Brief Facts
- Petition was filed under Section 482 Cr.P.C. was against an order passed by SDM issuing directions to the Tehsildar and SHO to handover the Subject land from Party No. 2 to Party No. 1.
- In 1998 proceedings were initiated under Section 145 of the Cr.P.C. on the Subject land and Preliminary orders for attachment were made by the Magistrate. The land was later attached and the SHO was designated as the Receiver.
- Subject land remained under attachment under Section 145 Cr.P.C. till 2016 and on 24.10.2016 the Magistrate decided the complaint and declared the possession of Party No. 2 over the land. This order was challenged in Revision in which the Revisional Court quashed the order and held that Party 2 failed to prove its possession and declared that Party 1 was in possession of Subject Land two months prior to the attachment proceedings.
- Party 2 approached the High Court against this order of Revisional Court but the same was dismissed and thereafter the Party 2 approached the Supreme Court. The Supreme Court denied to interfere and directed for expeditious disposal of the civil suit. In pursuance to the order of the Revisional Court, which attained finality till the Supreme Court, the Tehsildar and SHO handed over the possession of the land to Party 1 vide the order dated 20.10.2022.
Issues
- Whether the parties to the litigation can be allowed to reopen the concluded proceedings which have been upheld up to Hon’ble Apex Court?
- Whether the last word spoken and law laid by the Highest Court of the Land must be given effect to?
- Whether the consequential order of the SDO to handover the possession of land to Party 1 can be independently challenged by the Party 2 when the Party has already lost till the Supreme Court while challenging the order passed under section 145 of the Cr.P.C. for appointment of the receiver on the subject land?
- Whether the principles of Res Judicata and Stare decisis bar the maintainability of present petition?
Held
- High Court dismissed the Petition and concluded that entertaining the present Petition would tantamount to reopening the litigation which has already attained finality till the Apex Court.
- In continuation of the orders dated 30.10.2018 passed by Additional Sessions Judge, Malpura (Tonk) and order dated 30.09.2022 passed by this court, learned Magistrate has directed the Tehsildar and SHO Todaraisingh to handover the possession of the land in question to Party No. 1 vide impugned order dated 20.10.2022. No new order has been passed and the impugned order dated 20.10.2022 has been passed in consonance with the orders passed by the Revisional Court and High Court, which have been upheld up to Hon’ble Supreme Court. Hence under the circumstances, proceedings initiated under Section 145 Cr.P.C. and the orders passed on these proceedings have attained finality up to the Hon’ble Supreme Court. Now it is not permissible to the parties to reopen the concluded proceedings as it would amount to abuse of the process of the law.
- Once the Hon’ble Apex Court has put a seal to the first round of litigation against the petitioners then the second round of litigation by the same petitioners is not permissible. Thus the doctrine of finality has to be applied in a strict legal sense. Judicial propriety and decorum demands that the law laid down by the highest court of the land must be given effect to.
- The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. It is well settled principle of law that “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” meaning thereby one cannot do indirectly what one cannot do directly. The attempt in this petition is clearly to seek a substantive modification of the judgment passed by this court on 30.09.2022 which has been upheld and approved by the Apex Court on 25.11.2022. Such an attempt is not permissible under any law.
- There is no force in the arguments raised by the counsel for the petitioners now at this stage where the matter has been decided and concluded up to Hon’ble Apex Court that the proceedings under Secton 145 Cr.P.C. were not maintainable as the civil suit is pending between the parties for adjudication of their rights. It is worthy to note here that the Revisional Court or the High Court have not determined the rights of the parties but only findings have been recorded that Party No. 2 was not in possession, two months prior to the date of initiation of proceedings under Section 145 Cr.P.C., of the land in question on 03.12.1998. Obviously now the Civil Court would decide the rights and title of the parties over the land in question at the time of final adjudication of the pending suit before it.
Relevant Para No.
17, 18, 24, 25