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Criminal Miscellaneous Application No.1582 of 1986, decided on 28th July, 1987.

‑‑‑S. 145(1), (4) & (5)‑‑Expression "any party has within two months next before date of such order been forcibly and wrongfully, dispossessed" in subsection (4) of S. 145, Cr.P.C., connotation of‑ Period of "two months" in S.145(4), Cr.P.C. means two months from date of preliminary order under S.145(1), Cr.P.C. and not two months from date of the complaint‑‑Dispossession if not within two months of the order passed by Magistrate under S.145(1), Cr.P.C. restoration cannot be ordered and order to contrary would be illegal‑‑Magistrate, before passing order under S.145(4), Cr.P.C. has to hold inquiry with regard to possession and he cannot decide matter ex parte due to absence of opposite‑party on date of hearing, nor can he drop such proceedings under S.145(4), Cr.P.C., all that he can do is to cancel his order passed under S.145(1), Cr.P.C.

P L D 1960 Pesh. 37 held not applicable.

Muhammad Shafiq and others v. Abdul Hayee and others 1987 S C M R 1371 rel.

1974 S C M R 330; A I R 1942 Sind 117 and P L D 1964 Lah. 9 ref .

Naraindas C. Mokarji for Applicant.

M. Aziz Malik for Respondents.

M.A.I. Qarni for the State.

Date of hearing: 15th April, 1987.

This is an application under section 561‑A, Cr.P.C. for quashment of order passed by the learned Sessions Judge, Karachi (West), in Crl. Revision Application No.20 of 1986 Mohammad Sabir v. Abdul Razzak, Tahir and others under section 439‑A, Cr.P.C., whereby the order dated 27‑4‑1986, passed by S.D.M. Liaquatabad, Karachi (West) was set aside, and it was ordered that the possession of property in dispute should be handed over to the respondent No.1.

The brief facts giving rise to the present application are that the applicant claims to be owner of property bearing No.W‑S‑39, Block‑2, measuring 226 sq. yds. According to the applicant the above property was allotted to him by K.D.A. vide order, dated 14‑6‑1969 and he was put in possession of the same on 14‑6‑1969. The site plan was also issued to the applicant. It is further alleged that the applicant has constructed a Katcha house with boundary wall and door, and was in peaceful possession of the premises since 1969, and had been paying the taxes and other charges to the authorities concerned. That on 15‑10‑1985 the respondent No.1 with connivance of the respondent No.2 broke open the lock of the premises and occupied the same unauthorisedly. On 16‑10‑1986 when the applicant visited the premises he was surprised to find that respondents Nos.1 and 2 had broken open the lock. of the premises and had occupied the same without the knowledge and consent of the applicant. The applicant tried to enter in his house on which respondent No.1 used force and asked the applicant to go and inquire from respondent No.2. There was exchange of hot words, on which respondent No.2 who is residing in the adjacent plot came out and exchanged hot words with the applicant and the situation become grave. The applicant immediately went to the Police Station on the some day and reported the matter to the Illaqa Police, but because of influence of the respondents and their arrangement with the police, no F.I.R. was registered, and the report was incorporated in Station diary. That on the other hand respondent No.1 also lodged report with the police alleging therein that he was tenant of the respondent No.2 under the valid tenancy agreement, and applicant had come to dispossess him illegally. That the police after holding enquiry submitted a report before the S.D.M. Liaquatabad Karachi (West) that there is apprehension of breach of peace and proceedings under section 145, Cr.P.C. be initiated. On 26‑12‑1985 the learned S.D.M. passed an order under section 145(1), Cr.P.C. and directed the parties to appear before him on 31‑12‑1985. That 31st was declared holiday and therefore the case was adjourned to 1‑1‑1986. That on 1‑1‑1986 the advocates of both the parties appeared, and the applicant filed an application regarding attachment of the property in dispute before the S.D.M., who after hearing the counsel for the parties passed order under section 145(4), Cr.P.C. for attachment of the property in dispute. On 27‑4‑1986 the learned S.D.M. passed the order regarding desealing of the premises and restored the possession to the applicant as the respondent failed to appear before the Court. A copy of order has been produced as annexure 'D'. That in the meantime respondent No.1 filed Civil Suit, being Suit No.3004‑ of 1985 in the Court of VII Civil Judge, Karachi (West) for perpetual injunction asserting that he was tenant of respondent No.2, and is residing on the disputed plot since February, 1985. That the applicant and two other persons had tried to dispossess him. The learned Judge after hearing the parties dismissed the application filed by the respondent No.1, under Order XXXIX, Rules 1 and 2, C.P.C., vide his order dated 21‑1‑1986. The copy of the plaint and the order have been produced as Annexures 'F' & 'G'. That later on the Suit was dismissed for non‑prosecution on 17‑5‑1986. The respondent No.1 filed Crl. Revision Application before the learned Sessions Judge Karachi (West) challenging the order dated 27‑4‑1986 passed by S.D.M. Liaquatabad, Karachi (West). The learned Sessions Judge Karachi (West) after hearing the parties decided the above Revision Application on 26‑8‑1986 whereby the order dated 27‑4‑1986 was set aside and it was ordered that the possession of the premises in‑dispute be delivered to the respondent No.1. The certified copy of judgment has been produced as Annexure 'J'. The present application is directed against the above order.

