1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of the West Pakistan High Court, Karachi Bench, in Criminal Revision Application No. 101 of 1969,: dated the 23rd July 1969. By this order, a learned Single Judge of the High Court vacated the interim order dated the 7th July 1969 and dismissed the application for stay of the pro--ceedings under section 145, Cr.
2. P. C.
3. The dispute between the parties is in respect of Survey Nos. 928, 960, 963, 96.1, 962, 964, 965, 937, 938, 940, 1136, 1144 and 1210 of Deh Gahno Kalhoro, Taulks and District Khairpur Mirs. The appellants' case is that they purchased these lands between 14th May 1968 and 20th August 1968 and were put in their possession by their predecessor-in-title. It appears that respondents Nos. 1 and 2 were interfering with the possession of the appellants. Thereupon, the appellants filed six suits in the Court of Civil Judge, 1st Class, Khairpur Mirs for declaration and injunction of their right and title in the said property. Between 27th August 1968 and 21st February 1969, the appellants succeeded in getting interim injunction from the said Court against respondents Nos. 1 and 2. According to the appellants they were in continued possession of the aforesaid lands from the date of their purchase, and the respondents were restrained by temporary injunction to interfere with their possession. It appears that respondent Syed Mohammad Ilyas filed a com--plaint under section 145, Cr. P. C. In the Court of Additional District Magistrate. Khairpur, on the allegation that there was a likelihood of breach of peace between the parties in respect of the said lands. By order dated the 30th June 1969, the learned Additional District Magistrate allowed the said. Application and ordered the attachment of the crops and appointed the settlement Mukhtiarkar of Khairpur, to act as Receiver, to auction the said crops and to deposit its proceeds in the Government Treasury.
4. The appellants challenged this order in Criminal Revision Application No. 101 of 1969 in the High Court of West Pakistan, Karachi Bench, and obtained stay order on the 7th July 1969, from Muhammad Hayat Junejo, J. The matter came up for hearing before Muhammad Haleem, J., who vacated the aforesaid interim stay order on the 23rd July 1969. The appellants have challenged this order in this appeal before us.
5. Leave was granted by this Court to consider the question whether a criminal Court has jurisdiction under section 145, Cr. P. C. To withdraw the subject-matter of a civil suit pending before a competent Court of Civil Jurisdiction.
6. In support of the appeal, Mr. Nathulal, learned counsel for the appellants, has contended that a case in which a civil Court is already seized with the subject-matter of dispute and has passed an order regulating possession thereof or granted temporary injunction restraining a opposite-party from interfering with the possession of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. In support of his ,con--tention the learned counsel has relied on a decision of this Court in the case of Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470). In that case, a suit was filed by S against H for declaration that he was tenant of H and for permanent injunction restraining H from interfering with his possession. During the pendency of the suit an ad interim injunction was granted by the Court for maintaining status quo i.e. Possession of S was not be d1sturbed. This order of civil Court was in operation when the Additional District Magistrate passed an order under section 145, Cr. P. C. And directed the police to seal the disputed premises. The order of the Additional District Magistrate, in the circumstances, was held by this Court to be clearly illegal and was set aside. In this connection this Court observed as under :- "The provisions of the two Codes set out above have a material bearing on the question of whether a Magistrate can, under section 145 of the Criminal Procedure Code, act in violation of a decree or the terms of an order passed by a civil Court during the trial of a suit. It becomes apparent at once that the proceedings initiated under section 145, Cr. P. C. Are subordinate to a decree or order passed by civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning `land' or `water'. These proceedings though concerning the subject-matter of dispute between the contending parties, do not concern them--selves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore of a transitory nature. That is why a Magistrate will not appoint a receiver if the property in dispute is already in the possession of a civil Court though a receiver appointed by it and the receiver appointed by a Magistrate must make over possession to the receiver appointed by a civil Court sub--sequently. Section 145 therefore proceeds on the premises that the Magistrate will cease to deal with the possession of `land' or `water' in dispute before him as soon as a civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr. P. C. And bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo. A contrary position will indeed lead to anomalous results."
7. Mr. Nasiruddin, learned counsel for respondent No. 1, has not disputed that the appellants have obtained ad interim injunction and status quo orders in six civil suits from the Court of Civil Judge, Khairpur, against respondent No. 1 in respect of the property in dispute. He contended that the injunction orders in these suits have been obtained on wrong facts and allegations. The property in dispute has been transferred to respondent No. 1 by the Settlement authorities and he is entitled to its possession. According to the learned counsel, the Additional District Magistrate, Khairpur was perfectly competent in taking action under section 145, Cr. P. C. And in appointing a Receiver to seize the crop and to deposit the sale proceeds in the Government Treasury. The learned counsel was unable to d1stinguish the above-mentioned decision of this Court. On the other hand, Kazi Akhtar Aft mad, learned Advocate-General of Sind, has supported the appeal and has conceded that the appeal may be allowed.
8. It appears to us that as the disputes between the parties were subject-matter of civil suits and ad interim injunctions and status quo orders have been passed against the respondents in these suits the criminal Court was not competent to interfere with e the possession of the appellants in respect of the property in dispute. On the view taken by this Court in the above-mentioned case, the order of the criminal Court was without jurisdiction. It was illegal and therefore, is liable to be set aside.
9. It may be noted that the High Court has only vacated the stay order. Ordinarily, we would have remanded the case to the High Court for decision of the Criminal revision petition in the light of the decision of this Court in Shah Muhammad v. Haq Nawaz and another. But the appellants have prayed in this appeal that the order of the learned Additional District Magistrate be set aside, by this Court in order to avoid further litigation between the parties. The prayer of the appellants appears to us to be reasonable. We have gone through the order of the learned Additional District Magistrate dated the 30th June 1969. It is clear from his order that it was brought to the notice of the learned Magistrate that dispute between the parties in respect of the property in dispute was pending in the civil Court but in spite of this he assumed jurisdiction in the matter and passed the impugned order. In our opinion, after the civil Court has issued injunction and status quo orders against respondent No. 1, the learned Additional District Magistrate was not competent to appoint a Receiver of the crops and to issue a direction for its sale. . We would, therefore, hold that the" impugned order was an abuse of the process of law. Accordingly, it is set aside.
10. Respondent No. 2 has appeared in person. His contention is that Survey Nos. 933 and 941 are gardens and Survey No. 837 is bunjar land. They have been permanently transferred to him by the Settlement authorities and entries in R. L. 11 and in the Revenue records have been mutated in his name. He further contended that in Writ Petition No. 197-RJ1958, the West Pakistan High Court, Lahore, has confirmed these numbers by order dated the 3rd June 1958, in his favour. According to him these survey numbers are not the subject-matter of the dispute in the proceedings taken by respondent No. 1 under section 145, Cr. P. C. And he has been wrongly impleaded a party to these proceedings. This position has not been disputed by Mr. Nathulal, learned counsel for the appellants. He has, there--fore, dropped respondent No. 2 from the array of respondents in the present appeal. We would, therefore, dismiss the appeal against respondent No. 2. Respondent No. 2 will get Rs. 51 as costs of these proceedings.
11. In the result, subject to the above remarks, the appeal is allowed against respondents Nos. 1 and 3.
3. It is dismissed against respondent No. 2.