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CASE NO.:

Appeal (civil) 10906 of 1996

PETITIONER:

Shanti Kumar Panda

RESPONDENT:

Shakutala Devi

DATE OF JUDGMENT: 03/11/2003

BENCH:

R.C. LAHOTI & ASHOK BHAN.

JUDGMENT:

J U D G M E N T

R.C. LAHOTI, J.

Shanti Kumar Panda, the appellant before us lodged a complaint

with Station Officer, Line Bazar, Jaunpur, whereupon the police filed a

report before the Sub-Divisional Magistrate (S.D.M.) Sadar, Jaunpur,

who made a preliminary order under Section 145(1) of the Code of

Criminal Procedure, 1973 (hereinafter referred to as 'the Code', for

short) recording his satisfaction that a dispute, likely to cause a breach

of the peace, exists concerning the shop, which is the subject matter

of dispute (hereinafter referred to as 'the shop', for short) between the

appellant and one Kamta Prasad (not a party in this appeal) and

requiring both of them to attend his court and put in the written

statements of their respective claims as respects the fact of actual

possession of the shop. The learned S.D.M. also found that the case

was one of emergency and therefore he directed the shop to be

attached under Section 146(1) of the Code. The preliminary order

under Section 145(1) and the order of attachment under Section

146(1) were both made on 16.5.92. Kamta Prasad appeared and

stated that he had nothing to do with the shop and the owner of the

property, who was also in possession thereof, was one Shakuntala

Devi (respondent No.1 herein, hereinafter referred to as 'the

respondent', for short). Kamta Prasad also submitted that the

appellant had deliberately not impleaded the respondent as a party to

the proceedings as he was in collusion with the police and wanted to

deprive Shakuntala Devi of her lawful possession over the shop.

Shakuntala Devi, on becoming aware of the proceedings (obviously on

the information provided by Kamta Prasad), moved an application

before the learned S.D.M. stating that she was a party interested in

the subject matter of dispute and as she was in peaceful possession of

the shop, she ought to have been joined as party to the proceedings

and as that not done, she prayed for her impleadment and an

opportunity of being heard.

The learned S.D.M. kept the application filed by the respondent

pending till 6.7.92 when the proceedings were directed to be disposed

of by a final order. No opportunity was allowed to the respondent to

join in the proceedings and to file her own claims as to the possession

of the shop. The learned S.D.M. held that the appellant was in

possession over the disputed shop on the date of the passing of the

preliminary order as also in the two months prior thereto. Having

made that declaration the learned S.D.M. directed that until the rights

were determined by the competent court, the shop shall be released in

favour of Shanti Kumar Panda, the appellant.

Shakuntala Devi, the respondent and Kamta Prasad both

preferred revision petitions against the order of the learned S.D.M. By

order dated 27.2.93 the learned Additional Sessions Judge directed the

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revision to be dismissed by holding that the order of the learned

S.D.M. did not suffer from any infirmity. Both these orders were put in

issue by the respondent and Kamta Prasad by filing a petition under

Article 226 of the Constitution in the High Court which too was

dismissed on 6.12.93. One of the reasons which has prevailed with

the High Court for dismissing the petition is that the respondent had

already approached the Civil Court and the jurisdiction of the Civil

Court having been invoked, which was an efficacious alternative

remedy available to the respondent, it was not appropriate for the

High Court to entertain the writ petition and exercise its jurisdiction

under Article 226 of the Constitution.

Soon after the decision by the learned Additional Sessions Judge

on 27.2.93, Shakuntala Devi, the respondent, filed civil suit No.283 of

1993 based on title, seeking a permanent preventive injunction

against Shanti Kumar Panda, the appellant herein. Kamta Prasad who

alone was impleaded by the respondent as the party in the

proceedings under Sections 145/146 of the Code was not impleaded as

a party in the civil suit filed by the respondent Shakuntala Devi,

inasmuch as the impleadment of Kamta Prasad who was not claiming

any interest and not even possession over the shop was considered to

be unnecessary. The respondent also sought for an ad-interim

preventive injunction so as to protect her possession over the shop.

