WASAL KHAN Versus INAYAT ULLAH
This criminal miscellaneous petition under section 561-A of the Code of Criminal Procedure 1898 sought the quashment of an impugned appellate order passed by the Additional Sessions Judge, which had ordered the attachment of disputed land under section 146 of the Code of Criminal Procedure 1898 despite dismissing the respondent's complaint under section 145 of the Code of Criminal Procedure 1898. The core legal question was whether attachment under section 146 is warranted when the tenant's possession within the statutory two-month period is admitted, and the landlord's remedy for an expired lease lies elsewhere. The Peshawar High Court held that since the petitioner's possession as a lessee within the requisite period was admitted, proceedings under section 145 were misconceived, and the proper course for ejectment of such a tenant was under the relevant tenancy law. Consequently, the High Court accepted the petition and quashed the appellate court's order regarding the attachment of the disputed land and auctioning of standing crops. The key principle laid down is that section 145 and 146 proceedings cannot be utilized to circumvent the prescribed legal procedure for the ejectment of a tenant holding over after the expiry of a lease.
- Can proceedings under section 145 of the Code of Criminal Procedure 1898 be initiated against a tenant whose lease has expired?
- Whether attachment under section 146 of the Code of Criminal Procedure 1898 is justified when possession within the statutory period is admitted?
- Is a petition under section 561-A of the Code of Criminal Procedure 1898 maintainable against an illegal order of attachment passed by an appellate court?
- Section 561-A, Code of Criminal Procedure 1898
- Section 145, Code of Criminal Procedure 1898
- Section 146, Code of Criminal Procedure 1898
- Section 23, N.-W. F. P. Tenancy Act 1950
In this petition under section 561‑A, Cr.P.C. prayer for quashment of the relevant portion of the impugned orders, dated 2‑3‑2002 of the learned Additional Sessions Judge‑111, Charsadda is made by the petitioner in the background of the facts that admittedly the petitioner was tenant under the respondent over the disputed land under a proper lease, but on expiry of the lease period, the respondent without having recourse to the legal provisions of law for his ejectment, filed a complaint against the petitioner under section 145, Cr.P.C. before the M.I.C./Judicial Magistrate, which was dismissed after recording evidence of the parties, however, the learned Additional Sessions Judge on appeal; though upheld A the order of the Judicial Magistrate to the extent of rejection of the complaint of the respondent under section 145, Cr.P.C., but at the same time ordered the attachment of the suit property under section 146, Cr.P.C. till passing order by a competent forum about the actual possession of the parties over the disputed land.
2. After hearing the learned counsel for the parties, I am of the view that the impugned order of the learned Additional Sessions Judge is not sustainable because so far as possession over the disputed property is concerned, admittedly the petitioner was in possession of the same within two months next before the order passed by the Magistrate as required under section 145, Cr.P.C. Not only the petitioner has asserted that he is in possession of the suit property as lessee but the respondent himself in his statement has admitted that:‑‑
This shows the possession of the petitioner over the suit property within the required period. No doubt, the lease of the petitioner had expired, but the remedy for the respondent was not lying in initiating proceedings against the petitioner under section 145, Cr.P.C. as proper course for ejectment is provided under section 23 of the N.‑W. F. P. Tenancy Act, 1950 for such‑like tenants.
3. For the aforesaid reasons, the impugned findings of the learned Additional Sessions Judge with regard to the attachment of the disputed land and auctioning of the standing crops are hereby quashed.
H.B.T./522/P
Petition accepted.