The Delhi High Court Single Bench comprising Justice Asha Menon in the case of Murari Mirchandani vs State & Ors. observed that In the event of a threat to the peace, procedures would be launched u/s 107 and not u/s 145 CrPC once the civil proceedings were pending.
The petitioner, a real estate developer, claimed that the Delhi Development Authority (“DDA”) leased a property to late Sh. Surender Kumar Sardana, who died in 2011, leaving his siblings, Jitender Sardana (since deceased, respondent no. 3 herein), Sushma Diwan, Sushila Arora (since deceased), and Pushpa Mendiratta, as legal heirs. While the respondent No.3 petitioned the DDA to change the property’s ownership to the surviving legal heirs, the respondent No.2 filed a complaint, claiming to have purchased the property from Sh. Surender Kumar Sardana and possessing all original documents. The DDA informed respondent No. 3 that due to the complaint, no action could be taken.
The SDM could not have brought up the issue of de-sealing while civil proceedings were pending. Ram Sumer Puri Mahant v. State of U.P., Indubhai Patel v. State, Dalbir Singh v. State (NCT of Delhi), and Roop Lal Bhalla v. State were cited to argue that civil proceedings could not be started while civil proceedings were pending. It was also argued, based on Xxx v. State of Kerala, that courts are not empowered to recall their own judgments under Section 362 CrPC.
Despite the fact that the civil case was still pending, no summons had been issued to respondent No.2 in that case. In addition, the Coordinate Bench of this Court had not issued an injunction against respondent No. 2, who was the defendant No. 5 in that suit. As a result, the respondent No.2 was well within his rights to ask the SDM to de-seal the property and hand it over to him, as he was legally entitled to it.
The Bench stated that if there is a dispute over a property’s title, only a civil court can resolve it. The SDM must follow the civil court’s determination of the parties’ inter se rights, whether interim or final. According to Dalbir Singh (supra), if there was a threat to breach of peace despite the civil case being pending and orders being issued by the civil court, then proceedings would be initiated u/s 107 and not u/s 145 CrPC.
The Court also stated that the Notice of 2021 was perverse on its face for two reasons. To begin with, the SDM has not observed an emerging ground of public disturbance, which could have justified the re-opening of the case, though, once again, the provision to be invoked in that event was u/s 107 CrPC. The SDM then made the second error by issuing the contested notice without producing any civil court order determining the rights, whether it was an interim or final order.
The SDM’s action was completely illegal and a perverse exercise of power, according to the Bench. As a result, the Notice was quashed in order to prevent abuse of the legal system.
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