By order dated 5.8.95 the learned Civil Judge allowed the application

filed by the respondent and directed the appellant to remain restrained

from interfering with the possession of the respondent over the shop.

The learned Civil Judge also directed a court officer to go at the site of

the shop and after opening the locks to put the respondent in

possession of the shop. It would be relevant to note some of the

observations, pungent to some extent, made by the learned Civil

Judge during the course of his order. The learned Civil Judge observed

that the proceedings under Sections 145/146 of the Code had

proceeded in the absence of the respondent who was not even allowed

an opportunity of being heard though she was the real person claiming

possession and also title over the shop. The learned Judge said -

"She was not even offered the opportunity of being

heard. The real fact is that after the death of Smt.

Tapesara the anti social elements conspired to grab

her house and shop and under that conspiracy the

sister of Tapesara, i.e., Shakuntala Plaintiff whose

possession was over the disputed house and shop

wanted to eject her forcibly and the administration

fully helped in evicting the plaintiff from her house

and shop\005\005..it is clear that the plaintiff was in

possession and still she is in possession. Merely by

taking advantage of the condition of the plaintiff

the Sub-Inspector and the S.D.M. under the

proceeding under Section 145 Cr.P.C. got locked

the shop and house and the plaintiff is again

entitled to live therein. If it is not so any one could

take possession of any one's house in collusion

with the administration. The day it is done that

day will become a symbol of injustice in the

society\005\005\005\005The one who is not a party to the

proceeding under Section 145 Cr.P.C. the finding

given under Section 145 Cr.P.C. is not binding on

him."

The appellant preferred a miscellaneous appeal. The learned

District Judge, vide his order dated 15.11.95, allowed the same and

set aside the order dated 5.8.95 passed by the learned Civil Judge.

The principal reason which has prevailed with the learned District

Judge was that the proceedings under Section 145 of the Code having

terminated in favour of Shanti Kumar Panda, the appellant, the trial

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court was not justified in issuing the order of injunction unless and

until the order of the learned S.D.M. was superseded by a decree of

the Civil Court and that no injunction can be granted when the

disputed property is in custodia legis.

The respondent preferred a petition under Article 227 of the

Constitution. The High Court has allowed the petition, set aside the

order of the learned District Judge and restored the order passed by

the learned Civil Judge. Feeling aggrieved by the order of the High

Court this appeal has been preferred by special leave.

Mr. Sunil Gupta, the learned Senior Counsel appearing for the

appellant, has forcefully urged, placing reliance on the phraseology

employed by the Parliament in drafting Section 145 of the Code, that

once an order under Sections 145 and/or 146 of the Code has been

passed, finally terminating proceedings thereunder, then it is only a

decree for eviction passed by a Civil Court in a suit based on title filed

by the party unsuccessful before the learned S.D.M. which would

supersede the order passed by the Magistrate, which order continues

to remain in operation and ought to be respected not only by the

parties thereto but also by the Civil Court. In other words, he

submitted that an order of temporary injunction inconsistent with the

order of the Magistrate under Sections 145/146 of the Code or

superseding it cannot be passed by the Civil Court.

Mr. Jayant Bhushan, the learned Senior Counsel, who initially

represented the respondent before being designated as senior

advocate, appeared at the time of hearing and submitted that though

he was not instructed to appear yet he is available to assist the Court

to place the correct legal position in spite of his having given up the

brief to the respondent. We appreciate the gesture shown by him. He

has adopted a line of reasoning opposite to the one adopted by Mr.

Sunil Gupta and has supported the order of the trial court restored by

the High Court. The rival submissions made before us raise certain

important issues touching the value and efficacy of the final order

passed under Sections 145/146 of the Code in the proceedings

wherein that order is called in question.

