JUDGMENT : B.N. Misra, J. - Petitioner was the first party and the opposite parties were members of the second party in Criminal Misc. Case No. 12 of 1978, a proceeding u/s 145, Code of Criminal Procedure. The proceeding was initiated on 24-1-1978 on the basis of a report submitted by the police. The dispute relates to "Imperial Talkies", a cinema house at Jharsuguda. According to the Petitioner, the premises on which the cinema house stands were initially leased out to one Abdul Sukur on 8-2-1953 for the purpose of running the cinema. Sukur left the premises after one year. By virtue of an agreement dated 24-12-1957 S.K. Babu, the power-of-attorney holder of opposite party No. 1, took on lease the premises and ran the cinema till 1963. The cinema licence stood in the name of opposite party No. 1. On 15-1-1965 of opposite party No. 1 sublet the premises to the Petitioner on a monthly rent on Rs. 551/-. The cinema hall had been demolished during communal riots in 1964 and the Petitioner had reconstructed the same. In June, 1965 S.K. Babu surrendered his rights in favour of R.K. Bajaj, the owner of the premises. Thereafter the Petitioner took on lease the premises from R.K. Bajaj on a monthly rent of Rs. 101/-. As the cinema licence stood in the name of opposite party No. 1, the Petitioner continued to pay to her the monthly rent of Rs. 551/-. The Petitioner claims to have been in continuous possession of the cinema hall since 1965 and his further case is that on 25-11-1977 he purchased the land on which the cinema hall stands from the owner by a registered deed of sale. The cafe of the opposite parties is that the late husband of opposite party No. 1 had acquired the cinema hall together with all the machineries from one Abdul Sukur and one Md. Hussain by two unregistered documents dated 7-7-1956 and 10-7-1956 respectively and since then he became the rightful owner of the cinema house. The land on which the cinema house stands belongs to Ramkumar Agarwalla who had let out the same to the said Abdul Sukur and Md. Hussain. Abdul Sukur had constructed the cinema building. Hussain by two unregistered documents dated 7-7-1956 and 10-7-1956 respectively and since then he became the rightful owner of the cinema house. The land on which the cinema house stands belongs to Ramkumar Agarwalla who had let out the same to the said Abdul Sukur and Md. Hussain. Abdul Sukur had constructed the cinema building. After the death of the husband of opposite party No. 1, the opposite parties took over possession of the cinema hall and ran the cinema through S.K. Babu who was their power-of-attorney holder. The cinema licence was granted to opposite party No. 1. Ramkumar Agarwalla executed a lease-deed on 24-12-1957 in favour of S.K. Babu in respect of the premises of the cinema house on a monthly rent of Rs. 51/- and the said lease is continuing. On 15-1-1965 S.K. Babu leased out the cinema hall to the Petitioner for a period of five years on a monthly rent of Rs. 551/-. The Petitioner continued as the lessee of the cinema hall and the machineries, etc. till the end of September, 1977. The opposite parties terminated the Petitioner's tenancy in October, 1977 and they are running the cinema since then. The other allegations of the Petitioner and his present possession have also been denied by the opposite parties. By his order dated 30-9-1978 the learned Executive Magistrate declared possession in favour of the opposite parties and hence this revision. 2. Learned Counsel for the Petitioner has urged that the order declaring possession in favour of the opposite parties should be set aside as in the proceeding before the learned Magistrate the Petitioner had been illegally denied the opportunity of adducing oral and documentary evidence in import of his case and of cross-examining the witnesses of the opposite parties resulting in serious miscarriage of justice. On going through the order sheet I find that on 27-7-1978 one witness for the Petitioner was examined, cross-examined and discharged and the case was posted to 8-8-1978 for further evidence of the Petitioner. On 8-8-1978 both parties were present. The opposite parties filed a petition for "Imposition of u/s 114, Code of Criminal Procedure on F.P. (sic)" and this petition was directed to be put up on 31-8-1978. Thus, 31-8-1978 was the date fixed for consideration of the Petitioner u/s 144, Code of Criminal Procedure filed by the opposite parties, not for evidence. On 8-8-1978 both parties were present. The opposite parties filed a petition for "Imposition of u/s 114, Code of Criminal Procedure on F.P. (sic)" and this petition was directed to be put up on 31-8-1978. Thus, 31-8-1978 was the date fixed for consideration of the Petitioner u/s 144, Code of Criminal Procedure filed by the opposite parties, not for evidence. On 31-8-1978 the leased Magistrate was on tour and the case was directed to be put up on 11-9-1978. On 11-9-1978 the learned Magistrate was again on tour and it was noted in the order sheet that the case was posted to 18-9-1978. This order dated 11-9-1978 has not been signed and there is an endorsement dated 18-9-1978 on the