that a Magistrate is not justified in treating or empowered to treat the party who had been dispossessed more than two months before the actual date of his preliminary order under section 145(1), Cr. P. C.
As being in possession on the date of his order under proviso (1) to section 145(4). This is so even where the Court itself is responsible for delay. The principles of equity or the doctrines of nune pro tune and actus curiae neminem gravabit, cannot be applied to an order passed by a Magistrate under section 145(4). No doubt contrary view was taken by Madras High Court in the case of Chunchu Narayana and others v. Karrapati Kesappa (AIR 1951 Mad. 500) but this view was dissented by the learned Judges of Orissa and Andhra High Courts in cases reported in Gangadhar Singh and others v. Shyam Sunder Singh (AIR 1958 Orissa 153) and Padmaraju Subba Raju and others v. Padmaraju Koneti Raju and another (AIR 1955 Andhra 99). As far as the superior Courts of Pakistan are concerned, the view which has prevailed throughout is that the provisions of section 145, Cr. P. C. Are to be construed literally. Reference may be made to Ch. Muhammad Siddiq v.
Sahibzada Sahibyar Khan (PLD 1963 B J 26), Naiwabuddin v. Abdul Ghafoor (1968 P Cr. L J 335) and Mst. Zohra Bai alias Patma Sughra v. The State and another (1973 P Cr. L J 317).
For the reasons given above, the present proceedings, therefore, cannot continue and the same are accordingly quashed.