Sections 145 and 146 of the Code, insofar as they are relevant

for our purpose are extracted and reproduced hereunder:

"145. Procedure where dispute concerning

land or water is likely to cause breach of

peace. \026

(1) Whenever an Executive Magistrate is satisfied

from a report of a police officer or upon other

information that a dispute likely to cause a

breach of the peace exists concerning any land

or water or the boundaries thereof, within his

local jurisdiction, he shall make an order in

writing, stating the grounds of his being so

satisfied, and requiring the parties concerned

in such dispute to attend his Court in person

or by pleader, on a specified date and time,

and to put in written statements of their

respective claims as respects the fact of actual

possession of the subject of dispute.

(2) & (3) *** ***

(4) The Magistrate shall then, without reference to

the merits or the claims of any of the parties

to a right to possess the subject of dispute,

pursue the statements so put in, hear the

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parties, receive all such evidence as may be

produced by them, take such further evidence,

if any, as he thinks necessary, and, if possible,

decide whether any and which of the parties

was, at the date of the order made by him

under sub-section (1), in possession of the

subject of dispute :

Provided that, if it appears to the Magistrate

that any party has been forcibly and

wrongfully dispossessed, within two months

next before the date on which the report of a

police officer or other information was

received by the Magistrate, or after that date

and before the date of his order under sub-

section (1), he may treat the party so

dispossessed as if that party had been in

possession on the date of his order under sub-

section (1).

(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 sub-section (1)

shall be final.

(6) (a) If the Magistrate decides that one of the

parties was, or should under the proviso to

sub-section (4) be treated as being, in such

possession of the said subject, he shall issue

an order declaring such party to be entitled to

possession thereof until evicted therefrom in

due course of law, and forbidding all

disturbance of such possession until such

eviction; and when he proceeds under the

proviso to sub-section (4), may restore to

possession the party forcibly and wrongfully

dispossessed.

(b) The order made under this sub-section

shall be served and published in the manner

laid in sub-section (3)."

146. Power to attach subject of dispute and to

appoint receiver. \026

(1) If the Magistrate at any time after making the

order under sub-section (1) of Section 145

considers the case to be one of emergency, or

if he decides that none of the parties was then

in such possession as is referred to in Section

145, or if he is unable to satisfy himself as to

which of them was then in such possession of

the subject of dispute, he may attach the

subject of dispute until a competent Court has

determined the rights of the parties thereto

with regard to the person entitled to the

possession thereof :

Provided that in the event of a receiver being

subsequently appointed in relation to the

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subject of dispute by any Civil Court, the

Magistrate \026

(a) shall order the receiver appointed by him

to hand over the possession of the subject of

dispute to the receiver appointed by the Civil

Court and shall thereafter discharge the

receiver appointed by him.

(b) may make such other incidental or

consequential orders as may be just.

Possession is nine points in law. One purpose of the

enforcement of the laws is to maintain peace and order in society. The

disputes relating to property should be settled in a civilized manner by

having recourse to law and not by taking the law in own hands by

members of society. A dispute relating to any land etc. as defined in

sub-section (2) of Section 145 having arisen, causing a likelihood of a

breach of the peace, Section 145 of the Code authorizes the Executive

Magistrate to take cognizance of the dispute and settle the same by

holding an enquiry into possession as distinguished from right to

possession or title. The proceedings under Sections 145/146 of the

Code have been held to be quasi-civil, quasi-criminal in nature or an

executive on police action. The purpose of the provisions is to provide

a speedy and summary remedy so as to prevent a breach of the peace

by submitting the dispute to the Executive Magistrate for resolution as

between the parties disputing the question of possession over the

property. The Magistrate having taken cognizance of the dispute would

confine himself to ascertaining which of the disputing parties was in

possession by reference to the date of the preliminary order or within

two months next before the said date, as referred to in proviso to sub-

section (4) of Section 145, and maintain the status quo as to

possession until the entitlement to possession was determined by a

court, having competence to enter into adjudication of civil rights,

which an Executive Magistrate cannot. The Executive Magistrate

would not take cognizance of the dispute if it is referable only to

ownership or right to possession and is not over possession simpliciter;

so also the Executive Magistrate would refuse to interfere if there is no

likelihood of breach of the peace or if the likelihood of breach of peace

though existed at a previous point of time, had ceased to exist by the

time he was called upon to pronounce the final order so far as he was

concerned.

