Patna High Court
Brahmdeo Narain Singh And Ors. vs Mishri Dhobi on 5 May, 1958
Equivalent citations: AIR1959PAT430, 1959CRILJ1098, AIR 1959 PATNA 430
ORDER N. Imam, J.
1. This is an application in revision against an order of the learned trial Court in a proceeding under Section 145 Cr. P.C, The learned trial Court found the opposite party in possession of the disputed land and directed the petitioners not to disturb the possession of the 1st party, who are the opposite party, until evicted by the orders of a competent civil court.
2. Mrs. D. Lall, appearing on behalf of the petitioners, has submitted that the learned trial court should not have disposed of the statement on affidavit in the manner that he did. I would quote the relevant passage of the judgment of the learned Magistrate: "All the 3 sets of contesting parties have filed documents to support their respective possession. It may be mentioned here that the affidavits filed on their behalf have no evidentiary value as they are ex parte matters done in mechanical way and hence I do not feel inclined to attach any importance to such documents". I would remind the learned Magistrate that the whole purpose of the new procedure is that statement on affidavit should be looked into in order to avoid prolonged section 145 proceedings. But should the learned Magistrate in any proceeding find that the statement on affidavit is not sufficient or for other reasons thinks that witnesses should be examined it is open to him to examine witnesses. I would refer to Sub-section (4) of Section 145 as amended by Act 26 of 1955:
"(4) The Magistrate shall then, without referrence to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the enquiry, so far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein:
Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date .....".
It is clear from the above that the statement on affidavit must be taken into consideration. It will not do for the learned Magistrate to brush aside statement on affidavit by saying that it has no evidentiary value as they are ex parte matters. These matters have been deliberately made ex parte by the Act itself. To brush aside statement on affidavit on this ground is unjustifiable. If, however, the learned Magistrate found that statements on affidavit were such that he was not able to get much assistance in order to determine who is in possession then it was open to him to summon and examine any person whose affidavit was put in as to the facts contained therein.
The failure of the learned Magistrate to do this has, in my opinion, vitiated the order of the learned Magistrate. I would, therefore, set aside the order of the learned Magistrate and send the case back for disposal of the case by some other Magistrate with competent jurisdiction. The application is accordingly allowed.