1. The factual background of this case is as follows. There exists dispute between, the applicants Mohammad Hussain and Mohammad Ramzan on one hand and respondent Rahim Bux on the other hand in respect the house built on plot No.33 Survey No.B-7-4-R.B. 11/1731, 221 Gwali Lane No.3, Rattan Talaow, Karachi. Both the parties are real brothers. The respondent No.2 who is eldest brother is said to be living separately from the applicants in Liaquatabad and as such he has no right over the disputed premises. However, following the government policy to regularize the unauthorized possession of the government land, the respondent No.2 has started making false claim in respect of the said property. It is further alleged that the said respondent has even instituted a Civil Suit No.2542 on 17-7-1985 in the civil court, Karachi for declaration, and permanent injunction in respect of the property in dispute. In the said suit he was alleged to have moved an application for interim injunction which was allowed with direction of the civil Court that the parties will maintain status quo. Subsequent to passing of this order the respondent No.2 attempted to take forcible possession of the disputed premises whereupon the applicants submitted an application to the S.H.O., Preedy Police Station who instituted proceedings under section 107/117, Cr.P.C. Against both the parties in the Court of S.D.M. Civil Lines, Karachi. Despite the action taken by the police as above the respondent and his family members made further attempt to trespass into the disputed premises whereupon the applicants once again reported the matter to the said Police Station which has registered a case under section 448/506, P.P.C. Vide F.I.R. No.186/85. Having failed to achieve his object the respondent No.2 made a complaint under section 145, Cr.P.C. In the Court of S.D.M. Civil Lines, Karachi who thereupon attached the disputed premises. As a result of the attachment ordered by the said Court the applicants and their women folk and small children have been rendered shelterless and are passing their time on footpath. The applicants have, therefore, filed this petition with prayer that criminal proceedings instituted by the respondent No.2 under section 145, Cr.P.C. Be quashed alongwith consequential and incidental orders passed in the said proceedings.
2. I have heard the arguments of the learned counsel for both the parties at great length and have also gone through the relevant documents.
3. The main argument advanced by the learned counsel for the applicants was that if the civil Court of competent jurisdiction is already seized of the dispute relating to possession of immovable property and has passed an order regulating the possession thereof, the criminal Court cannot assume jurisdiction under section 145, Cr.P.C. In respect of such dispute. In the instant case the respondent Wo.2 had already gone in civil suit with regard to the disputed property and the civil Court had even passed an interim order directing the parties to maintain status quo, therefore, the contention of the learned counsel was that the proceedings under section 145, Cr.P.C. Filed by the said respondent were without jurisdiction and the order of attachment passed in course the said proceedings was ab initio void. In support of his arguments he placed reliance on several authorities. The first case referred to in this connection is reported as Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 wherein it was held:-- "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 tnreatening 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."
4. The next case relied upon on behalf of the applicants is of Shah Nawaz and 3 others v. Sub- Divisional Magistrate, Naushero Feroze and 6 others PLD 1974 Kar. 124, wherein the view taken by learned Single Judge (Z.A. Channa J.) is expressed as follows: "The main parties to the section 145, Cr.P.C. Proceedings thus appear to be the same as in the civil suit and even in the order for maintenance of status quo. The proceedings under section 145, Cr.P.C.
5. Are in the nature of stop-gap arrangements and must in disputes as to immovable property yield to orders of the civil Courts, which alone are competent to determine questions of title and right of possession to immovable property. Of course, the mere fact that civil suit is filed or is pending in regard to the subject-matter of the dispute is not by itself sufficient to oust the jurisdiction of the Magistrate under section 145, Cr.P.C. But where a civil Court has passed an order in regard to any immovable property which is in dispute, whether such order was passed before or after the initiation of proceedings under section 145, Cr.P.C., the Magistrate in respect of the said pro--perty have to be subservient thereto."
6. The third case in the line is of Shah Muhammad v. The State and 5 others 1983 SCMR 1173 wherein the Supreme Court was pleased to observe: "The view taken by the learned Magistrate was in confirmity with the dictum of this Court in the case of Shah Muhammad v. Haq Nawaz PLD 1970 SC 470 wherein it was laid down that a case in which a civil Court is already seized of the subject-matter of dispute and has passed an order regulating possession thereof falls outside the jurisdiction of a Magistrate under section 145 Cr.P.C.- -- The fourth case in the same connection is reported as Mehr Muhammad Sarwar and others v. The State end others PLD 1985 SC 240 wherein it was held: "It requires to be mentioned that in an inquiry under section 145, Cr.P.C. All that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470, where the possession of the same property has been regulated by a civil Court, even through a temporary injunction, the matter falls outside the jurisdiction of the learned Magistrate under section 145, Cr.P.C."