I have heard Mr. Naraindas, Advocate for the applicant, Mr. M. Aziz Malik, Advocate for the respondents and Mr. M.A.I. Qarni, Advocate for the State and have also gone through the documents produced by the parties.

It was contended by Mr. Naraindas that the order passed by the learned S.D.M. was legal and valid, and there was no reason for the learned Sessions Judge to interfere with the said order. That the applicant was the owner of the premises in dispute. That the passing of preliminary order under subsection (1) of section 145, Cr.P.C. was not mandatory. In this connection he has relied upon P L D 1960 Pesh. 47.

Mr. M. Aziz Malik appearing for the private respondents has contended that the order passed by S.D.M. under subsection (4) of section 145, Cr.P.C. was passed in contravention of provisions of law. That since the period of more than two months had expired before the order a/s 145(1), Cr.P.C. was passed, the S.D.M. had to put the respondent No.1 in possession. That the order could not be passed without holding proper enquiry and merely because the respondents were absent on the date of hearing the learned S.D.M. could not decide against them. The learned S.D.M. ought to have decided as to who was in actual possession at the relevant time. In this connection he has relied upon 1974 S C M R 330, A I R 1942 Sind 117 and P L D 1964 Lah.9.

Mr. M.A.I. Qarni learned counsel appearing for the State has supported the order of the learned S.D.M. on the ground that the present applicant had moved the police within two months from dispossession.

I have considered the contentions of the learned counsel, and have also gone through the documents produced by them including the orders passed by the S.D.M. and the learned Sessions Judge.

It is the case of the applicant that he was dispossessed on 15‑10‑1985, that he lodged report with the police on 16‑10‑1985, and the order under section 145 subsection (1), Cr.P.C. was passed on 26‑12‑1985.

In order to appreciate the legal position it is necessary to have a look at the provisions of subsections (4) and (5) of section 145, Cr.P.C. Section 145(4) and (5) Cr.P.C. reads as under:‑

"145(4). Inquiry as to possession:‑‑The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and if possible, decide whether any or which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided that, if it appears to the Magistrate that any party has 'within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under subsection (1) shall be final. "

A bare reading of subsection (4) of section 145 Cr.P.C. will show that it was necessary to hold an enquiry with regard to possession, and that if it was shown by the applicant that he was dispossessed within 2 months of the date of passing of order under section 145(1), Cr.P.C. then the possession could be restored to him. In the present case admittedly the applicant was not in possession within 2 months next from the date of order passed under subsection (1) of section 145 Cr.P.C. therefore, the order restoring possession to him was clearly in violation of the above provision of law.

P L D 1960 Pesh. 47 relied upon by the learned counsel for the applicant has no relevancy to the facts of the present cam inasmuch as it only speaks that failure to record preliminary order does not invalidate proceedings, and defect if any is curable under section 145 Cr.P.C.

On the other hand the learned counsel appearing for the private respondents has relied upon the case of Ghulam Mustafa v. Abdul Karim and others P L D 1964 Lah. 9 in which it was held that in proceedings under section 145 Cr.P.C. the court has to see as to who. was in possession and has nothing to do with the title of the parties. It was not open to the Magistrate to determine whether possession was founded on title. He had merely to decide as to who was in possession. Two months in section 145 subsection (4) Cr.P.C. mean two months from the date of preliminary order under subsection (1) of section 145, Cr.P.C. and not two months from the date of the complaint.

The order passed by the S.D.M. was erroneous and the learned Sessions Judge was right in interfering with the same on various' grounds; firstly, in spite of the fact that the private respondents had remained absent on 27‑4‑1986, the S.D.M. had to hold an enquiry with regard to possession and he could not decide the matter ex parte. Secondly, the S.D.M. could not drop proceedings under Section 145(4) Cr.P.C., but if he was satisfied that no such dispute existed in such a case he could cancel his order passed under subsection (1) of Section 145, Cr.P.C. and stay all such proceedings under subsection (5) of Section 145, Cr. P.C. Thirdly, the S.D.M. had to restore possession to the party from whom it was taken at the time of passing attachment order until that party was evicted therefrom in due course of law. In this connection I will refer to a case of Mohammad Shafiq and others v. Abdul Hayee and others 1987 SCMR 1371 in which it was held by their Lordships of the Supreme Court that "notwithstanding the filing of the application within two months of dispossession if such dispossession not within two months of the order passed by the Magistrate under subsection (1) of Section 145, Cr.P.C. restoration of possession cannot be ordered and order to the contrary would not be in accordance to the provisions of the Code. "

In view of the above discussion the order passed by the S.D.M. was unwarranted and illegal, and the learned Sessions Judge was justified in interfering with the said order to correct the obvious legal error committed by the S.D.M .

There are no reasons to interfere with the order passed by the learned Sessions Judge, the above application is, therefore, dismissed.

K.B.A. / A‑132/ K Application dismissed

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