Holding

When title is undisputed and the dispute is only over possession, a civil suit does not bar the exercise of jurisdiction under Section 145 of the CrPC, and the dropping of Section 107 proceedings cannot be the foundation for dropping Section 145 proceedings.

Summary

The appellant, a retired engineer, claimed possession of an independent portion of a house that he and his son co‑owned. He filed criminal proceedings under Sections 107 and 145 of the Criminal Procedure Code and also a civil suit for an injunction. The Section 107 proceedings were dropped, and the Sub‑Divisional Magistrate consequently dismissed the Section 145 application, a decision upheld by the High Court on the ground that the pending civil suit barred criminal jurisdiction. The Supreme Court allowed the appeal, holding that where title to the property is undisputed and the only issue is possession, the existence of a civil suit does not preclude the exercise of jurisdiction under Section 145, and the dropping of Section 107 proceedings cannot justify dropping Section 145 proceedings. The Court set aside the lower courts' orders and directed that the appellant be restored to possession of the disputed portion.

Issues considered

When does a pending civil suit bar the continuation of criminal proceedings under Section 145 of the CrPC?
Can the dropping of preventive proceedings under Section 107 of the CrPC serve as a basis for dropping possession proceedings under Section 145?
Did the High Court err in holding that the civil suit prevented the appellant from invoking Section 145 jurisdiction?

Legislation cited

Code of Criminal Procedure, 1973s. 107, s. 145

Subjects

Civil suitCriminal jurisdictionSection 145 CrPCSection 107 CrPCPossession disputeTitle disputeInjunctionPreventive justiceProperty lawFamily dispute

Judgment

A PRAKASH CHAND SACHDEVA
v.
STATE AND ANOTHER

DECEMBER 14, 1993

B [S. RATNAVEL PANDIAN AND R.M. SAHAI, JJ.)

Criminal Procedure Code 1973-Ss. 107, 145. Filing of Civil Suit and
. dropping of proceedings under S.107-Held: When there is no dispute of title
between the parties, the pendency of the Civil suit was no bar to continuance
C of proceedings under S.145 of the Criminal Procedure Code.
A dispute between S and his son regarding the occupation of an
independent portion of the house owned by S leading to S's ouster led to
the filing of proceedings under S.107 & S. 145 of the Criminal Procedure
Code. S also filed a Civil Suit in which an Order granting an injunction
D of status quo was made. Proceedings under S.107 were dropped. However,
the Magistrate as a consequence of dropping of proceedings under S.107
also dropped the proceedings under S. 145. The High Court affirmed the
Sub-Divisional Magistrate's order holding that having resorted to a Civil
Suit, the Appellant could not continue proceedings under S.145. Against
, E this, the appellant approached the Supreme Court by Special Leave.

Allowing the Appeal, this Court

HELD : Normally a Civil Suit prevents invoking of criminal Juris·
diction, but this is applicable to a suit based on title. However, when the .....:
F title and the right to possession are not in dispute and the only dispute is
as to the question of possession, then the dropping of proceedings under
S.107 can not be the foundation for dropping of proceedings under S.145.
(954-G, 955-C)
Madhu Limaye & Anr. v. Sub-Divisional Magistrate Monghyr & Ors.,
G AIR (1971) S.C. 2486, relied upon.
Ram Sumer Puri Mahant v. State of UP & Ors., AIR (1985) S.C. 472,
distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
H 763 of 1993.
952
SACHDEVAv. STATE[SAHAI,J.) 953

From the Judgment and Order date<l 15.3.93 of the Delhi High Court A
in Crl. M (M) No. 451 of 1993.

Arvind Minocha for the Appellant.

R.C. Pathak for the Respondents.
B
The Judgment of the Court was delivered by

- R.M.SAHAI, J. Ingratitude of a son, compelled his father, the appel-
lant, a retired Assistant Engineer aged 77 years to knock the doors of the
Courts, both, civil and criminal, to enter into possession of his own house.
As this by itself was not sufficient, the respondent son in the affidavit, filed . C
in this Court, has accused his father of, 'abusing process of Court' on 'false
and fabricated allegations'. He has even taken the plea that his father was
'trying to overawe him' an instead of seeking partition of the property as
it was ancestral and he was co-owner of it, he was harassing him.
D
Dispute arose about an independent portion in house no. G-39,
Jangpura Extension, New Delhi. It was in occupation of a tenant who
admittedly vacated in February 1992. The appellant claims to have oc-
cupied it. The claim is supported by a letter written by the tenant to the
appellant on 14th April 1992 to the following effect:
E
"I have vacated your Ground Floor Flat at G-39, Jangpura Extn.
today and possession of the same was handed over to your good-
self.