7. The legal position that crystalizes from the above authorities is that if a civil suit is filed in respect of a dispute relating to possess4on of immovable property and thereby civil Court becomes seized of the subject-matter of the dispute and it passes an order by way of interim or permanent injunction regulating the possession of such immovable property, the criminal Court will have no jurisdiction under section 145, Cr.P.C. To deal with possession of the said immovable property and the order already passed by the criminal Court in respect thereof must yield to the order of the civil Court.
8. "5. That under the circumstances, the complainant filed a Civil Suit No. 2542 of 1985 in the Court of Xth Civil Judge (South). Karachi and succeeded in obtaining tire stay order in his favour."
9. It is clear from the above para that the respondent No.2 has himself admitted that he had filed civil suit prior to filing of the case under section 145, Cr.P.C. And that the civil Court had passed status quo order as an interim relief in the said suit. However it was argued by the learned counsel for the respondent that mere pendency of the suit in respect of the disputed, property was not enough to oust the jurisdiction of the criminal Court. In his opinion the criminal Court is debarred from exercising its jurisdiction under section 145', Cr.P.C. Only when the civil Court seized of the disputed subject-matter has passed an effective order regulating the possession of the disputed immovable property. As the status quo order passed by the civil Court, according to the learned counsel, was silent as to which of the parties was in possession of the disputed property and therefore it could not be said which party was prohibited from interfering with whose possession, such order could not be construed as regulatory order regulating the possession of the disputed property. In support of his contentions, the learned counsel relied upon Shera and others v. Mst.
10. Fatima and another 1971 SCMR 449 in which there was a dispute between the parties over immovable property and the suit in respect of the said property was pending and injunction was already issued by the civil Court not to disturb possession of the specified party pending decision of the suit. The other party filed 145, Cr.P.C. Proceedings and. Managed to get the property attached by the Magistrate. The party in whose favour the civil Court has issued injunction order produced a certified copy of that order before the Magistrate who thereupon vacated the attachment order directing 'possession to be delivered to the person in whose favour the civil Court had passed injunction order. It was held that the order of the Magistrate vacating the attachment order and directing restoration of possession was quite valid.
11. Another case on which the learned counsel for the respondents placed reliance is of Anwar Javed and another v. Ikramul Haq and 3 others PLD 1977 Lah. 100 wherein it was held: "There can be no dispute with the proposition expounded in these authorities that where the possession of an immovable property has been regulated by a civil Court, recourse to section 145, Cr.P.C is out of question.
12. Where the rights have been determined by a civil Court or where the possession of a party is established and does riot attract the proviso to subsection (4) of section 145, Cr.P.C. The proper course for the Magistrate would be to proceed under section 107, Cr.P.C. And not under section 145, Cr.P.C. Proceedings under section 107, Cr.P.C. Are intended only for the security of public peace and not for enabling one of the parties to recover possession of the property."
13. 1984 SCMR 804 relied upon by the learned counsel for the respondent, there was a dispute over landed property which was allegedly purchased by the petitioner. In the suit of pre-emption filed against the said property the civil Court passed an interim order prohibiting the petitioner from making any construction on the disputed land. However the plaintiff filed an application under section 145. Cr.P.C. Whereupon the Magistrate attached the property restraining the parties from interfering with it. The High Court dismissed the application of the petitioner under section 561-A, Cr.P.C. For quashment of the proceedings under section 145, Cr.P.C. The learned Supreme Court held: "The learned counsel now appearing before us could not point but any infirmity in the order of the learned High Court Judge, nor could he show that proceedings under section 145, Cr.P.C. Were not competent. Hence, we find no merit in this petition which is, accordingly, dismissed."
14. It is true that status quo order passed by the civil Court, in respect of the disputed property' does not specify in so many words that any particular party is in possession of the disputed property, and that the other party is restrained from interfering with possession of the first mentioned party.
15. Nevertheless if the parties are directed to maintain the status quo; it means that they will not do any thing or take any step .So 'as to disturb or alter the position as it stood at the time of passing of the said status quo order: It may be observed that for the purpose of deciding the application for interim stay the pleadings of the parties and the material produced in support of the same are generally considered as guide. It would be noticed that in the instant case both the parties claim to be in possession of the property in dispute. As claimed by him, if the respondent No.2 had really been in possession, he was to continue in possession the strength of, the status quo order.
