IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47088 of 2007 SHIVA SHANKAR PRASAD Versus 1. STATE OF BIHAR 2. Awadhesh Prasad Singh ……………………………. Opposite parties ----------- For the Petitioner: M/s Ajay Kumar Thakur & Ratan Kumar Sinha, Advocates For the State : Mr. Rajendra Nath Jha, APP For O.P.No. 2 : Mr Pushkjar Narayan Shahi,Sr. Advocate Mr Amitabh Bhardwaj, Advocates ---------- 4. 17.03.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State as also the learned Counsel for opposite party no. 2. The petitioner is aggrieved by the order of cognizance dated 18.9.2007 in G.O. Case No. 475 of 2007 under section 188 of the Penal Code passed by the CJM Samastipur on basis of a report/letter no. 3050 dated 17.9.2007 of the SDO Samastipur. The facts of the case are that both the petitioner and opposite party no. 2 are purchasers of certain lands from the erstwhile owner along with another Surendra Narayan Singh. A dispute arose with regards to dimension of the land between the petitioner and Surendra Narayan Singh when the latter filed Title Suit no. 3 of 2005 before the Munsif Samastipur and obtained an order of injunction which was set aside in Miscellaneous Appeal No. 28 of 2005 preferred by the petitioner. Ultimately Title Suit No. 3 of 2005 was dismissed in so far as the plaintiff is concerned and was decreed in favour of the petitioner/defendant. The opposite party no. 2 filed an application for intervention in the suit which came to be rejected on 19.3.2007. The opposite party no. 2 appears to have petitioned the Magistrate who passed certain interim prohibitory order dated 5.1.2007 under Section 144 Cr.P.C which is alleged to have been violated by the petitioner leading to notice for recommending proceeding under Section 188 Cr.P.C. The petitioner filed his reply whereafter the impugned order dated 11.9.2007 came to be passed leading to the order of cognizance. . Learned Counsel for the petitioner with reference to the judgment of Title Suit No. 3 of 2005 and the Decree thereupon appended at Annexure 5 to the supplementary affidavit submitted that a part of Plot no. 284 was also the subject matter of the suit. The impugned order dated 11.9.2007 in furtherance of which cognizance has been taken suffers from error of record when it holds that Plot no. 284 was not the subject matter of Title Suit No. 3 of 2005 which was concerned only with respect to Plot nos. 285 and 286. Based on this erroneous conclusion, contrary to the record, learned SDO declined to entertain the plea of the petitioner of misuse of the process of law by the opposite party no. 2 after he had been unable to make out a case for himself in civil proceeding and his application for intervention in the suit was rejected. Learned Counsel for the opposite party no. 2 sought to persuade this Court that Plot no. 284 was not the subject matter of the suit. He further submitted that whatever may be the position, the issue remains of violation of the order dated 5.1.2007 by the petitioner during its validity. This court, from the order dated 11.9.2007 read with Annexure 5 to the supplementary affidavit, the judgment and decree in Title Suit No. 3 of 2005, is satisfied that the order dated 11.9.2007 suffers from an error of record when it holds that Pot no. 284 was not the subject matter of the suit. It has already been discussed above that the claim of the plaintiff was rejected and the suit decreed in favour of the petitioner who was the defendant. The law also stands settled that finding of a civil court will take precedence over that of a criminal court. In the circumstances, the order of the SDO Samastipur dated 17.9.2007 and upon which cognizance has been taken on 18.9.2007 are not sustainable in their present form. Both the orders are set aside. The matter is remanded to the Court of SDO Samastipur to decide the matter afresh in light o the discussion hereinabove that part of Plot no. 284 ultimately came to be the subject matter of decision in the Title Suit and then proceed afresh to decide the issue of any alleged violation of the interim order under section 144 Cr.P.C., whether it be with regard to the lands which were subject matter of the suit in part or that part of Plot no. 284 which was not subject matter of the suit. This application is allowed. Snkumar/- (Navin Sinha,J.)