There is a difference between a case where the subject-matter

of dispute is not attached by the Executive Magistrate under Section

146(1) and the case where it is so attached. Under sub-section (1) of

Section 145 a preliminary order taking cognizance of the dispute

having been passed, the Magistrate would under sub-section (4)

decide who was in possession of the disputed property on the date of

the passing of the preliminary order. Consistently with such finding, a

declaration by Magistrate in favour of such party would follow under

sub-section (6) entitling it to retain possession over such property

until evicted therefrom in due course of law. And until such eviction all

disturbances in its possession shall be forbidden. If any party is found

to have been forcibly or wrongfully dispossessed within two months

next before the date on which the report of a police officer or other

information setting the Magistrate in motion was received by him or

between such date and the date of order under sub-section (1), then

the party dispossessed has to be fictionally treated as one in

possession on the date of preliminary order under sub-section (1).

The declaration of entitlement to possession under proviso to sub-

section (4) read with sub-section (6) shall be made in favour of such

party and the party found to have been so dispossessed forcibly and

wrongfully may also be restored into possession. The declaration

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having been made, it would be for the unsuccessful party to approach

the competent court and secure such order as would enable his

entering into possession and evicting the party successful in

proceedings under Section 145.

What is an eviction "in due course of law" within the meaning of

sub-section (6) of Section 145 of the Code? Does it mean a suit or

proceedings directing restoration of possession between the parties

respectively unsuccessful and successful in proceedings under Section

145 or any order of competent court which though not expressly

directing eviction of successful party, has the effect of upholding the

possession or entitlement to possession of the unsuccessful party as

against the said successful party. In our opinion, which we would

buttress by reasons stated shortly hereinafter, ordinarily a party

unsuccessful in proceedings under Section 145 ought to sue for

recovery of possession seeking a decree or order for restoration of

possession. However, a party though unsuccessful in proceedings

under Section 145 may still be able to successfully establish before the

competent court that it was actually in possession of the property and

is entitled to retain the same by making out a strong case

demonstrating the finding of the Magistrate to be apparently incorrect.

In a case where attachment has been made under Section

146(1) of the Code, it is not necessary for the unsuccessful party to

seek the relief of possession from the court; a mere adjudication of

rights would suffice inasmuch as the attached property is held custodia

legis by the Magistrate for and on behalf of the party who would be

successful from the competent court by establishing his right to

possession over the property.

Mr. Sunil Gupta, the learned Senior Counsel for the appellant

submitted, reading literally the sub-section (6) of Section 145 of the

Code, that declaration of the successful party "to be entitled to

possession thereof until evicted therefrom in due course of law, and

forbidding all disturbance of such possession until such eviction"

means that the Parliament intended to confer a binding efficacy on the

Magistrate's order not only qua the parties to the proceedings but also

qua all concerned to respect and abide by the order of the Executive

Magistrate and such order and the possession of the successful party

protected thereunder shall continue to survive and hold valid and good

unless at the final adjudication of civil rights the competent court has

directed the party successful in proceedings before the Magistrate to

be evicted, whence and whence alone that party shall lose possession

and bound to hand over the same to the party successful in the Civil

Court.

