This criminal revision filed by Shah Mohammad, petitioner, is directed against the interim order of the Additional District Magistrate, Gujranwala, dated the 1st of October 1969, passed by him under subsection (I) of section 145, Cr. P. C. On the initiation of the Local Police in. Regard to the existence of an imminent danger of breach peace over a dispute between the parties con--cerning to show- rooms situated in Gujranwala Town, of which the land admittedly belongs to Shah Muhammad, but the structure was allegedly raised by Haq Nawaz, respondent, a tenant of the former.
2. In support of the contention that the circumstances of the case did not justify the passing' of the impugned order by the learned Additional District Magistrate, learned counsel for the petitioner has contended before me that on the 19th of August 1969, as a result of an agreement between the parties, Haq Nawaz respondent had voluntarily surrendered the possession of the to show-rooms by having issued at Lahore a chit to his men at the premises in Gujranwala to deliver the possession thereof which was accordingly surrendered in favour of the petitioner. It is submitted that having gone back on this arrangement on the 21st of August 1969, the respondent filed a false report with the local police alleging against the petitioner criminal trespass and theft of certain articles belonging to him, but the allegations were found to be false by the local police. It is next submitted that on the 28th of September 1969, a fortnight after the petitioner had filed a declaratory suit against the respondent in the civil Court in respect of the possession of the disputed show-room when an ad interim injunction was also issued m his favour, the respondent again lodged a report with the local police, Annexure `E' on record alleging immediate apprehension of breach of peace, but the allegations were found to be false by Etamad-ud-Din, A.
S. I. Who visited the spot the same evening which clearly indicates that the dispute was sought to be deliberately raised by the respondent merely as a pretext after the civil Court had already issued an ad interim injunction against him which he was deliberately trying to flout by having recourse to proceedings under section 145, Cr. P. C. Relying On Asafa Sultana v. State and another (1969 P Cr. L J 1259) an authority by Ataullah Sajjad, J., it is contended that once the civil Court had regulated or at least provisionally taken a decision in regard to the possession of the disputed premises, the criminal Court should not have gone behind that order by invoking section 145, Cr. P.
C. Reliance is also placed in this regard on Haji Shamsuddin and others v. The State (PLD 1969 Kar..
515).
3. On the contrary, the allegations that the respondent voluntarily surrendered the possession of the to show-rooms in question have been categorically denied by his learned counsel in a statement at the. Bar supported by an affidavit sworn by the respondent himself. It is further submitted that if the respondent -had in fact entered into such an agreement with the petitioner, it does not stand to reason that only to days thereafter he would have gone to the extent of filing a false report against him with the local police alleging criminal trespass and theft of his articles. 'It is next submitted that although the local police having got mixed up with the petitioner has characterised the allegation of the respondent as false and baseless, the matter is not closed and is still under investigation with the Crimes Branch. It is further submitted that the same local police which under influence of the petitioner had earlier found the respondent's allegation of theft and criminal trespass etc. To be false had suo motu initiated proceed--ings under section 145, having come to the conclusion that a genuine apprehension of breach of peace over the possession of the disputed show-rooms did in the point of fact exist. In an answer to the legal contention that once an order of the civil Court is in the field, the criminal Court should stay its hand of the matter, several authorities have been cited, by the learned counsel in support of the proposition that the was jurisdictions, namely the ordinary civil jurisdiction in respect of declaratory suit, and the emergency jurisdiction of the criminal Court, are quite distinguishable and in the very nature of things a clash of jurisdictions is not only possible but has been clearly envisaged. Reliance is particularly placed on Dilbaz Khan v. The State and another (PLD 1959 Lah. 264) an authority dissented from by my learned brother Ataullah Sajjad, J. (in Asfa Sultana v. State and another and Agni Kumar Das v. Mantazaddin (32 C W N 610) a Full Bench authority China Tanbi v. Virappa (AIR 1937 Rang. 202), Motahar Khalifa v. Madhab Chandra (PLD 1968`Dacca 541) and Mohammad Akbar v. The State (PLD1968SC281.). It is argued that even a final decree by the civil Court in regard to possession in favour of one party or its entitlement thereto cannot be so construed as amounting to the ouster of the jurisdiction of the criminal. Court' under section 145, Cr. P.C. Lastly referring me to some rent receipt; and other documents in support of the assertion that a huge amount was invested by the respondent on raising structure of the to show-rooms, it is contended that the respondent could nor have voluntarily surrendered the possession of the premises unless he had been properly compensated and, therefore, existence of dispute, and one of a serious nature to, .Can be clearly spelt out from this background of the case.
