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Criminal Miscellaneous No.420 of 1983, decided on 15th August,1983.

---Ss.561-A 8 145--Quashing of criminal proceedings--Civil litigation between parties pending prior to initiating proceedings under section 145, Cr.P.C. and respondent suppressing in his complaint fact of pendency of civil suit and undertaking given by him in civil Court not to dispossess accused except in due process of law--Proceedings under section 145, Cr.P.C. held, abuse of process of Court--No immediate apprehension of breach of peace existing so as to warrant proceedings or passing order under section 145; Cr. P.C.--Proceedings quashed.

P L D 1982 Lah.459 ref.,

Attaullah Khan for Applicant.

Nemo for Respondent No. 1.

Imam Buksh for the State.

Respondent No.3 in person.

Date of hearing: 15th August, 1983.

The respondent, who is present in person, stated that he has nothing to do with the premises in question.

The applicant has filed the above petition for quashment of proceed ings pending against him in the shape of case No.99/83 under section 145, Cr.P.C., in the Court of learned S.D.M. Civil Lines, Karachi as well as for quashing order 29th March, 1983 by which the premises in question situated at Plot No. 6 PR-2/13, Old Survey No-9, Street F-3, Magzine Lines Plaza, Saddar, Karachi were sealed under section 145 (1), Cr.P.C. on the complaint filed by respondent No.1, on the facts and grounds mentioned in the above petition.

The learned Advocate for the applicant abovenamed submitted, that prior to initiating of the proceedings under section 145, Cr.P.C. by respondent No.1, applicant had filed a suit No.723/83 in the Court of XXXI Civil Judge, at Karachi for permanent injunction against respondent No.1 and had also moved an application under Order XXXIX, rules 1 and 2, C.P.C. for temporary injunction, pending disposal of the said suit, as per Annexure 'E'. According to the learned Advocate for the applicant respondent No.1 appeared before the learned Civil Judge on 24th February,1983 and gave undertaking as per Annexure 'D' not to dispossess the applicant, except in due process of Law and consequently the applicant did not press his injunction application, in view of the undertaking.

According to the learned Advocate for the applicant, the suit in question is pending and the undertaking is in full force. However, according to the learned Advocate for the applicant, the respondent No. 1 by suppressing these facts filed a complaint under section 145, Cr.P.C. in the Court of Assistant Commissioner and S.D.M. Civil Lines, Karachi, on 28th March, 1983 as per annexure 'G' and obtained orders under section 145(1), Cr.P.C. dated 29th March 1983, by which the premises in question were sealed by the Assistant Commissioner and S.D.M. Civil Lines, Karachi.

The learned Advocate for the applicant submitted, that on coming to know about these proceedings applicant moved an application dated 7th May, 1983 for .dropping off the said proceedings in view of the pending civil suit between the parties and undertaking given by respondent No. l in the said suit. It seems that respondent No. 3, who was also made a party in the said proceedings, under section 145, Cr.P.C. also moved a similar application for dropping off the said proceedings. The learned S.D.M., Civil Lines by his order, dated 7th May 1983 dismissed both these applications as per Annexure 'B' and consequently the applicant has moved the above application, for quashment of the said proceedings.

The learned Advocate for the applicant in support of the above petition submitted, that in view of the Civil Suit No.723/83 pending between the applicant and respondent No.1 and in view of the undertaking given by the respondent No.1 in the said suit on 24th February,1983, the initiating of the proceedings under section 145, Cr.P.C. by respondent No.1, amounted to the abuse of the process of the learned trial Court. The learned counsel further submitted, that on account of undertaking given by respondent No.1, the possession of the premises in dispute are to be governed by the said undertaking and consequently the order of attachment dated 29th March,1983 passed by the learned Assistant Commissioner and S.D.M. Civil Lines, Karachi, is liable to be quashed as

the said proceedings were mala fide instituted by the respondent No.l. The learned counsel has relied upon commentary of Oswald Law of Contempt of Court as well as case reported in P L D 1982 Lah.459.

The learned counsel appearing for State in view of the above facts on record, submitted that he was supporting the above petition for

quashment.

It is now 11.45 a.m. but still respondent No.1 and his counsel are called absent and there is no application and/or request for adjournment of above petition and as such proceed to hear the above petition on merits, as the premises in question have remained sealed since long and in view of order dated 25th July,1983 of this Court, by which early hearing was ordered.

I have carefully considered the above submissions made by the learned counsel for the applicant and gone through all the annexures that have been filed n the above petition as well as through R 8 P of learned trial Court.

It is clear from Annexure 'E' copy of the plaint of Suit No.723/83 that applicant has filed the suit for permanent injunction against respondent No.1 for threatened ejectment from the premises in question. It is also clear from Annexure 'D', certified copy of the undertaking, dated 24th February,1983 given by the respondent No.], that he had agreed not to dispossess the applicant, except in due process of law. In face of this civil litigation pending between the applicant and respondent No.1 initiating of the proceedings under section 145, Cr.P.C. by respondent No.1 by complaint, dated 20th March,1983 amounted to the abuse of the process of the learned trial Court. It may however, be noted, that respondent No.1 had suppressed the facts regarding civil suit in question and the undertaking given by him in the said suit in his complaint under section, 145, Cr.P.C. and obtained order, dated 29th March,1983 under section 145 (1), Cr.P.C. for sealing of the premises in question. In face of civil litigation pending between the parties, initiation of the proceedings under section 145, Cr.P.C. amounted to abuse in the process of learned trial A Court, as in my opinion the possession of the premises in question is to be governed by the undertaking, dated 24th February, 1983 given by respondent No.1, in civil suit No.723/83, which is still pending in the Court of XXXI Civil Judge at Karachi. Furthermore, I do not find anything on record of learned trial Court to show that there was no immediate apprehension or breach of peace so as to warrant initiating of proceedings under section 145, Cr.P.C. and or for passing of orders under section 145 (1), Cr.P.C.

Therefore I allow the above petition and quash the proceedings in the shape of Case No.99/83 N.K. Irani v. Ammanullah and Muhammad Saleem under section 145 Cr.P.C. pending in the Court of Assistant 8 Commissioner and S.D.M. Civil Lines Karachi, as well as attachment order, dated 29th March, 1983 passed under section 145 (1), Cr.P.C. by the said Assistant Commissioner and S.D.M. Civil Lines, Karachi. I direct that the possession of the premises be restored to the person, who was actually in physical possession of the said premises at the time of sealing of the said premises by police, in pursuance of order, dated 29th March, 1983 forthwith.

M. Y. H. Proceedings quashed.

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