It is well-settled that a decision by a Criminal Court does not

bind the Civil Court while a decision by the Civil Court binds the

Criminal Court (See \026 Sarkar on Evidence, Fifteenth Edition, page

845). A decision given under Section 145 of the Code has relevance

and is admissible in evidence to show :- (i) that there was a dispute

relating to a particular property; (ii) that the dispute was between the

particular parties; (iii) that such dispute led to the passing of a

preliminary order under Section 145(1) or an attachment under

Section 146(1), on the given date, and (iv) that the Magistrate found

one of the parties to be in possession or fictional possession of the

disputed property on the date of the preliminary order. The reasoning

recorded by the Magistrate or other findings arrived at by him have no

relevance and are not admissible in evidence before the competent

court and the competent court is not bound by the findings arrived at

by the Magistrate even on the question of possession through, as

between the parties, the order of the Magistrate would be evidence of

possession. The finding recorded by the Magistrate does not bind the

Court. The competent court has jurisdiction and would be justified in

arriving at a finding inconsistent with the one arrived at by the

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Executive Magistrate even on the question of possession. Sections

145 and 146 only provide for the order of the Executive Magistrate

made under any of the two provisions being superseded by and giving

way to the order or decree of a competent court. The effect of the

Magistrate's order is that burden is thrown on the unsuccessful party

to prove its possession or entitlement to possession before the

competent court.

In Bhinka & Ors. Vs. Charan Singh , AIR 1959 SC 960, this

Court held that the Magistrate does not purport to decide a party's title

or right to possession of the land but expressly reserves that question

to be decided in due course of law. His order is a temporary order

irrespective of the rights of the parties, which will have to be agitated

and adjudicated upon by a competent forum and in the manner

provided by law. The life of the said order is coterminous with the

passing of a decree by a Civil Court and the moment a Civil Court

makes an order of eviction, it displaces the order of the Criminal

Court. The orders under Section 145 of the Code are thus merely

police orders and do not decide any question of title.

We would like to clarify that in the case of Bhinka and Ors.

(supra) the question \026 what is a competent court, did not arise for

determination; nor did the question as to what is the weight and value

to be assigned to or what is the efficacy of the order of the Magistrate

in a subsequent suit or proceeding initiated before a competent court

directly arise for consideration. This we say because it is also well-

settled that Sections 145 and 146 nowhere specifically provide for the

order of the Magistrate being subject to and superseded by only a

decree of 'Civil Court'. The words 'competent court' used in Section

146 (1), in the context in which they have been used, only mean "any

court which has jurisdictional competence to decide the question of

title or rights to the property or entitlement to possession based on

right or title to the property though the court is not necessarily a Civil

Court". The words 'until evicted therefrom in due course of law' as

occurring in sub-section (6) of Section 145' mean the eviction of the

party successful before the Magistrate, consequent upon the

adjudication of title or right to possession by a competent court; that

does not necessarily mean a decree of eviction. The party

unsuccessful before the Magistrate may dispute the correctness of the

finding arrived at by the Magistrate and is at liberty to show before the

competent court that it had not dispossessed the successful party or

that it is the unsuccessful party and not the successful party who was

actually in possession and the finding to the contrary arrived at by the

Magistrate was wholly or apparently erroneous and unsustainable in

law.

In Jhunamal alias Devandas Vs. State of Madhya Pradesh

& Ors. , (1988) 4 SCC 452, this Court has held that a concluded order

under Section 145, Cr.P.C., made by the Magistrate of competent

jurisdiction should not be set at naught merely because the

unsuccessful party has approached the civil Court. An order made

under Section 145, Cr.P.C., deals only with the factum of possession of

the party as on a particular day. It confers no title to remain in

possession of the disputed property. The order is subject to decision

of the civil Court. The unsuccessful party therefore must get relief

only in the civil Court. He may move the civil court with a properly

constituted suit. He may file a suit for declaration and prove a better

right to possession. The civil Court has jurisdiction to give a finding

different from that which the Magistrate has reached. Here again we

may hasten to add that the expression 'civil court' used by this Court

in Jhunamal's case (supra) means competent court and not

necessarily a civil court as commonly understood.

