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Criminal Revision No. 5 of 1981, decided on 27^thApril, 1981.

-- S. 439 read with S. 145--Revision (criminal)-Dispute over possession of immovable property-Attachment-Civil Court already seized with matter and interim injunction issued in favour of peti tioners- Magistrate, held, could not make attachment of such property in exercise of jurisdiction under S. 145, Cr. P. C.--Order set aside in circumstance.-[Dispute over possession of immovable property].

Ghulam Habib v. State P L D 1972 Lah. 158 ; Ali Muhammad v. State 1976 P Cr. L J 43 and Qamaruddin v. State 1976 P Cr. L J 464 ref.

Shah Muhammad v. Haq Nawaz 1971 P Cr. L J 610 distinguished.

Muhammad Sadiq Khan for Petitioners.

Sher Muhammad Khan for Respondent.

Date of institution: 15th February, 1981.

This petition is directed against an order, dated 12th February, 1981 of the Court of Sessions Judge, Poonch, whereby attachment order made under section 145. Cr. P. C. by A. D. M., Rawalakot, relating to land measuring 20 Kanals and 15 Marlas, comprising Survey No. 979, situate in village Banjausa, Tehail. Rawalakot, dated 4th October, 1980, was maintained.

The relevant facts of the case are that Muhammad Akram made an application before the A. D. M., Rawalakot, on 30^thSeptember, 1980, under section 145. Cr. P. C. and cLalmed that land in dispute was in possession of the applicant. Non-applicants petitioners were trying to occupy the land forcibly and to fell the trees therefrom. There was an apprehension of breach of peace which necessitated attachment of the property. It was also mentioned in para. No. 1 of the application that the property in dispute was a subject of dispute to Civil Court and ad interim injunction was already issued in favour of the applicant, against the non applicants. The application was supported by an affidavit and copy of Khasra Girdawari. The learned Magistrate recorded the preliminary statement of Muhammad Akram, Muhammad Saeed and Muhammad Sharif and passed preliminary order and also made attachment of the property. This order was challenged in revision before the Sessions Judge the learned Sessions Judge agreed with the finding of the trial Magistrate and dismissed the petition on 12^thFebruary, 1981.

The sole point raised in the petition in that is presence of issuance of interim injunction by the cavil court. Magistrate had no jurisdiction to make attachment of the property. In support of this contention, Mr. Muhammad Sadiq relied upon P L D 1972 Lah. 158, 1976 P Cr. L J 43 and 1976 P Cr. L J 464. In reply, Mr. Sher Muhammad, counsel for the respondent contended that despite pendency of civil suit between the parties about the land in dispute and issuance of stay order the trial Magistrate was competent to make attachment on his satisfaction chat there was apprehension of breach of peace and also that matter was one of the emergency He cited 1971 P Cr. L J 610 and unreported cases of this Court Suleman v. Abdul Aziz and others decided on 28th April 1979. Rehmatullah Khan v. Ashfaq Hussain Khan and other, decided on 5^thJuly, 1978 and Mehdi Khan v. Muhammad Bashir decided on 22^ndApril. 1979.

It is a settled principle of law that proceedings under section 145, Cr. P. C. are transitional in nature. Magistrate is called upon through an application under section 1,45, Cr. P. C. to immediately redress the grievance of the applicant by making attachment of the property till the matter was finally settled on merits by civil Court. The provisions were invoked provided there was sufficient material to satisfy that there was a dispute over the immovable property and due to such dispute, there was an apprehension of breach of peace. Attachment was made only on satisfaction of the Magistrate that the matter was one of emergency. In the present case, it is admitted in para No. 1 of the application that land in question was already a subject of dispute in civil Court and also that Civil Court had issued interim injunction whereby defendants-non-applicants were directed not to interfere in possession of the pLalntiff applicant till further orders. Thus, the admitted state of facts is that civil Court of competent jurisdiction was already seized with the matter. By issuance of temporary injunction, civil Court had taken a step in the matter and directed the defendants not to interfere in possession of the pLalntiff. Under the circumstance, if defendants persisted to interfere in possession of the pLalntiff and disobeyed the direction of the Court, an adequate' remedy under Order XXXIX, rule 2 (3), C. P. C. could be invoked. Rule 2 (3) provides that in case of disobedience or breach of any such terms, Court granting injunction may order the property of person guilty of such disobedience or breach to be attached and may also order such person to he detained in civil prison for a term not exceeding six months, unless in the meantime release of such person was directed by the Court. Therefore, in presence of proper and legal remedy available to the pLalntiff, he could not invoke jurisdiction of Magistrate under section 145, Cr. P. C. so much so to get the property attached.

By exercising jurisdiction under section 145, Cr. P. C., the Magistrate not only interfered in the land, a subject of dispute before the civil Court, he also encroached upon the jurisdiction exercised under law by the civil Court. It is not the intention of law nor requirement of dispensation of justice that one Court should intervene in the jurisdiction of another competent Court so much so to pass conflicting orders. It is in view of this policy of law that it has been held in various cases that once the Court of competent jurisdiction seized jurisdiction over a matter, the other Court, Civil or Criminal, should refrain from interfering in the jurisdiction of such Court In the present case, as the civil Court was already seized with the matter and had issued interim injunction in favour of the pLalntiff, pLalntiff was deprived to volunteer before the Magistrate and offer him to attach the land in dispute. The unreported cases and 1971 P Cr. L J 610 relied upon by the learned counsel for the respondent are not of any assistance in the present case. In the aforesaid cases, facts were quite different and it was in the light of those facts that the learned Judges arrived at a conclusion that mere institution of civil suit did not deprive the Magistrate to act under section 145, Cr. P. C. in a fit case. In none of those cases, interim injunction was in existence when Magistrate acted under section 145, Cr. P. C. so much so to make attachment of the property. It is my considered view that once a subject of dispute was a matter sub-judice before the Civil Court of competent jurisdiction and interim injunction was issued, Magistrate could not make attachment of the property in exercise of jurisdiction under section 145, Cr. P. C. It is time that proposition may be settled once for all so that parties are not dragged in unnecessary and fruitless litigation.

In view of the aforesaid observations, the revision petition is accepted and attachment order passed by the trial Magistrate is set aside. However, trial Magistrate was at liberty to proceed under section 107/151, Cr. P. C. against the non-applicants, if so advised.

Revision allowed

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