This dispute relates to Ambassador Hotel, Jinnah Road, Murree, 'This property was initially transferred to respondent No. 1, Malik Mehraj Din who according to the petitioners later on surrendered his rights therein in their favour through an agreement of association which was allegedly approved by the Deputy Settlement Commissioner by his order dated 18-9-1971. On the basis of the said agreement of association P. T. O. Was issued in favour of the petitioners on the same date. According to the petitioners they have been in occupation of the premises in question since thereafter. According to the petitioners the hotel in question was leased out by them to Haji Safdar etc. On 8-8-1973 through an agreement of the same date, photostat copy of which has been placed on record. The lease was to take effect from 1st of August 1973 and was to remain in force till March 1974. The consideration money as agreed upon was Rs. 10,000 and half of it was received by the petitioners.
2. After about a year of the issuance of the P. T. O. In favour of the petitioners, respondent No. 1 instituted a civil suit for declaration to the effect that the agreement of association was false, fictitious and without consideration and as such the P: T. O. Based thereon was without any legal effect. He also prayed for permanent injunction by way of consequential relief restraining the petitioners from claiming any title in the said property. Respondent-No. 1 also made an application under Order XXXIX, rules 1 and 2, C. P. C. For the maintenance of status quo and for the grant of temporary injunction in his favour restraining the petitioners who were defendants in the suit from dispossessing him from the property in question. It is admitted that the civil suit was instituted on 14-9-1972 and the learned Administrative Civil Judge, Rawalpindi also dealt with the said application on the first date of bearing and passed the order maintaining status quo. The learned trial Court thereafter issued notice to the defendants in relation to the application for the grant of temporary injunction, local Commissioner was appointed at the request of parties in order to find out as to who was in actual possession of the property. After receiving his report and hearing the arguments of the parties thereon, the learned trial Court maintained his previous order maintaining status quo as the parties were at variance as to who was in exclusive or in part possession of the property in question. The petitioners/defendants were restrained from alienating the property in any manner till the decision of the suit.
3. This order of the learned Civil Judge was challenged in appeal by the present petitioners before the learned District Judge, Rawalpindi, who accepted the same on 31-7-1973 and set aside the order of the learned trial Court. This order of the learned District Judge was challenged later in Civil Revision No. 545 of 1973 by respondent No. 1 which was admitted for hearing by my learned brother Karam Elahee Chauhan, J. On 16-8-1973. His Lordship further maintained status quo meanwhile subject to notice. The Civil Revision has been dismissed by my learned-- brother Aftab Hussain, J.
On 11th of December 19'3:
4. Mr. Khan Zaman, Sub-Inspector Police Station, Murree made a report to Mr. Muhammad Nawaz Hasrat, Magistrate 1st Class, Murree on 31st of August 1973, vide Annex `A' certified copy of the said report, stating therein that Haji Muhammad Safdar etc. Residents of Ambassador Hall, Murree had occupied room No. 2 (Billiard room) as well as Hall of the' Ambassador Hotel which was owned by Malik Mehraj Din resident of the Hotel. Both the parties had quarrelled over the possession of the Hotel and were intending to come to blows. It was stated therein that the parties had already resorted to the civil litigation in this regard. It was ultimately prayed in the report that in view of the circumstances existing on the spot. Hall Room of the Ambassador Hotel as Well as its Room No. 2 (Billiard room) may be ordered to be sealed immediately under section 145, Cr. P. C. The impugned order was passed by the learned Magistrate on the same date on the ground that there was great danger of breach of peace to the public at large as many persons on their side were trying to take forcible possession of the Hall room of the Hotel. As a consequence of the order Hall room of the Hotel was attached and sealed under the said provision of law.
5. The main question to be examined in this case is as to whether any order under section 145, Cr. P.
C. Could be passed by the learned Magistrate when an order regulating the possession of the property passed by the High Court on 16-8-1973 was in force. The existence of the said order on the date when the order was passed by the learned Magistrate has not been denied by any of the parties. If a property is already subject-matter of an order of civil Court regulating its possession during the pendency of suit then the criminal Court will not have jurisdiction to deal with the same.
If a civil Court has passed an order regulating the possession of a property then the same would fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. Action, however, may be taken under sections 107 and 151, Cr. P. C. To prevent breach of peace but no order for attachment of the property can be passed. Reliance in this respect can be placed upon Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470) and Imam Dad Khan v. Syed Muhammad Ilyas (1971 SCMR 581). In the former case a suit was filed for declaration that the plaintiff was tenant of the respondent and for permanent injunction restraining the defendant from interfering with his possession. During the pendency of the suit an ad Interim injunction was granted maintaining, status quo i.e., possession of the plaintiffs was not to be disturbed. This order of the 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 said order was held by their Lordships of the Supreme Court to be clearly illegal and was set aside. The relevant portion of the judgment is reproduced below for benefit:- "The provisions of the two Codes set out above have a material bearing on the question whether a Magistrate can, under section 145, Cr. P. C. Of the Criminal Procedure Code, act in violation of a decree or the order passed by a civil Court during the trial of suit. It becomes apparent at once that the proceedings initiated under sec--petition 145, Cr. P. C. Are subordinate to a decree or order passed by a 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 themselves 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 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 through a receiver appointed by it and the receiver appointed by a Magistrate must make over possession to the receiver appointed by a civil Court subsequently. 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. Can 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."
6. In the present case as discussed above status quo order was passed by the High Court in the civil revision on 16-8-1973 much before the impugned order was passed on 31-8-1973. The order maintaining status quo was very much in force as admitted by the learned counsel for the parties at the time when the impugned order was passed. The order of the High Court clearly meant regulating the possession of the property during the pendency of the civil revision. This order was in relation to the very property which subsequently became subject-matter of the impugned order.
This being the position the jurisdiction of the learned Magistrate under section 145, Cr. P. C. Was barred to pass any order in relation to possession of the property in question. This legal position has also been accepted to be correct by the learned counsel for the respondent. He has, however, argued that after, the decision of the civil revision on 11th of December 1973 the order maintaining the status quo regulating the possession of the property ceases to exist and thereafter the impugned order was ipso facto revived. I am afraid this contention has no force. The impugned order was passed in relation to a given situation which caused danger for breach of peace' at particular time. Since the order regulating possession of the property passed in civil revision was in force, therefore, no order under section 145, Cr. P. C. Could be passed in relation to the same subject-matter. The main question to be examined in the present case is as to whether the learned Magistrate was competent to pass the impugned order. The above discussion would show that he was not competent to pass any such order, and since the same was passed on account of the arising of a particular situation therefore, the said order would not be ipso facto revived after the decision of the civil revision.
7. The learned counsel for the respondent has further submitted that since the proceedings out of which the impugned order has arisen have not been sought to be quashed therefore, the case may be remanded to the learned Magistrate for fresh decision. I am afraid this prayer cannot be accepted. The question of remand of the case would, not arise as the impugned order, as discussed above, was passed on account of a given situation at a particular time. If such situation arises again the learned Magistrate may pass necessary order in this behalf if the law so warrants.
8. For the aforesaid reasons, criminal miscellaneous is accepted and the impugned order dated 31st of August 1973 passed by the Magistrate Ist Class, Murree, is hereby quashed being illegal, without jurisdiction and of no legal effect.