ABDUL AZIZ AND Others vs Mian RAFIUDDIN THROUGH HIS LEGAL HEIRS

1. M. S. H. QURAISHI, J.-This appeal, by leave of the Court, is directed against the order dated 17-3- 1982 passed by a learned Single Judge of the Lahore High Court whereby he set aside the order of Magistrate dated 5-2-1973 in proceedings under section 147, Cr. P. C. And remanded the matter with direction to treat the - proceedings as one under section 145, Cr. P. C. And to finally decide the dispute as regards possession.

2. The proceedings had been initiated on 22-4-1971 on an application moved by respondent Mian Rafiuddin praying that the applicants be restrained from interfering with the exercise of his lawful right to use the property in dispute. The case of Mian Rafiuddin was that he had taken on lease in 1946 Plot No. 41-A from the Cantonment Authorities and had constructed some fifty godowns over it; that he had rented out 37 of the godowns in September, 1948 to the Provincial Food Department from whom he took delivery of possession on 20-11-1970 ; that be had negotiated for hiring out the godowns to the Pakistan Agricultural Development Corporation but the same was frus--trated because of interference and threats given by the appellants and that he had started storing his own fertilizers in 'the godowns but the appellants' Party armed with Dangs and hockey sticks threatened to kill the persons who would stare fertilizers there. This led to a proceeding against both the parties under section 107;151, Cr. P. C. And in the result the parties were directed to furnish security.

3. The appellants in their written statement claimed that Mian Rafiuddin had got the lease of the plot for the benefit of the partnership business which the two parties were having; that the godowns had also been raised from the profits of the partnership and that Mian Rafiuddin was accountable for the profit; of the building. They further claimed that after the Food Department vacated the godowns, the entire building was in their possession. They denied having issued threats to kill and asserted that in fact there was no cause of apprehension of a breach of the peace. They also assailed the maintainability of the proceedings on the ground that civil suit concerning the dispute was already pending.

4. The learned Cantonment Magistrate after recording the evidence of the parties, cache to the view that Mian Rafiuddin had taken over the building from the Food Department but had been stopped by the appellants from exer--cising his rights over the property ; that the dispute was likely to cause a breach of the peace and that mere pendency of a civil suit would not oust his jurisdiction to act. He, therefore, allowed Mian Rafiuddin's application and held him entitled to the right of the user in 35 godowns of the property.

5. Both parties came to the High Court in revision. The High Court appointed a Local Commissioner who reported that different parts of the building were in possession of the two parties and that none was icy exclusive possession of the same. The High Court held that from the pleadings of the parties, it was clear that the basic dispute was in regard to possession of a large number of godowns in the building; and that, therefore, the proceedings taken by the Magistrate under section 147, Cr. P. C., was incompetent. The High Court, thereupon, relying on 9 Cr. L J 565 and 19 Cr.

6. L J 869 set aside the Magistrate's order, remanded the case to him for treating the proceedings as one under section 145, Cr. P. C., and to finally decide the dispute as regards the possession, with this direction, the revision petition of the appellants was accepted and that of Mian Rafiuddin dismissed.

7. Mr. Aitzaz Ahsan, learned counsel for the appellants submits that as their revision had been accepted by the High Court, matter should not have been remanded particularly when it was the respondent and not they who had asked for remand. The appellants had succeeded before the High Court to the extent that the order of the Magistrate passed against them was set aside but since the matter was not concluded thereby, the remand of the case was proper.

8. It is next contended that the application under section 147, Cr. P. C., being itself not maintainable, the same could not be converted into one under section 145, Cr. P. C., and that even otherwise, the High Court did not have the power to order such conversion. As already pointed out, the pleadings of the parties before the Magistrate, showed that both had been asserting their own respective possession of the property. The appellants had themselves in their revision petition pleaded that :- "That the petitioners are in possession of the disputed property and with--out deciding the issue of possession, the learned Magistrate, by the present impugned order has dispossessed the petitioners under the garb of right of user. The cardinal question in such a case is pos. Session."

9. The High Court was, therefore, justified in holding that "the basic dispute between the parties is as regards the possession". The legal objection taken to the power of High Court to convert the proceedings from section 147, Cr. P. C. To section 145, Cr. P. C. Does not have any weight because the p Court was fully competent to apply the law correctly to the pleadings of the parties and the material brought before it. The judgments in Subramania Pillai and others v. Sannasia Pillai and others (9 Cr. L J 565) and Mst. Kaniz Amina and others v. Emperor (19 Cr. L J 869) support the course adopted by the High Court.

10. Another point raised is that there had been no clear finding as to the existence of apprehension of a breach of the peace, that in any case the dispute having consumed nearly 11 years' time, the apprehension, if any, had already vanished and, therefore, the proper course fur the High Court was to have concluded the proceedings leaving the parties to settle the dispute through the civil Court. For this reliance was placed on Muhammad Amir v. Abdul Hamid Khan (PLD 1955 Pesh. 31).

11. As earlier mentioned, action under section 107/151, Cr. P. C., had already been taken against the parties in regard to the dispute and they had been directed to furnish security. The learned Magistrate had also come to the conclusion that a dispute likely to cause a breach of the peace did exist. It would, therefore, not be correct to say that the appre--hension did not exist at the relevant time. Where, however, the litigation continues for a long time, Court may in a proper case hold that apprehen--sion of a breach of the peace had receded and as such the parties should approach the civil Court for resolution of their dispute but it cannot be laid down as a rule that wherever the proceedings prolong the same must be terminated on the assumption that by the passage of time the danger of breach of the peace has totally vanished. Nothing having been brought to the notice of the High Court that the danger had receded, we are unable to agree with the learned counsel that the High Court should not have remanded the matter.

12. It is also urged that as the matter is already before the civil Court, firstly by a suit brought by the appellants on 13-2-1969 for dissolution of the partnership and rendition of accounts which suit though dismissed on 24-2-1983, is under appeal which is pending and secondly by a suit instituted by the respondent on 24-2-1983, the continuation of the proceedings is not warranted. For this he referred to Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470). Mere institution of civil action does not oust the Magistrate's jurisdiction', to proceed under section 145, Cr. P. C. If the dispute relating to possession is likely to cause a breach of the peace, but that jurisdiction will cease if a decree declaring the rights of the parties in the property has been passed or an order regulating its possession had been made. In the present proceedings, however, no such decree or order is shown to have been passed by the civil Court and as such the contention has no force.

13. Lastly, the learned counsel urged that the respondent in para. 6 of his suit bled on 24-2-1983, has admitted the possession of the appellants and that, therefore, any further inquiry on that question by the Magistrate is no longer called for. Since this is a new fact which had not been before the High Court, we need not advert to the same. It will be for the learned Magis--trate to examine the effect of the admission, if any.

14. There is thus no merit in this appeal and the same is accordingly dis--missed. There will, however, be no order as to costs.