At what stage may the competent court arrive at a finding

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inconsistent with the one given by the Magistrate? Is it correct to say

that the finding recorded by the Magistrate can be dislodged only at

the time of and by passing a final decree terminating the suit? Or,

whether the competent court can, depending on the facts and

circumstances of a given case, arrive at a finding different from the

one recorded by the Magistrate even at the state of interlocutory order

such as one of injunction or appointment of receiver during the

pendency of the suit?

We have already indicated hereinabove the extent of relevance

of an order under Sections 145/146 of the Code in a subsequent civil

action between the parties. In a civil action between different parties

the finding of a criminal court cannot be treated as binding except to

the extent of being evidence of the factum of a particular judgment

having been delivered by the particular criminal court on a particular

date as already indicated hereinabove. In Anil Behari Ghosh Vs.

Smt. Latika Bala Dassi & ors., AIR 1955 SC 566 this Court has held

that in a proceeding for revocation of a grant of probate under Section

263 of the Succession Act the previous judgment of the Criminal Court

convicting the son of the murder of his father and sentencing him to

transportation for life is not admissible in evidence of the fact that the

son was the murderer of the testator. That is a question to be decided

on evidence. The judgment of the Criminal Court is relevant only to

show that there was such trial resulting in such conviction and

sentence of the son to transportation for life.

The order of the magistrate under Section 145/146 of the Code

is not only an order passed by Criminal Court but is also one based on

summary enquiry. The competent Court in any subsequent

proceedings is free to arrive at its own findings based on the evidence

adduced before it on all the issues arising for decision before it. At the

stage of judgment by Civil Court the order of the magistrate shall be of

almost no relevance except for the purpose of showing that an enquiry

held by the magistrate had resulted into the given declaration being

made on a particular date. The competent Court would be free to

record its own findings based on the material before it even on the

question of possession which may be inconsistent with or contrary to

the findings arrived at by the magistrate.

At the stage of passing an interlocutory order such as on an

application for the grant of ad interim injunction under Rule 1 or 2 of

Order 39 of the CPC, the competent Court shall have to form its

opinion on the availability of a prima facie case, the balance of

convenience and the irreparable injury __ the three pillars on which

rests the foundation of any order of injunction. At that stage material

in the shape of affidavits, documents and pleadings is placed before

the Court for its consideration. The order of the Executive Magistrate

may also be placed before it, who having held an enquiry, though

summary in nature, has arrived at a finding on the question of

possession which the Code intends to be sustained unless the Court of

competent jurisdiction by its judicial order supersedes the finding or

the effect of such finding and till then all disturbances in possession of

the successful party are intended by the Code to be forbidden. The

Civil Court shall also respect such order and will be loath to arrive at

an interim arrangement inconsistent with the one made by the

Executive Magistrate. However, this is far from holding that the Civil

Court does not have jurisdiction to make an order of injunction

inconsistent with the order of the Executive Magistrate. The

jurisdiction is there but the same shall be exercised not as a rule but

as an exception. There may be cases such as one where the order of

the Executive Magistrate can be shown to be without jurisdiction,

palpably wrong or containing self-contradictory findings. For example,

the Magistrate may have made an order treating the party

dispossessed beyond two months to be as in possession. There may

be cases where in spite of the order made by the Executive Magistrate

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based on the evidence adduced before it, the competent court, based

on the material produced before such Court, may be inclined to hold

that prima facie a very strong case for retaining or placing one of the

parties in possession of the suit property is made out or where it will

be totally unjust or inequitable to continue one party in possession of

the property as ordered by the Executive Magistrate. In such

exceptional situations, the competent court (which will mostly be a

civil court) may have jurisdiction for granting an order of injunction in

departure from the findings recorded and the declaration made by the

Executive Magistrate under Section 145 of the Code of Criminal

Procedure. The order under Section 146 of the Code would not pose a

problem of that magnitude. Inasmuch as the property is under

attachment and is placed in the hands of a receiver the Civil Court can

comfortably examine whether it would be just and expedient to

continue with the attachment and with the same receiver or to appoint

another receiver or to make some other interim arrangement during

the pendency of the civil suit.

