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1973 DIGILAW 216 (PAT)

Ishar Singh v. Ram Janam Singh

1973-11-20

S.K.JHA

body1973
S. K. Jha, J. The petitioners were the first party in a proceeding under section 133 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). They have come up to this Court against an order dated the 4th August, 1972, passed by the Sub-divisional Magistrate, Garhwa, recalling his order dated 1st April, 1972, by which an order under section 136 of the Code had been purported .to be passed making the interim order under section 133, of the Code against the opposite party (second party) absolute. 2. The facts relevant for the disposal of this application are shortly these. On the 23rd September, 1971, the petitioners filed an application praying for action under section 133 of the Code against the opposite party. The petitioners claimed that they, as raiyats of village Korga, had the right of pasturage over, Plots Nos. 46, 319, 551, 553, 573, 592, 594, 603, 607, 170, 608, 331, 552, 554, 591, 593, 602, 604, 608 and 609 of the village. These plots were alleged to be gairmazarua lands and the record of rights, it was said disclosed that the raiyats of this village and other villages had a right to graze their cattle thereon. According to the case of the petitioners, the members of the second party (opposite party) had encroached upon some portions of the aforesaid lands and started cultivating them, thus obstructing the right of pasturage claimed by the petitioners on behalf of the general public of the villages concerned, The application having been sent for inquiry to the Block Development Officer, Nagar, the inquiry report was received on the 11th December, 1971 and on that very day, the learned Sub-divisional Magistrate passed an interim order under section 133 of the Code and issued notices to the members of the' second party (opposite party) asking them to remove the encroachment on the lands in question and to show cause on the 20th January, 1972. On the 20th January, 1972, the opposite party appeared and filed an application for time for filing their show cause and the learned Magistrate fixed the 17th of February, 1972, as the date on which the opposite party should file their show cause. On the 17th February, 1972, the show cause was not filed and the time was again extended till the 1st April. 1972. On the 17th February, 1972, the show cause was not filed and the time was again extended till the 1st April. 1972. On the Ist April, 1972, when the opposite party neither appeared nor filed any show cause, an ex parte order was passed by the learned Sub-divisional Magistrate making the interim order under section 133 of the Code absolute against the opposite party, and directing them to remove the encroachment by the 4th May, 1972. On the 3rd June, 1972, the opposite party filed an application before the learned Sub-divisional Magistrate for recalling the order dated the Ist April, 1972 and prayed to afford them opportunity to prove that petitioners were not entitled to any relief under section 133 of the Code as they had no right to graze cattle on the plots in question. This application for recalling the order was finally heard and disposed of by the impugned order dated the 4th August, 1972. The learned Sub-divisional Magistrate held, although on a concession made by the lawyer for the petitioners before him, that the order under section 136 of the Code was not a final order and as such the bar imposed by section 369 of the Code was not attracted to the case of recalling or a review of such an order. The learned Magistrate also further held that it was a fit case in which, although the application was filed beyond the period of limitation prescribed under the Limitation Act of 1963, the delay could be condoned under section 5 of the Limitation Act. Learned Sub-divisional Magistrate accordingly, suo motu, condoned the delay under section 5 of the Limitation Act and having found it a fit case in which the order should be recalled, he did actually recall his previous order dated the 1st April, 1972, by the impugned order. 3. Mr. S.K. Choudhuri, learned, counsel for the petitioners has urged two points in support of this application. He has contended in the first place that the order under section 133 of the Code is a final order attracting the provisions of section 369 of the Code, so that the learned Magistrate was not competent to recall or review any such order on any ground. He has contended in the first place that the order under section 133 of the Code is a final order attracting the provisions of section 369 of the Code, so that the learned Magistrate was not competent to recall or review any such order on any ground. The second point urged by learned Counsel was that in any view of the matter since no application under section 5 of the Limitation Act was filed by the opposite party for condoning the delay in filing the application for review, the court below was not justified in condoning the delay under the purported exercise of its power under section 5 of the Limitation Act suo motu. The learned Counsel further urged that if and when such an application would have been filed by the opposite party the principles of natural justice would make it incumbent upon the learned Magistrate to issue notice of such an application to the petitioners to show cause as to why the delay in filing the review application should not be condoned. 