It is submitted by Mr. Aftab Farrukh, learned counsel for the petitioner, that in case his contentions did not find favour with the Court, keeping in view the conflict of authorities on the issue, the matter may be referred to a larger Bench for full and final determination of the matter.
4. Before coming to the legal contention as to the ouster of the jurisdiction of the criminal Court under section 145; Cr. P. C. Where an order of the civil Court is already in the field, the first point to be considered is whether. In the background narrated above a dispute likely to cause, a breach of peace over the show--rooms in question was genuinely in existence so as to justify the initiation of proceedings by the local police under section 145, Cr. P. C. Which has a to-fold purpose of preventing a breach of peace which can even otherwise be taken care of by having recourse to proceedings under section 107/151, Cr: P. C: and also of putting back in possession a person found to have been forcibly ejected from the premises in question within to months next before the date of the passing of the preliminary order under section 145 (1), Cr. P. C. Irrespective of title. It is obviously a salutary provision of law which besides taking care of public peace has also provided an immediate and efficacious remedy for the rectification of a wrung and as such is both preventive as well as curative though certainly provisional in nature.
5. Having carefully considered the background of the dispute, prima facie I am of the view that the petitioner's assertion of having got into possession of the disputed premises, in pursuance of a so- called agreement, appears to be incorrect, not being in consonance with the natural probabilities of the situation. This has also been categorically denied by the respondent by means of an affidavit filed before me. Taking this into consideration as also the statement made by his learned counsel at the Bar, that he had invested a huge amount in raising a wall and had also paid the rent up to date, about which some documents were also sought to be produced before me, which apparently lend support to the post--tion taken up by the respondent, I am not inclined to believe that the respondent would have readily agreed to surrender possession in the absence of any detailed agreement in writing. It does not stand to reason either, that having once entered into an agreement he should have within to "days not only gone back on it but have also lodged a false report with the local police bringing allegations of criminal trespass and theft etc. Against the petitioner. Although there is no limit to dishonesty and people do sometimes stoop to utmost moral degradation as occasionally demonstrated in the records of the cases coming to the High Court, yet keeping in view all the concomitant circumstances, prima facie I am inclined to think that no agreement had been arrived at between the parties. While I am constrained to give such finding en a question of fact which is by no means conclusive, I am fully conscious that it is liable to influence the mind of the learned A. D. M. Who shall be called upon to make a final order under section 145, Cr. P. C.
Since, however, in the very nature of things, in order to determine the origin of the dispute, and particularly to find M. A. Whether the respondent has tried to make these proceedings merely Cheema a pretext for frustrating an ad interim injunction of the civil Court directing maintenance of status quo, it has become inevitable. It may nonetheless be made clear that the learned A. D. M.
Shall be at liberty to completely ignore and in fact well-advised to do so and should instead try to arrive at his independent conclusions on the basis of evidence to be led by the parties before him in support of their respective positions. From the above discussion, I am prima facie of the view that it was the respondent who, in the first instance, had the cause as well as the occasion to go to the local police. It also appears that notwithstanding the finding of the latter about the falsity of the respondent's allegations of criminal trespass etc, brought against the petitioner that investigation can-- not be deemed to be a past and closed transaction and as stated at the Bar before me, is still pending with some other investigating Agency. Since having once got into possession, on the basis of an agreement as asserted by the petitioner, or forcibly, as alleged by the respondent, the former had hastened to file declaratory suit in the civil Court which issued an ad interim injunction regarding the maintenance of status quo it cannot be reasonably inferred from the above sequence of events that it was the respondent who was trying to rake tip a dispute on a false pretext with a view to flout the order of the civil Court: Another relevant circumstance, which lends support to this view is the significant fact that the proceedings under section 145, Cr. P. C. Bad been initiated suo motu by the same police which had earlier given an adverse finding against the respondent in respect of the allegations of criminal trespass etc. Against the petitioner. I am in no manner of doubt, therefore, that it was a case of a genuine apprehension of breach of peace felt by the local police in respect of a dispute over the possession of the show-rooms in question within its jurisdiction. Again, a perusal of the impugned order passed by the learned A. D. M. Clearly shows that it proceeded on a careful consideration, of the police report and was made after proper application of mind in accordance with law.
6. As regards the contention raised on behalf of the petitioner, that the allegations of apprehension of breach of peace, as brought by the respondent in his report dated the 28th of Octo--ber 1969 (Annexure E) bad been completely falsified after investigation by Muhammad Etmad-ud-Din A. S. I.
