Friday, 10 October 2014

Attachment of a disputed shop

PLJ 2014 AJ&K 65
Present: Munir Ahmed Chaudhary, J.
ARSHAD MEHMOOD--Petitioner
versus
BARKAT ALI & 5 others--Respondents
W.P. No. 111 of 2013, decided on 18.5.2013.
----S. 145--AJ&K Interim Constitution Act, 1974, S. 44--Attached and sealed shop--Proceedings u/S. 145, Cr.P.C. were under process before Distt. Magistrate--Attachment order of disputed shop was passed by Magistrate--Writ petition was filed by assailing order of suspension--Question of--Whether proceedings u/S. 145, Cr.P.C. would continue in presence of a civil suit pending in a Civil Court--Maintainability of writ petition--Validity--Proceedings before magistrate were illegal and unwarranted in presence of a civil suit--No writ petition was competent when civil suit was pending between parties regarding controversy--Facts of precedents referred for petitioner had no conformity with facts of instant case--Petition was dismissed being not competent in presence of civil suit.  [P. 69] A, B & C
1999 SCR 86, 2000 SCR 291, 2001 SCR 437, 2003 SCR 526 ref.
Ch. Muhammad Riaz Alam, Advocate for Petitioner.
Sardar Muhammad Azam Khan, Advocate for Respondents.
Date of hearing: 18.5.2013.
Order
This writ petition has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which an order passed by the learned Additional Sessions Judge Mirpur dated 24.04.2013 has been assailed being passed without jurisdiction, without hearing the petitioner and illegal in the eyes of law. A prayer was also solicited to set-aside the said order.
2.  Brief facts as stated in the petition are that the petitioner was a tenant of a shop situated at Markazi Jamia Masjid Mirpur. The petitioner was running his business as GB.Tailors jointly with his brother Respondent No. 1 Barkat Ali. Previously the petitioner was running his business of decoration, lights and crockery in the said shop, but the respondent after coming back from England requested to the petitioner that he wanted to upgrade the shop and a joint business of tailoring was established. Later on, the respondent started claiming as sole owner of the business. Due to this, the relationship between both the brothers became strained and on report of SHO Police Station City Mirpur, ADM Mirpur attached and sealed the shop under Section 145 of, Cr.P.C. The respondent filed an application for vacation of attachment order, but ADC/ADM refused to vacate the order. Thereafter, respondent Barkat Ali filed a revision petition before Sessions Judge Mirpur, which was made over to Additional Sessions Judge Mirpur. The learned Additional Sessions Judge Mirpur suspended the order under revision vide his order dated 24.4.2013. Hence, the instant writ petition.
3.  The petitioner filed an application for interim relief to suspend the impugned order passed by the learned Additional Sessions Judge Mirpur. The same was suspended vide order dated 24.4.2013. An application for cancellation of the said order was submitted by the respondent Barkat Ali. It was stated in the application that the order dated 14.03.2013 passed by Additional District Magistrate does not fulfill the condition laid down in Section 145, Cr.P.C. No reasons were recorded by the learned Magistrate as to whether there was any apprehension of breach of peace? The learned Magistrate has wrongly rejected the application filed by respondent Barkat Ali under Section 145(5) of, Cr.P.C. The order dated 30.04.2013 has been obtained from this Court by concealing and misstating the facts. It was further stated that the petitioner has also filed a declaratory suit about the disputed shop in the Court of Senior Civil Judge Mirpur from where he has obtained a stay order, but the petitioner has concealed this fact while filing the instant writ petition. The fact of filing a civil suit was brought into the notice of the learned Magistrate but this fact was not attended. The Mohtamim Markazi Jamia Masjid has filed an affidavit that the applicant/respondent was a bona-fide tenant of disputed shop and he has been paying the rent to the Mosque, but the learned Magistrate also failed to consider this fact. The petitioner has admitted through a civil suit that the disputed shop is jointly owned by the petitioner and the respondent/applicant Barkat Ali, but the learned Magistrate did not cancel attachment order of the shop. No. attachment order can be passed under Section 145, Cr.P.C. in presence of a civil suit. Moreover, the petitioner is a civil servant and cannot run any business. Even he cannot enter into any contract of conducting any business. The respondent/applicant has been running a business of tailoring, the machines, instruments of tailoring and cloth of customers have also been attached and locked up. The respondent/applicant has no other source of livelihood, whereas the petitioner is a Government servant. It was prayed through the said application that order of this Court dated 30.04.2013 be vacated and the order of Additional Sessions Judge Minpur dated 24.04.2013 be restored.
