Find a Lawyer

__‑ S. 145 read with Ss. 107 & 151‑Dispute on possession of immovable property‑Tube‑well in dispute originally in possession of respondent and electric bills received and paid by him‑ Later on not receiving electric bills respondent coming to know of change having been made from his name to that of petitioner,, his brother‑Petitioner thenceforward claiming to be sole owner of tube‑well‑Criminal and civil litigation between parties resulting in agreement allegedly executed on bebalf of respondent in favour of petitioner purporting sale and delivery of tube‑well to petitioner‑Relations between parties getting worse and petitioner still persisting in taking possession of tube‑well‑Held : Sufficient material existed to summon petitioner as respondent in proceedings under S. 145 and grounds also existed showing imminent danger of breach of peace‑Interim attachment of tube‑well and appointment of receiver not illegal so as to vitiate proceedings‑No prejudice caused to petitioner‑Pendency of proceedings under S. 107/151 Not vitiative of proceedings and order under S. 145.‑[Dispute as to possession of immovable property].

Muhammad Ishag Chaudhry and another v. Nur Mahal Begum and others, P L D 1961 S C 426 ; Sarghan Shah and others . Jafar Khan and others:

1972 S C M R 562 ; Irshad Mahmood and others v. Masood Khan and others P L D 1969 Lab. 74 ; Noor Muhammad and others v. The State and 2 others P L D 1971 Lah. 76 ; Abdur Rahim v. Malik Wahid Bakhsh and another 1971 P Cr. L J 241 ; Madar Sardar v. Klnu Gazi and 7 others 1970 P Cr. L J 643 and Akhtar Ali v. State and another P L D 1970 Lab. 450 rel.

S. M. Almas for Petitioner.

Ch. Waheed Saleem for Respondent No. 1.

Shaheen Ayab for the State.

Dates of hearing i 10th and 11th July 1975.

This is a revision under section 439, Cr. P. C. by Ghulam Mohammad against the order, dated 1‑4‑1975, passed by the District Magistrate, Multan whereby he rejected the revision of Ghulam Muhammad under section 435, Cr. P. C. before him against the order, dated 16‑10‑1974, passed by the Assistant Commissioner/ Magistrate 1st Class, Khanewal in the proceedings under section 145, Cr. P. C.

2. On 7‑8‑1974 the police of Police Station, Mian Channu, District Multan submitted report under section 145, Cr. P. C. in the Court of Assistant Commissioner/Magistrate 1st Class, Khanewal. The report was that a tube‑well in Killa No. 21 of square No. 44 in the area of Chak No. 42/15‑L, District Multan was jointly owned by Muhammad Ismail respon dent No. 1 and Ghulam Muhammad petitioner. The key of chat to tie‑well was in possession of Muhammad Ismail respondent but Ghulam Muhammad petitioner in his effort for to obtain possession of that tube‑well had attempted all means to coerce and intimidate Muhammad Ismail respondent due to which a report for proceedings under section 107/151, Cr. P. C. against the parties had been filed in the Court on 14‑7‑1974 and was pending decision. It was stated that since the tube‑well was jointly owned by the parties and Ghulam Muhammad petitioner was trying ille gally to dispossess Muhammad Ismail in order to cause him harm it was necessary that proceedings under section 145, Cr. P. C. be taken against the parties. On 8‑8‑1974 the learned Magistrate ordered that the case be registered and Ghulam Muhammad petitioner be summoned through notice for appearance on 10‑9‑1974. After avoiding appearance in spite of service on two dates Ghulam Muhammad petitioner appeared in the Court of the learned Assistant Commissioner on 8‑10‑1974. On 10‑10‑1974 Ghulam Muhammad petitioner as well as Muhammad Ismail respondent filed their respective written statements supported by copies of certain docu ments and their counsel addressed arguments on 14‑10‑1974. Tne learned Magistrate disposed of the proceedings by his order passed on 16‑10‑1974 wherer y he ordered the attachment of the tube‑well and directed its delivery on Superdari/management to the Glrdawar and Halqa Patwari till the decision of the case. During that management the Superdar was directed to provide irrigation water to both the parties on payment of usual charges which were to be , deposited as amanat to be paid to the party who was ultimately found entitled to the possession of the tube‑well. The revision filed by Ghulam Muhammad petitioner against that order was dismissed by the learned District Magistrate, on 1‑4‑1975. Thereafter, the petitioner filed a revision against the order, dated 1‑4‑1975, passed by the District Magistrate in this Court.

3. The learned counsel for the petitioner has argued that the failure of the learned Magistrate to give specific ground about the existence of emergency before assuming jurisdiction under section 145 (1), Cr. P. C. has rendered the taking of cognizance by him without jurisdiction and that even the final order does not speak of apprehension of breach of peace; that the order of attachment of the tube‑well could not be made when proceedings under section 107/151, Cr. P. C. had been taken and were pending against the parties and the civil Court had entertained the suit; and that due to joint possession of the tube‑well of the parties no proceedings could be taken under section 145, Cr. P. C. The learned counsel for the petitioner has cited some case law in support of his above submissions. He has urged that the learned District Magistrate did not advert to it although it involved the question of assumption of jurisdiction by the learned Magistrate; that his approach that petitioner should get a receiver appointed by the civil Court is misdirected ; that the learned District Magistrate did not advert to the vires of the orders passed by the learned Magistrate and failed to decide the matter involved before him.