4. In my view, there is not much substance in the first point urged by learned Counsel for the petitioners Mr. Dayal, learned counsel for the opposite party, has invited my attention to numerous decisions of this Court as well as of other High Courts which have laid down the proposition that the provisions of section 139-A of the Code are mandatory and the first duty of the Magistrate on the appearance of the party, in pursuance of the notice under section 133 of the Code, is to question him, without waiting for the objection being raised by the party concerned as to whether he denies the existence of the public right over the place of obstruction. (Refer to Sheikh Sadir Vs. Sabarali AIR 1925 Cal 736, Matabbar Malta Vs. Golam Panjaton AIR 1930 Cal. 486, Muni Lal Vs. Public of Bhagalpur AIR 1941 Pat. 38, Akulananda Vs. State AIR 1954 Ori. 210 , Jangal Prasad Vs. Ramesar Prasad AIR 1960 Pat. 538 and Kali Charan Ganguli Vs. Auoy Charan Sardar 65 CWN 1244. (Refer to Sheikh Sadir Vs. Sabarali AIR 1925 Cal 736, Matabbar Malta Vs. Golam Panjaton AIR 1930 Cal. 486, Muni Lal Vs. Public of Bhagalpur AIR 1941 Pat. 38, Akulananda Vs. State AIR 1954 Ori. 210 , Jangal Prasad Vs. Ramesar Prasad AIR 1960 Pat. 538 and Kali Charan Ganguli Vs. Auoy Charan Sardar 65 CWN 1244. It is the admitted case of the parties that when the opposite party first appeared before the learned Sub-divisional Magistrate in response to the notice issued to them, no question was put to them by the learned Magistrate whose bounden duty was so to do as to whether they denied the" existence of the public right of pasturage over the lands in question. That being so, mere non-filing of the show on the day, or the adjourned date by the opposite party, would not have conferred any jurisdiction on the learned Magistrate to have passed any ex parte order under section 136 of the Code, and such an opportunity been given, the opposite party would have, as they have subsequently done, denied the existence of such a right. Thereafter, would have been the duty of the learned Magistrate to have asked the party concerned to enter into evidence in support of the denial of such a right and after that had been done, appropriate orders under section 137 of the Code ought to have followed. In this view of the matter, in my view, the order purported to have been passed under section 136 of the Code on the 1st April, 1972, was not a final order to which the provisions of section 369 of the Code or the principles embodied therein could apply, so as to debar the court concerned to review or recall the order. Reference in this connection may be made to an earlier decision of this Court in the case of Ram Saran Vs Ram Lagan A.I.R. 1917 Pat. 124 where, however, it was, merely by way of obiter dictum, observed by his Lordship Jwala Prasad, J., as follows : "On general principle however it may be conceded that the Magistrate was entitled to set aside the order passed by him under section 136 ex parte and restore, the case to the pending file." Mr. Choudhuri strongly relied upon a Bench decision of this Court in the case of Atal Behari-Singh Vs. Choudhuri strongly relied upon a Bench decision of this Court in the case of Atal Behari-Singh Vs. The State or Bihar 1972 B.L.J.R. 181 as an authority for the proposition that a final order under section 107 of the Code dropping the proceeding on a finding that there was no apprehension of the breach of the peace could not, in the circumstances, be reviewed. I respectfully agree with the view of the Division Bench expressed in the aforesaid case and think it fit to produce below, what has been stated or defined to be a final Order for the purpose of invoking the principles incorporated in Section 369 of the Code, quoting with approval a paragraph from the Judgment of Lord Alverstone, C. J., in the case of Bozson Vs. Altrincham Urban Council: (1903) I K.B.D. 547 : "It seems to me that the real test for determining this question ought to be this: Does the Judgment or order, as made, finally dispose of the rights of the parties? If it does, then 'I think it ought to be treated as a final order but if it does not, it is then, in my opinion, an interlocutory order. 'The above text of finality of the order was quoted with approval in lsaacs & Sons V. Salbstein: (1916) 2 K.B.D. 139 at 146. In Salaman V. Warner: (1891) l. B. D. 731, on a review of a large number of decision, the test of a final order was laid down as : "A final 'order' is one made on such an application or proceeding that, for whichever side the decision is given it will, if it stands, finally determine the matter in litigation." Applying the aforesaid test, it cannot be said that the order passed on the Ist April, 1972, could be termed as a final order. The first contention of learned counsel for the petitioners in this case cannot, therefore, be accepted 5. The second point raised by Mr. Choudhuri, however, has some substance. In the absence of any application under section 5 of the limitation Act, and in the absence of any notice to the petitioners to show cause as to why the delay should not be condoned, the order of the learned Magistrate condoning. The second point raised by Mr. Choudhuri, however, has some substance. In the absence of any application under section 5 of the limitation Act, and in the absence of any notice to the petitioners to show cause as to why the delay should not be condoned, the order of the learned Magistrate condoning. the delay is illegal for two reasons; firstly because the learned Magistrate could not, suo motu, can done the delay under section 5 of the Limitation Act, and Secondly, if and when such an application would have been filed, notice to the petitioners would have been necessary, for otherwise, it would be offending the principles of natural justice. I would, therefore, allow this application, set aside the order passed by the learned Sub-divisional Magistrate on the 4th August, 1972 and remit the case bake to him for giving an opportunity to the opposite party to file an application under section 5 of the Limitation Act, if they are so advised, and to the petitioners to show cause why such an application should not be allowed and after hearing both the parties, final order should be passed in accordance with law. 6. In the light of the observations made above, the rule is made absolute and the case remanded. Application allowed. Case remanded.