Who visited the spot the same afternoon, as clearly indicated by his report No. 30, placed on the record, it may be observed that the respondent's report dated the 28th of October 1969, did refer to an imminent danger of breach, of peace, yet it had obviously nothing to do with the dispute over the possession of the show rooms. A perusal of the same clearly shows that the respondent apprehended that the petitioner proposed to interfere with his access to the to G. T. Road and block his passage by raising a con--struction as they had allegedly deposited bricks, cement etc. For the purpose. It was in respect of these allegations that Muhammad Etmad-ud-Din A. S. I. After having visited the spot reported that the petitioner's party had no intention of constructing a wall and had brought the material only to effect certain repairs of the residential portion of their house.
7. This brings us now to the important legal contention as to whether the circumstances of the case, where the civil Court was also seized of the matter, initiation of proceedings under section 145, Cr. P. C. Or their further continuation would be questionable under the law. In Mst. Asafa Sultana v. The 'State and another, an authority relied upon on behalf of the petitioner, my learned brother Ataullah Sajjad, J. Relying on Brahma Nath v. Sundar Nath (AIR 1919All.311), Imtiaz Ali Khan v. Sh.
Badar Din (AIR 1943 Oudh 410) and Jang Bahadur Singh v. Nizamul Haq and others (AIR 1947 Pat.
245) took the view that after the civil Court had given a decision about the right of a party to remain in possession of a property, the proceedings under section 145, Cr. P. C. Will be without jurisdiction. Normally, there can be no dispute- with the finding of his Lordship, as obviously, one should think that the criminal Court, whose func--tion under section 145, Cr. P. C. Is confined only to summary proceedings for the prevention of the breach of peace and restoration of possession to the person forcibly dispossessed from the disputed premises within to months next before, or in certain circumstances the appointment of a Receiver who has to give away to the Receiver appointed by the' civil Court as provided in section 146, Cr. P. C. Should apparently cease to have jurisdiction in the matter when the question of title and the right of a particular party to remain in possession has been finally settled by the civil Court. But situations could still arise where the exercise of jurisdiction. By the criminal Court under section 145, Cr. P. C. Being imperative in the interest of public peace, might be properly invoked by the police or a party concerned. For instance, in a case where the decree-holder has been able to obtain only a symbolic possession and the, judgment-debtor is still in actual physical possession of the subject-matter of dispute, and the former without having recourse to the legal procedure of the latter's ejectment wants to forcibly throw him out by breaking his head, for which the civil Court's decree is certainly no licence, the jurisdiction of a criminal Court under section 145, Cr. P. C. Could be legitimately invoked by the police With a view to prevent a breach. Yet another situation could be visualised wherein the decree-holder having got into possession of the disputed land in 'due course of law has been again forcibly thrown out by the judgment-debtor. He would be certainly within his rights to invoke the jurisdiction of the criminal Court under section 145, Cr. P. C. Which if deemed to be ousted would leave him high and dry with no other remedy available to him except that. Of knocking, once again, at the door of the civil Court which is proverbially slow to open. This argument against the ouster of the criminal Court's jurisdiction will a fortiori apply to a situation where the civil Court had just taken seisin of the matter and had passed an ad interim injunction in favour of the complainant who somehow having managed to get into possession has successfully sought the protection of the civil Court for upholding an illegal at. On the other hand, there could be a category of cases wherein the jurisdic--tion of the criminal Court under section 145, Cr. P. C. Might be invoked by a party in collusion with the police or otherwise, with a view to frustrate an order passed by the civil Court. Of course, the law has taken sufficient care to deal with cases of false pretext by insisting can the personal satisfaction of the Magistrate who has been placed under a statutory, obligation to give his reasons in writing for his satisfaction as to the existence of a dispute likely to result in breach of peace. In the case before my learned brother Ataullah Sajjad, J., the jurisdiction of the criminal Court under section .145, Cr. P. C. Was invoked merely to frustrate a final order of ejectment passed by the Rent Controller and as such his Lordship came to the conclusion and very rightly so, that it was not open to the police to initiate proceedings under section 145, Cr. P. C. The fact that his Lordship had clearly observed that the mere pendency of a civil suit will be no bar to proceedings under section 145, Cr. P. C. Would clearly indicate that his Lord--ship was fully conscious of the existence and necessity of invocation of the parallel jurisdiction of the criminal Court and also of the wisdom of this provision. Learned counsel for the petitioner, however, relied on the latter part of his Lordship's observation which reads :- "It is true that the mere pendency of a civil suit will be no bar to the proceedings under section 145, Cr. P. C., but when the civil Court regulated the possession by an interim order the jurisdiction of the Magistrate disappears:"
Earlier, in the same judgment while commenting upon the judgment of this Court in Dilbaz Khan v.