The learned counsel for respondent No. 1 has controverted the argu ments of the learned counsel for the petitioner and has also cited case‑law to the effect that if the Magistrate fails to give grounds and his order is not a speaking order it is only an irregularity which is curable provided the grounds otherwise existed and that proceedings under section 145, Cr. P. C. can be taken because those under section 107/151, Cr. P. C. are indepen dent proceedings. He has further submitted that all disputes including those relating to joint possession are covered by proceedings under section 145, Cr. P. C. He has also submitted that the learned District Magistrate under section 435, Cr. P. C. had no jurisdiction to set aside the order of the learned Magistrate and could only refer and recommend the case to the High Court, therefore, the only order in the field is that of the learned Magistrate against which no revision has been filed in this Court. The learned counsel for the State had adopted the arguments of the learned counsel for respondent No. t and has submitted that the order of the learned Magistrate is sustainable in law and on facts and that he was acting on the police report.

4. In the case of Muhammad Ishaq Chaudhry and another v. Nur Mahal Begum and others (P L D 1961 S C 426) particulars werestated for assuming jurisdiction in proceedings under section 145, Cf. P. C. It was held that the mere omission to state the grounds upon which the Court is satisfied in the initial order under section 145, Cr. P. C., does not necessarily make an order also without jurisdiction. The view taken therein was maintained in Sarghan Shah and others v. Jafar Khan and others (1972 S C M R 562). In the aforementioned two cases and also in the cases of Irshad Mahmood and others v. Masood Khan and others (1971 P Cr. L J 241), Noor Muhammad and others v. The State and two others (4), and Abdur Rahim v. Malik Wahld Bakhsh and another (1971 P Cr. L J 241) it was held that failure of the Magistrate to give grounds which if otherwise existed made the order of the Magistrate only defective and curable and not without juris diction, that if the order passed was not a speaking order it was an irregu larity curable, that failure to mention ground of emergency in the final order was curable and that the proceedings under section 107/151 are independent and during the pendency of those proceedings the case under section 145, Cr. P. C. can proceed. In the case of Madar Sardar v. Kinu Gazi and 7 others (1970 P Cr. L J 643) it was held that merely because the Magistrate did not take into consideration danger of peace at the stage of passing final order his order was not vitiated and in the case of Akhtar All v. State and another (P L D 1970 Lah. 450) it was held that if the Magistrate did not advert to evidence the trial before him was not vitiated.

Ghulam Muhammad petitioner is the elder brother of Muhammad Ismail, respondent No. 1. At one time they had joint holdings in squares Nos. 44, 45 and 37 of Chak No. 42/15‑.L, Tehsil Khanewal and mutually agreed to instal a tube‑well in order to develop those lands as a result of which Muhammad Ismail respondent No. 1 mortgaged his land in square No. 37 and obtained the loan for a sum of Rs. 10,000 from the agricultural Development Bank with which the tube‑well in dispute was installed in square No. 44, Krlla No. 17 which fell in the share of Ghulam Muhammad petitioner in private partition. Electric connection and bills were also ori ginally in the name of Muhammad Ismail, respondent No. 1 which arrangement continued till June 1974 and thereafter, when Muhammad Ismail respondent No. 1 did not receive electric bills he made enquiries and came to know that the electric connection had been changed from his name' to that of his brother, Ghulam Muhammad petitioner, who received electric bills and bad started claiming that he alone was owner of the tube well. This resulted in criminal and civil litigation between them and its transpires that an agreement deed, dated 14‑12‑1973, allegedly executed on. behalf of Muhammad Ismail respondent No. 1 in favour of Ghulam Muhammad petitioner disclosed that respondent No. 1 had sold it an delivered possession of the tube‑well to the petitioner. Consequently th relations .between the parties got worst and the police had to intervene and take prdceedings under section 107/151, Cr. P. C. but the petitioner still persisted in taking the possession of tube‑well due to which danger of breach of peace continued and according to the material on the record before the learned Magistrate imminent danger ekisted which warranted the attachment of the tube‑well and appointment of the Girdawar and the Halqa Patwari to manage it in the manner done by him. Evidently that management has to continue till such time as the parties get the receiver appointed from the civil Court. .There was sufficient material on record to show that emer gency existed at the time the Court summoned the petitioner as respon dent in proceedings under section 145, Cr. P. C. and similarly grounds existed showing imminent danger of breach of peace which caused the passing of interim order of attachment of the tube‑well and appointment of superdari to manage it. No illegality exists to make the proceedings before the learned Magistrate vitiate in law. No prejudice has been caused to the petitioner who was not in any manner incapable of understanding the proceedings under section 145. Cr. P. C. and in filing the written statement in that behalf. The pendency of proceedings under section 107/151, Cr. P. C. also does not vitiate the proceedings and order of the learned Magistrate under. section 145, Cr. P. C. The petitioner has not challenged the order of the learned Magistrate, dated 16‑10‑74, in revision before this Court. The order, dated 1‑4‑1975, passed by the learned District Magistrate, which has been challenged by the petitioner in this Court, is not in continuation of the order passed by the learned Magistrate.

The contentions of the learned counsel for the petitioner have no force.

5. As a result of above discussion the revision is dismissed.

s. A. H. Appeal dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.