16. Consequently he need not have filed complaint under section 145, Cr.P.C. However If he apprehended danger from the other side namely applicants and felt that there was likelihood of breach of peace, he could have instead moved police or Court for taking action under section 107, Cr.P.C. Thus at least he had no reason to resort to filing of complaint under section 145, Cr.P.C. That- in spite of tree status quo having been issued in the respondent's favour, if he instituted to case under section 145, Cr.P.C. Clearly show that his case was not, based on firm footing inasmuch as that he was not in possession of that disputed property. That is why he perhaps rushed up to the criminal Court and instituted proceedings under section 145, Cr.P.C. Obviously the purpose of these proceedings is to have the question of possession of immovable property determined until any such order is passed by the civil Court of competent jurisdiction. Since the civil Court by' issuing status quo order had allowed the party in possession of the property to continue in the possession, in my opinion the criminal Court had no jurisdiction to interfere by entertaining 145 Cr.P.C. I proceedings and passing attachment order. I cannot agree with the view that the status quo order passed by the civil Court was not in the nature of regulatory order, regulating the possession of the disputed property. In obedience of that order both the parties were bound to refrain from taking any such step as to alter the position as it stood prior to passing of the status quo order.
17. Consequently the party in possession was required by the order to continue holding the possession. Since in consequence of the status quo order the parties were restrained to make any move in respect of the disputed property, the party in possession could hold possession peacefully.
18. Despite that if any disturbance was apprehended, the concerned authorities could have been moved for taking action under section. 107, Cr.P.C. Therefore, I am clear in my mind that even after passing of status quo order by the civil Court, the jurisdiction of the criminal 'Court under section 145, Cr.P.C. Is barred.
19. Assuming for the sake of argument that the status quo order could not be regarded as regulating the possession of the disputed property, the order, dated 15th November, 1985 passed by the civil Court under Order XXXIX, rules 1 and 2, C.P.C. Obviously clinched the whole matter as it superseded the order of the criminal Court, if any, with regard to the said property. The operative part of the said order is to the following effect: "The plaintiff prima facie failed, to prove his possession over the suit plot and al'. Documents on record go against him. The plaintiff therefore, failed to make out prima facie case of-grant of temporary injunction in his favour. However during arguments learned Advocate for the defendant agreed that defendant will not sell or alienate the suit property till final disposal of the suit. I, therefore, grant temporary injunction only to the extent that defendant will not dispose of the suit plot by sale till final disposal of the suit. The remaining prayer of the plaintiff is not allowed in view of the above discussion."
20. As is indicated in the above order the plaintiff (respondent] No.2) has failed to prove that he is in possession of the disputed property. Therefore the civil Court declined to restrain the other party l the defendants (applicants) from interfering with his possession. The same order shows that defendants (applicants) claim to be in possession of the disputed plot. Since the plaintiff (respondent) is held not to be in possession of the said plot, it is logical to assume that applicants' possession of the plot has been recognized and that is why the civil Court refused to prohibit them from interfering with possession of the disputed plot. However the learned counsel for the respondent thought that even the above order dated 5th November, 1985 could not be taken to regulate the possession of. The disputed property. In other words he meant to say that despite that order of the civil Court the criminal Court can go ahead with the proceedings under section 145, Cr.P.C. And decide about possession of the disputed property. The argument is patently absurd.
21. The civil Court held in the interim order that the plaintiff (respondent No.2) is not in possession of the disputed plot, the criminal Court cannot give its own verdict on the same issue namely possession of the disputed property. It does so its order will either confirm the civil Court's order as to the plaintiff's possession of the plot or will be inconsistent with the same. In either case the criminal Court has no jurisdiction to pass any such order.
22. For above reasons the civil Court being seized of the subject --matter of the dispute and having passed its order with regard to possession of the property inasmuch as that the respondent No.2 is not in possession of the disputed plot, there appears no justification for continuation of the 145 Cr.P.C. Proceedings. The order of the civil Court has got to be implemented. It seems the civil Court by its order has not placed any, restraint on the applicants who claim to be in possession Of the property. Therefore they can enjoy undisturbed possession until final disposal of the suit. If there is still likelihood of breach of peace it would obviously be from the respondent's side. It is admitted that proceedings under section 107, Cr.P.C. Are pending against both parties. If so, these proceedings will take care of the possibility of the breach of peace and the Court will take appropriate action against the party who 'is found to be bent upon breaking the public' peace.
23. For above reasons there is no justification for continuing the proceedings under section 145, Cr.P.C.
24. Which are accordingly quashed.