margin that the learned Magistrate was on law and order duty on 11-9-1978. On 18-9-1978 the learned Magistrate took up the case and passed the following order: No witness of F.P. is present. F.P. is also absent. Advocate for F.P. files hazira but absent on call. This shows the F.P. is not at all interested in his case. Hence the evidence of F.P. is closed. To 23/9/78 for evidence of S.P. It is clear from the order sheet that the case had not been posted for evidence of the Petitioner 31-8-1978 to 11-9-1978 and 18-9-1978. When the case had not been posted for evidence of the Petitioner but for consideration of the 144, Code of Criminal Procedure petition filed by the opposite parties, the Petitioner could not have been faulted for his failure to bring witnesses on any of the aforesaid three dates. Further, the order dated 11-9-1978 posting the case to 18-9-1978 has not at all been signed. This order has been written by someone other than the learned Magistrate who was in seisin of the case. Whoever wrote the unsigned order on 11-9-1978 certainly did not have any power to fix a date. The learned Magistrate's subsequent endorsement on 18-9-1978 that he had been otherwise engaged 11-9-1978 cannot cure the defect. In this connection reference may be made to a decision reported in AIR 1934 984 (Lahore), wherein it was held that when Judge was absent, the clerk of the Court had no power to fix the date and failure of the party to appear on a date that was not fixed by the Judge could not be called negligence. In this connection reference may be made to a decision reported in AIR 1934 984 (Lahore), wherein it was held that when Judge was absent, the clerk of the Court had no power to fix the date and failure of the party to appear on a date that was not fixed by the Judge could not be called negligence. Similar views have been expressed in Thakur Tej Singh v. Gopi Chand and Ors. 1968 Kashmir Law Journal 1. Though these two decisions dealt with civil cases, the sound principle enunciated therein must have application to criminal cases as well. In the present case, assuming that the bench clerk had written the order on 11-9-1978, he had no power to post the case to 18-9-1978 and failure of the Petitioner to appear and adduce evidence on 18-9-1978 does not amount to negligence. It must therefore be held that the learned Magistrate committed a serious irregularity in closing the evidence of the Petitioner on 18-9-1978. The case was finally disposed of by order dated 30-9-1978 and the Petitioner has explained that in September, 1978 he had gone to Calcutta where he fell ill and between 24-9-1978 and 4-10-1978 there were no train or road communications between Calcutta and Sambalpur on account of heavy rains. The Petitioner has sworn an affidavit in report of this fact and there is no reason to disbelieve him in this regard. 3. Learned Counsel for the opposite parties has submitted that since the Petitioner has challenged the final order dated 30-9-1978, the previous order dated 18-9-1978 is not now open to revision. In support of this contention reliance is placed on a decision reported in Bijendra Rai and Ors. v. Mohan Raj and Ors. 1978 Cr. L.J. 306. On going through the decision I find that it has no application to the facts of this case. In the present case the Petitioner has made the following prayer: The Petitioner most humbly prays that the impugned order be set aside and possession of the Petitioner be declared on the materials brought to the notice of the Court. L.J. 306. On going through the decision I find that it has no application to the facts of this case. In the present case the Petitioner has made the following prayer: The Petitioner most humbly prays that the impugned order be set aside and possession of the Petitioner be declared on the materials brought to the notice of the Court. If this prayer of the Petitioner is not accepted the impugned order be quashed and the case be remanded to some other magistrate to give full opportunity to the Petitioner to examine his witnesses and to prove his documents as he deems necessary and to cross-examine the witnesses of the second party. xxxx xxxx In view of the prayer the correctness and legality of the order of the learned Magistrate (dated 18-9-1978) closing the evidence of the Petitioner can be challenged in this revision. 4. For the reasons stated above, the order of the learned Magistrate (dated 18-9-1978) closing the evidence of the Petitioner and the final order passed on 30-9-1978 must be and are hereby set aside. This revision is allowed and the case is remitted to the learned Magistrate for disposal according to law subject to the following directions: (1) The undisposed of Petitioner (under Section 144, Code of Criminal Procedure) dated 8-8-1978 filed by the opposite parties must first be disposed of; (2) both parties shall be given an opportunity to adduce further oral and documentary evidence; (3) the Petitioner shall be allowed to cross-examine the witness of the opposite parties who have already been examined; and (4) the evidence already on record shall be treated as evidence in the case. Final Result : Allowed