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R/CR.

MA/16200/2013 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 16200 of 2013


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RAJESHBHAI MAGANBHAI GAJERA
Versus
STATE OF GUJARAT
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Appearance:
MR BOMI H SETHNA(5864) for the PETITIONER(s) No. 1
DELETED(20) for the RESPONDENT(s) No. 2
MR YASH NANAVATY with JAIVIK BHATT for NANAVATY
ADVOCATES(1373) for the RESPONDENT(s) No. 3,4
MS KRINA CALLA, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

Date : 27/11/2018

ORAL ORDER

1. The applicant has filed the present application


under Section 482 of Cr. P.C., challenging the
order dated 24.7.2013 passed by the Third
Additional Sessions Judge, Surat (hereinafter
referred to as "the Revisional Court”) in
Criminal Revision Application No.9 of 2011.

2. The short facts giving rise to the present


application are that the applicant had filed an
application under Section 145 of Cr. P.C.,
alleging inter alia that one Navneetlal Ambubhai
Patel and Ketanbhai Navneetlal Patel, the owners
of the land bearing Block No.11, old Survey
No.5, admeasuring 17.186 Vigha, had agreed to
sell the said land to the applicant and had
executed a Banakhath by receiving
Rs.1,80,00,000/- (Rupees one crore eighty lac)

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R/CR.MA/16200/2013 ORDER

and then had handed over the possession of the


said land to the applicant. However,
thereafter, the said owners had sold out the
said land to the respondent Nos.2 to 4 by
executing the sale deed on 23.11.2009, with a
view to cheat the applicant. Since the
respondent Nos.2 to 4 were trying to forcibly
dispossess the applicant, an application under
Section 145 of Cr. P.C., was filed before the
Additional Executive Magistrate, where the case
was registered as No.19 of 2010. The Additional
Executive Magistrate vide the order dated
7.1.2011, observing that the applicant was
entitled to the possession of the land in
question, had directed the respondent Nos.2 to 4
to hand over the peaceful possession of the land
to the applicant within ten days of the order.
Being aggrieved by the said order, the
respondent Nos.2 to 4 had filed the revision
application, being Criminal Revision Application
No.9 of 2011 before the Revisional Court. The
said Revision Application was allowed by the
Revisional Court vide the impugned order,
against which the present application has been
filed by the applicant.

3. Learned Advocate Mr.Shethna for the applicant


submitted that the Revisional Court had
committed an error in not holding that the
applicant being entitled to the possession of
the land in question by virtue of the Banakhath
executed by the original owners, the respondent

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R/CR.MA/16200/2013 ORDER

Nos.2 to 4 could not have dispossessed the


applicant and thereby created breach of peace.
According to him, the Additional Executive
Magistrate had rightly exercised his powers
under Section 145 of Cr. P.C., and the said
order being just and proper, it should not have
been disturbed by the Revisional Court.

4. However, learned Advocate Mr.Nanavaty appearing


for the respondent Nos.2 to 4 submitted that the
respondent Nos.2 to 4 have already filed the
Civil Suit No.5 of 2011 for cancellation of the
agreement executed in favour of the applicant
and that from the panchnama drawn in the said
suit, it has come on record that the respondent
Nos.2 to 4 were in possession of the land in
question. Relying upon the decision of the
Supreme Court in case of Ram Sumer Puri Mahant
vs State Of U.P. And Ors., reported in (1985) 1
SCC 427, he submitted that when the civil
litigation is pending in respect of the land in
question and the question of possession is
involved, criminal proceedings under Section 145
of the Code should not be entertained.

5. Having regard to the submissions made by the


learned Advocates for the parties and to the
impugned order passed by the Revisional Court,
it appears that the private respondents have
already filed a suit in respect of the land in
question for cancellation of the alleged
agreement executed in favour of the applicant.

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R/CR.MA/16200/2013 ORDER

It also appears that in the said suit, a


panchnama was drawn and the respondent Nos.2 to
4 were found to be in possession of the said
land. Under the circumstances, as rightly
submitted by the learned Advocate for the
respondents, the Additional Executive Magistrate
should not have exercised the power under
Section 145 of Cr. P.C. A very pertinent
observations made by the Supreme Court in case
of Ram Sumer Puri Mahant (supra) in this regard
may be reproduced as under:-

“When a civil litigation is pending for the 
property wherein the question of possession 
is involved and has been adjudicated, we see 
hardly   any   justification   for   initiating   a 
parallel   criminal   proceeding   under   Section 
145 of the Code. There is no scope to doubt 
or dispute the position that the decree of 
the Civil Court is binding on the criminal 
court   in   a   matter   like   the   one   before   us. 
Counsel   for   respondents   2­5   was   not   in   a 
position   to   challenge   the   proposition   that 
parallel proceeding should not be permitted 
to continue and in the event of a decree of 
the  Civil  Court,   the  criminal  court  should 
not   be   allowed   to   invoke   its   jurisdiction 
particularly   when   possession   is   being 
examined by the civil court and parties are 
in   a   position   to   approach   the   civil   court 
for   interim   orders   such   as   injunction   or 
appointment   of   receiver   for   adequate 
protection of the property during dependency 
of   the   dispute.   Multiplicity   of   litigation 
is   not   in   the   interest   of   the   parties   nor 
should public time be allowed to be wasted 
over   meaningless   litigation.   We   are, 
therefore,   satisfied   that   parallel 
proceedings   should   not   continue   and   the 
order   of   the   learned   Magistrate   should   be 
quashed. We accordingly allow the appeal and 

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R/CR.MA/16200/2013 ORDER

quash the order of the learned Magistrate by 
which   the   proceeding   under   Section   145   of 
the Code has been initiated and the property 
in   dispute   has   been   attached.   We   leave   it 
open to either party to move the appellate 
judge   in   the   civil   litigation   for 
appropriate   interim   orders,   if   so   advised, 
in   the   event   of   dispute   relating   to 
possession.”

6. In case of Kunjbihari Vs. Balram and Anr.,


reported in (2006) 11 SCC 66 it has been held as
under:-

“Proceeding   under   Section   145   Cr.   P.C.   would 


be an abuse of process of Court and if any 
party   claims   to   be   in   possession   of 
property   and   seeks   its   protection,   it   is 
for   the   party   to   approach   the   Civil   Court 
and   get   an   appropriate   order,   but   the 
proceeding  under Section 145 Cr. P.C., can 
not be allowed to be continued in the facts 
and circumstances of the case.”

7. In the light of the aforesaid legal position,


the Court is of the opinion that the Revisional
Court has rightly set aside the order passed by
the Additional Executive Magistrate. The
impugned order passed by the Revisional Court
being just, proper and legal, no interference is
called for.

8. In that view of the matter, the application


being devoid of merit is dismissed.

(BELA M. TRIVEDI, J)
V.V.P. PODUVAL

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