The State and another (PLD 1959 Lah. 264), Mr. Justice Ataullah Sajjad observed as follows :- "The learned counsel, however, laid emphasis on the observa--tion of the learned Single Judge in that case which tends to lay down that the existence of an injunction or stay order is no bar to the initiation of proceedings under section 145 of the Code and argued on this premises that even a final order was no bar to such proceedings. With greatest respect, I venture to dissent from the view expressed by the learned Single Judge in so far as it lays down that the existence of an injunction issued by a civil Court of competent jurisdiction will be no bar to the initiation of proceedings under section 145 of the Code. If this view is accepted there will be clash of jurisdiction which the Legislature never intends. It would mean that an interim order duly issued by a competent civil Court, who finds that a party has a prima facie right to possession 'can be nullified by the order of a Magistrate to take cognizance of a police report made under section 145 of the Code. The law has prescribed a different procedure for challenging the interim orders passed by the civil Courts and surely the Legislature never intends that the Magistrate should assume the powers of appellate or revisional tribunals vis-a-vis the civil Courts."
With the utmost respect, I find it difficult to endorse the view expressed by my learned brother Ataullah Sajjad, J. Obviously, the object and the scope of the jurisdiction of the civil Court in a declaratory suit under section 42 of the Specific Relief Act and the criminal Court under section 145; Cr. P. C. Are clearly distinguish--able. The relevant considerations for a civil Court, for granting or declining a prayer for ad interim injunction, are the position in regard to the actual physical possession at the the, the applicant's chances of success or the existence of a prima facie case in his favour, and the existence of balance of convenience or inconvenience in his favour. On the contrary, the criminal Court's jurisdiction under section 145, Cr. P. C. Is purely of an emergent nature to be invoked only in cases of emergency with a view firstly to prevent the breach of peace and secondly to provisionally (put back into possession the party forcibly ejected within to month next before the date of the passing of the preliminary order by criminal Court, and I have already referred to its salutariness as an immediate and efficacious remedy to undo a wrong committed by more influential party stronger, in men and money. If the mere passing of an ad interim injunction by the civil Court may be construed as amounting to a virtual ouster of the jurisdiction of the criminal Court, it would be nothing, short of placing a premium on an illegal at of highhandedness committed by an aggressor which possibility cannot be completely excluded from consider--ation. In my humble view, therefore, it cannot be laid down as general proposition of law that the moment the civil Court has passed an ad interim injunction, the criminal Court should stay its hands and divest itself of an important jurisdiction vested in it under the law with a definite purpose of urgent public importance.
8. In Dilbaz Khan v. The State and another, an authority by A: R. Changez, J., dissented from by my learned brother Ataullah Sajjad, J., the police initiated proceedings under section 145, Cr. P. C. When the case between the parties was already pending before the civil Court which had issued a temporary injunction in favour of the plaintiff and against the defendant. Relying on Mst. Makhana Devi v. Kamla Pat Ram (AIR 1935 Oudh 255) the learned Judge observed as follows :- "The learned counsel for the petitioner was' unable to cite any authority to the contrary. In fact, he frankly conceded this proposition. And' I have no doubt in my wind that the mere fact that a civil suit is filed in respect of the subject-matter of the dispute is by itself not sufficient to oust the jurisdiction of the Magistrate. By the filing of the civil suit, the dispute between the parties does not cease to exist and the likelihood of a breach of peace is not in any way lessened."
The conclusion arrived at by his Lordship was as follows :- "After giving a careful consideration to this aspect of the matter, I have arrived at the conclusion that the issue of a temporary injunction in the circumstances narrated above did not oust the jurisdiction of the Magistrate to take proceedings under section 145, Cr: P. C. If he felt satisfied that a dispute exited between the parties concerning the possession and dis--possession of the factory and it was likely to cause a. Breach of the peace."
9. The above conflict of views in my humble opinion appears to have been considerably, if not entirely, resolved in Agni Kumar Das v. Mantazuddin and another (A. I R, 1928 Cal. 610), a Full Bench authority by five Judges. The points of reference before the Full Bench were as follows:--
(1) Do the words `actual possession' in subsection (1), section 145, Cr. P. C., means actual personal physical possession even though wrongful, e. g. That of a recent trespasser in actual physical possession at the the of the proceedings under S. 145?
(2) Does the word `dispute' in the same subsection mean actual disagreement existing between the parties at the the of. The proceedings under section 145 even though the question as to the right to possession has already been decided by a civil Court?
(3) Has the law been correctly laid down in the case Ambar Ali v. Piran Ali AIR 1928 Cal. 344 or in the case Atul Hazra v. Uma Charan 33 1 C 822 and Akhoy Mandal v. Basir R.I AIR 1923 Cal. 176?