Please issue me a no dues certificate at the earliest.
F
Thanking you and with regards,"

The authenticity of the letter is not disputed. But its effect had been
attempted to be diluted by the respondent by claiming that it was written
to harm him as he got the house vacated. The respondent claims that the G
appellant never resided in the house in dispute. May be so. Why the
appellant who was residing in another house No. 15/239, New Moti Nagar
of his own with family of his other son, who died, decided to shift to the
house in dispute, is immaterial. An owner of the house could at his option
reside at his one or the other house. Even if it is assumed that the disputed
house is ancestral the appellant was not required to explain the reason for H
954 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A his decision to come and live in it. His right to reside could not be dis11uted.
But no sooner he came the. problem started. And according to the appel-
lant his report to the police for misbehaviour of his son and his family
members went unheeded. That the father. had to approach the police
authori~ies against his own son is indeed painful. But that speaks volume
B about the son. The inaction of the police on which reliance was placed by
the son is explainable but not understandable. It does not help the respon-
dent. It only adds to the helplessness of the appellant. In June 1992 it is
alleged when he and his wife went to Jaipur to see their ailing daughter,
they to their shock, on return after four days, found that their belongings
had been removed, the portion had been locked and they were treated
C harshly and abusively. And that too by his family members. What must have
been his feeling is not easy to comprehend but as said by Shakespeare in
King leare, 'how sharper than is serpent tooth it is to have a thankless
child'. Failing to understand the, 'cause in Nature that make these hard
hearts', the appellant approached the criminal court by way of proceedings
D under Sections 107 and 145 Criminal Procedure Code. He also· filed a civil
suit for injunction in which. status quo order was granted. But status quo
of what? He had already been thrown out of possession. It is not necessary
to comment on the merits of these proceedings. However, proceedings ·
under Section 107 were dropped, and in our opinion rightly, as the nature
E of these proceedings 'are of preventive justice' as held by this Court in
J.(adhu Limaye & another v. Sub-Divisional Magistrate, Monghyr & others,
AIR (1971) SC 2486. It is to be invoked when any person is likely to commit
a breach of peace or disturb public tranquillity. But the order dropping the
proceedings under Section 107 led the Sub-Divisional Magistrate to drop
the proceedings under Section 145 Cr. P.C. as the proceedings under
F Section 107 having been dropped there was no apprehension of breach of .~
peace. The High Court while agreeing with this reasoning added that the
appellant having sought civil remedy the proceedings under Section 145
could not be continued~

True, a suit or remedy in civil court for possession or injunction
G normally prevents a person from invoking jurisdiction of the criminal court
as observed by this Court in Ram Sumer Puri Mahant v. State of U.P. and
others, AIR (1985) SC 472, 'particularly when possession is being examined
by the civil court and parties are in a position to approach the civil court
for interim orders such as injunction or appointment of receiver for ade-
H quate protection of the property during pendency of the dispute. Multipijc-
SACHDEVAv. STATE [SAHAI, J.) 955

ty of litigation is not in the interest of the parties nor should public time A
be allowed to be wasted over meaningless litigation.' The normal rule is as
stated by the Court in Puri's case. But that was a suit based on title. And
that could be decided by civil court only. That ratio cannot apply where
there is no dispute about title. When claim or title are not in dispute and
the parties on their own showing are co-owners and there is no partition
one cannot be permitted to act forcibly and unlawfully and ask the other B

. to act in accordance with law. Where the dispute is not on the right to
possession but on the question of possession the Magistrate is empowered
to take cognisance under Section 145 Cr.P.C. Neither the High Court nor
the Sub-Divisional Magistrate cared to ascertain if the respondent had any
claim to lawfully prevent the appellant from entering into his own. house. C
The proceedings under Section 107 are for public peace and tranquillity
whereas under Section 145 relates to disputes regarding possession be-
tween parties concerning any land or water or boundaries thereof. There-
fore, dropping of proceedings under Section 107 could not furnish
foundation for dropping the proceedings under Section 145. Nor the law
laid down in Pu,ri's case could result in rejecting the application filed under D
Section 145 of the Cr. P.C. There being no dispute of title between the :
appellant and respondent the only claim to be decided was if the appellant
had been forcibly or wrongly dispossessed within two months next before
the date on which the information was received by the Magistrate and the
High Court instead of deciding this crucial aspect, failed to exercise its
jurisdiction as the appellant had sought the remedy in ciyil suit without E
applying the mind if that decision was in any way helpful for dropping the
proceedings. In law, therefore, the order passed by two courts below
cannot be maintained.

In equity and justice the appellant has still stronger case. On own F
showing of the respondent the property is ancestral. The behaviour of the
son is cruel and unjust. The learned counsel for the respondent during
arguments stated that the son was willing to keep his father with him. What
a charitably disposed son the respondent appears to be. He is Willing to
permit the father to live with him but not agreeable to permit him to occupy
a separate portion which was in his possession. In the light of the averments G
made by the son in the affidavit filed in this Court and the alleged
misbehaviour by him and his family members this appears to be only an
excuse for preventing the father from living in peace in the end of his life.

In the circumstances we allow this appeal, set aside the order passed H
956 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A by the High Court and the Magistrate dismissing the application filed
under Section 145 Cr.P.C. and direct that the appellant shall be placed 'in
possession of the green portion forthWith, shown in the map filed by the
appellant the correctness of which was not disputed even if third party
interest had been created with the help of the police, if necessary. We hope.
that the respondent shall not create any further hindrance in peaceful living
B of his father. The map filed by the appellant is made a part of this order.
Any observation that has been made shall not be taken as binding in any
civil dispute between parties.

M.M. Appeal allowed.