For the purpose of legal proceedings initiated before a

competent court subsequent to the order of an Executive Magistrate

under Sections 145/146 of the Code of Criminal Procedure, the law as

to the effect of the order of the Magistrate may be summarized as

under:-

(1) The words 'competent court' as used in sub-section (1) of

Section 146 of the code do not necessarily mean a civil court

only. A competent court is one which has the jurisdictional

competence to determine the question of title or the rights of

the parties with regard to the entitlement as to possession over

the property forming subject matter of proceedings before the

Executive Magistrate;

(2) A party unsuccessful in an order under Section 145(1) would

initiate proceedings in a competent court to establish its

entitlement to possession over the disputed property against the

successful party. Ordinarily, a relief of recovery of possession

would be appropriate to be sought for. In legal proceedings

initiated before a competent court consequent upon attachment

under Section 146(1) of the Code it is not necessary to seek

relief of recovery of possession. As the property is held custodia

legis by the Magistrate for and on behalf of the party who would

ultimately succeed from the court it would suffice if only

determination of the rights with regard to the entitlement to the

possession is sought for. Such a suit shall not be bad for not

asking for the relief of possession.

(3) A decision by a criminal court does not bind the civil court while

a decision by the civil court binds the criminal court. An order

passed by the Executive Magistrate in proceedings under

Sections 145/146 of the Code is an order by a criminal court

and that too based on a summary enquiry. The order is entitled

to respect and weight before the competent court at the

interlocutory stage. At the stage of final adjudication of rights,

which would be on the evidence adduced before the court, the

order of the Magistrate is only one out of several pieces of

evidence.

(4) The Court will be loath to issue an order of interim injunction or

to order an interim arrangement inconsistent with the one made

by the Executive Magistrate. However, to say so is merely

stating a rule of caution or restraint, on exercise of discretion by

Court, dictated by prudence and regard for the urgent/emergent

executive orders made within jurisdiction by their makers; and

certainly not a tab on power of Court. The Court does have

jurisdiction to make an interim order including an order of ad-

interim injunction inconsistent with the order of the Executive

Magistrate. The jurisdiction is there but the same shall be

exercised not as a rule but as an exception. Even at the stage

of passing an ad-interim order the party unsuccessful before the

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Executive Magistrate may on material placed before the Court

succeed in making out a strong prima facie case demonstrating

the findings of the Executive Magistrate to be without

jurisdiction, palpably wrong or self-inconsistent in which or the

like cases the Court may, after recording its reasons and

satisfaction, make an order inconsistent with, or in departure

from, the one made by the Executive Magistrate. The order of

the court \026 final or interlocutory, would have the effect of

declaring one of the parties entitled to possession and evicting

therefrom the party successful before the Executive Magistrate

within the meaning of sub-section (6) of Section 145.

In the present case, the trial Court has felt strongly against the

police action taken under Section 145(1) of the Code. This can clearly

be inferred from the observations contained in the order of the learned

Civil Judge. The plaintiff-respondent herein was not allowed \026 in spite

of her efforts \026 to participate in the proceedings under Section 145.

The party proceeded against by the Executive Magistrate was not

interested in contesting the proceedings. The first Appellate Court has

not recorded any disagreement with the observations made by the

learned Civil Judge but has proceeded on a different reasoning which

reasoning has been found to be erroneous by the High Court. The

High Court has agreed with the view taken by the learned Civil Judge.

We do not think that any case for interference with the order of the

High Court is made out.

The appeal is dismissed. No order as to the costs.