They were answered as follows :- "The word `actual possession' in subsection (1) of section 145, Cr. P. C. Mean actual physical possession even though wrongful, e. g. That of a recent trespasser in actual physical possession at the the of the proceedings under section 145 and the word `dispute' in the same subsection means actual disagreement existing between the parties at the the of the proceedings under section 145 even though the question as to the right to possession has already been decided by a civil Court."
Their Lordships expressed this view after considering almost the entire case-law up to date. Rankin, C. J., expressed himself rather strongly, as would be presently seen. While criticising the view expressed by Field, J., in Govind v. Abdool (6 Cal. 835) regarding the nature of a dispute which according to the learned Judge could be unreasonable and mala fide to be made merely a pretext, Rankin, C. J. Observed as follows.
"It cannot be said that unreasonable and mala fide disputes are less dangerous than others . . . . It matters little to a broken head, whether it was broken in good faith or bad faith."
Referring to "a jungle of decisions to be reduced to order", his Lordship observed that some authorities had "thrust into the section qualifications and conditions which were rejected by the letter and spirit of the provision". Likewise, criticising the view that it was the duty of the Magistrate to maintain the civil Court's decree, his Lordship observed that it was a statement not of principle, but of an error and the Magistrate was neither a Judge of titles nor a Bailiff of civil Court. It was also observed that a person failing before the civil Court might still claim to be in possession which could be disturbed only in due course of law and, as such, the dispute need not necessarily be a reasonable and bona fide dispute. It may be observed with the utmost respect that where a dispute has been deliberately raked-up by a party in collusion with the police or otherwise, merely to make it a pretext for the retention of its wrongful possession as elaborated by me earlier, the Court should decline to exercise its jurisdiction under section 145, Cr. P. C. As clearly indicated by the phraseology employed whereby the Magistrate is charged with the statutory obligation of satisfying himself after proper application of mind as to the existence of a dispute likely to create breach of peace. Yet another relevant observation made by Rankin, C. J., to which reference may be advantageously made was that a law-abiding and rightful owner pitted against a turbulent and lawless antegonist may have to go to a civil Court again and again if the criminal Court is deemed to have no jurisdiction after the civil Court has passed a final decree.
10. Having also carefully gone through the dissenting judg--ment of Mukherji, J., the conclusions arrived at by me are as follows:-
(1) the answer to the question as to when and under what circumstances the jurisdiction of the criminal Court under section 145, Cr. P. C. May be deemed to have been ousted, would depend on the circumstances of each particular case.
(2) that the to jurisdictions, namely, the one of the civil Court under section 42 of the Specific Relief Act and the other of the criminal Court under section 145/146, Cr. P. C. Are normally parallel and co- existent, the scope and object being quite distinguishable ;
(3) As a necessary corollary from this, it would follow that in certain circumstances even a clash of jurisdiction would be inevitable ;
(4) that where recourse to proceedings under section 145, Cr. P. C. Is subsequently had merely with a view to frustrate an ad interim order passed by the civil Court earlier in point of the, and circumstances do not warrant the inference that a g genuine apprehension of breach of peace is in existence over a dispute of land or water, initiation or continuation of proceed--ings would not be proper.
(5) that where on the contrary notwithstanding an order of the civil Court regarding an ad interim injunction being in the field the Magistrate is satified in regard to the genuine existence of apprehension of breach of peace regarding a dispute over land of water, he shall have the jurisdiction to move in the matter ; and
(6) that in cases where the civil Court has appoint-,d a receiver or has passed a final decision in regard to a party's entitlement to possession, there will normally be no occasion for the criminal 0iutt to have recourse to this jurisdiction which had bean conferred with a limited object and for a temporary period of brae ; particularly when the decree-holder hers sot into actual, physical possession, unless he is again threatened with ejectment by use of force and the provision under section 145, Cr. P. C. Is invoked by the decree-holder.
11. The upshot of the discussion, therefore, is that in the circumstances of .The case narrated above, the petitioner cannot successfully challenge the impugned order passed by the learned A. D. M.
After proper consideration of the suo motu police report with due application of his mind, merely because having got into possession on the 19th of August 1969, he had subsequently filed a declaratory suit on 28-9-1969 and also obtained an interim injunc--tion. The petition, therefore, fails and. Is hereby dismissed.
12. Before parting with this case, I would like to observe that so-called conflict of authorities has emanted more from the difference in the circumstances of the relevant cases than from any pronounced difference of views which even otherwise stands more or less resolved by authorities some of which have been discussed by me. I do not therefore consider it necessary to ask for the constitution of a larger Bench.