4.  The learned counsel for the parties agreed to advance their preliminary arguments regarding the instant writ petition alongwith the arguments on application for vacation of interim injunction issued by this Court. The learned counsel for the parties advanced their arguments and repeated only the version as taken in the pleadings. The learned counsel for the petitioner Ch. Muhammad Riaz Alam Advocate referred the following precedents in support of his version.
PLD 1988 SC (AJ&K) 27-184
2006 SCR 358
2007 SCR 86
2008 SCR 87
An unreported case titled Shams-ud-Din Vs. Dr. Karamat decided by the apex Court of AJ&K dated 30.6.2011.
5.  The learned counsel for the respondent Barkat Ali referred the following precedents in support of his arguments.
1999 SCR 86
2000 SCR 291
2001 SCR 437
2003 SCR 526
An unreported case titled Arif Mehmood & others Vs. Municipal Corporation Mirpur & others decided by the High Court of AJ&K dated 7.08.2012.
6.  After hearing the preliminary arguments and arguments on application for vacation of interim injunction, I have gone through the record and the precedents referred minutely. The record reveals, even it is an admitted fact that the present petitioner has filed a declaratory suit/permanent injunction against the present respondent in the Court of Senior Civil Judge Mirpur, through which a prayer has been solicited to declare that the petitioner and respondent are running joint business in the disputed shop. Meaning thereby that the same proposition is subjudice before the Civil Court. It is an admitted fact as well that proceedings under Section 145, Cr.P.C, are under process before Additional District Magistrate Mirpur in which the said Magistrate passed an attachment order of the disputed shop. A revision against this order has been preferred and pending before Additional Sessions Judge Mirpur who has suspended the said order of attachment. The instant writ petition has been filed by the petitioner assailing the order of suspension by the learned Additional Sessions Judge Mirpur. This Court has also suspended the order passed by the learned Additional Sessions Judge Mirpur vide its order dated 30.04.2013.
7.  Now, the proposition to be resolved is that whether the proceedings under Section 145, Cr.P.C. should continue in presence of a civil suit pending in a Civil Court regarding title of the disputed property? It has been held in a precedent 2001 SCR 437 that if a civil suit is pending between the parties, none of the parties is competent to file a writ petition and the High Court is not competent to give any findings in exercise of writ jurisdiction when the civil suit is pending between the parties. It has also been held in another precedent 2003 SCR 526 as under:
"It may be stated that proceedings under Section 145, Cr.P.C. are subordinate to a decree or order passed by the Civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning the land or water. These proceedings though concern the subject matter of dispute between the contending parties do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a Civil Court, therefore, if the Civil Court finally decides or through any interim injunction regulates the possession of the subject matter of dispute in such case if apprehension of breach of peace prevails the Magistrate can take action under Sections 107 and 151, Cr.P.C. but he cannot take action under Section 145, Cr.P.C. The proceedings under Section 145, Cr.P.C. in such situation are illegal and without jurisdiction".
The same principle has been laid down in an unreported case titled "Arif Mehmood & others Vs. Municipal Corporation Mirpur & others decided by this Court on 07.08.2012 that no writ petition is competent when civil litigation is subjudice before a Civil Court regarding the disputed property.
8.  The same situation is prevailing in the present case where parties are contesting their controversy before a Civil Court, a Magistrate and before this Court through the instant writ petition. It is astonishing that pendency of civil suit was not brought into notice of the learned Magistrate or the learned Magistrate ignored the same. The proceedings before the learned Magistrate are illegal and unwarranted in presence of a civil suit. It has also been held that no writ petition was competent when the civil suit was pending between the parties regarding the same controversy. The facts of the precedents referred by the learned counsel for the petitioner have no conformity with the facts of the present case.
In the light of what has been discussed above, the instant writ petition is hereby dismissed in limine being not competent in presence of a civil suit. The interim injunction issued by this Court on 30.04.2013 shall be deemed as vacated. No order as to the costs.

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