M. K. Chawla, J. (Oral ). ( 1 ) PETITIONER have challengedthe correctness of the order of the learned Sub-divisionalmagistrate dated 14-1-1985, whereby a direction was issuedto the S. H. O. Police Station Kamla Market to deliver Jackthe possession of the disputed room in premises No. 5285,ajmeri Gate, Delhi, to the respondents. ( 2 ) LEARNED counsel for the parties agree that in the present proceedings initiated by the respondents u/s. 145 of thecode of Criminal Procedure before the learned S. D. M. Kotwali, Delhi, the petitioners were proceeded ex parte anddeprived of their right to participate, examine and cross-examine the witnesses. Can this fact by itself, be enough toset aside the finding of the court below in the exercise ofpowers u/s 397 of the Code of Criminal Procedure by thiscourt. Learned counsel for the respondent, to start with, hasraised two-fold objections to the maintainability of the revisionpetition; inasmuch as all the parties are not before the Courtand that the petitioners should have approached the courtwhen they were proceeded ex parte. Both these preliminaryobjections being highly technical are even otherwise devoid ofany substance. In the first instance, all the respondents havea common cause. In the lower court, they were representedby the same counsel. It may be that by in advertance, in thememo of parties, the name of one of the respondents is missing but in order to forestall the objection, the petitioners havealready moved an application (Cr. M. 359/86) for the amendment of the memo of parties and to bring on record the otherrespondents who were initially the petitioners before the lowercourt. However, without going into the merits of the saidapplication, I am of the opinion that by virtue of Section 403cr. P. C. , once the record of the case has been summoned andis being perused; the absence of any of the respondents/partieswill have no material bearing and is not fatal to the case. The second objection can be overcome if one refers to theprovisions of Sections 397 and 401 of the code of Criminalprocedure, which makes it amply clear that the order proceeding ex parte is an interim order against which no appeal orrevision lies. The present revision challenging the final orderis thus maintainable. ( 3 ) ON merits, I do not feel any difficulty in setting asidethe impugned order. One has only to peruse few of the ordersof the learned S. D. M. Delhi. The present revision challenging the final orderis thus maintainable. ( 3 ) ON merits, I do not feel any difficulty in setting asidethe impugned order. One has only to peruse few of the ordersof the learned S. D. M. Delhi. The proceedings u/s 145 Criminal Procedure Code. were initiated on the report of the S. H. O. , P. S. Kamlamarket, Delhi, dated 21-7-1979. On 23-7-1979, preliminaryorder u/s 145 (1) Criminal Procedure Code. was drawn up. The parties weredirected to appear in person. On that very day, an order ofattachment of the disputed room in premises No. 5285,ajmeri Gate, Delhi was also passed. Subsequently, theorder of attachment was amended and the entire first floorof the building was attached on 15-2-1980. The subsequentorder was, however, set aside by the High Court. The casewas then adjourned for recording the evidence of the firstparty. No witness was either summoned or produced. Theproceedings remained in that state for more than 3 years. ( 4 ) THE order dated 4-1-1984 shows that in the absenceof the counsel for the second party, the case was set down forrecording first party s evidence on 19-1-1984. However, thecase was taken up on 18-1-1984. On that day, only Sanwaldass Gupta was present and the case was adjourned to6-2-1984. The order of that date reads as under :- "only first party present. Second party was notpresent on last two dates. On 18-1-1984, I hadordered that if the second party is not present onthe next date, case will be taken ex parte. Accordingly, the case is ordered ex parte. Forevidence of first party, adjourned to 29-2-1984. " IT appears that the second party came to know of thelast two days proceedings. On 29-2-1984, the counsel forthe second party put in appearance and prayed for the settingaside of the ex parte proceedings or in the alternative, toallow them to participate in the proceedings, from then onward. This prayer was turned down. The second party wasthus deprived of the right to cross-examine the witness ofthe first party or to produce any evidence in rebuttal. ( 5 ) THE learned S. D. M. on the basis of the record case tothe conclusion that the first party was in possession of thedisputed room within two months of the order of attachmentand directed the S. H. O. of the area concerned to deliver backthe possession to the first party. ( 5 ) THE learned S. D. M. on the basis of the record case tothe conclusion that the first party was in possession of thedisputed room within two months of the order of attachmentand directed the S. H. O. of the area concerned to deliver backthe possession to the first party. However, while coming tothis conclusion, learned S. D. M. referred to and relied uponthe written statement of the second party. 1856. This order cannot be allowed to stand inasmuch asthe learned lower court has no jurisdiction or may justificationto proceed ex parte against the respondents 1 second party. Nojurisdiction because Section 145 Criminal Procedure Code. itself does not confer any power to the Court to initiate ex parte proceedingsagainst a contesting party. No justification because of facts. Once the case has been adjourned to 19-1-1984 for recordingthe first party s evidence, there was no occasion for the courtbelow to take up the case a day prior to the date alreadyfixed. Certainly, the counsel for the parties could notanticipate without there being any notice or an information that the case will be taken up on 18-1-1984. It wasonly for that reason that neither of the counsel for the partiesput in appearance, except the first party Shri Sanwal Dassgupta. On the subsequent date also, no counsel for theparties was present. By this time, the parties and their counselhad come to know that the case will be taken up on 29-2-1984. On that day, counsel for the second party made earnest effortsfor the setting aside of the ex parte proceedings initiatedagainst them. This argument did not prevail with the learneds. D. M. Thus, the second party was prevented from participating in the proceedings from that day onwards. At thisstage, it will be relevant to mention that for the last many manyhearings, over a span of more than 3 years, the first party didnot produce any witness. There was absolutely no worthwhile progress in the case. No prejudice would have beencaused to the first party in case the ex parte proceedings hadbeen set aside or at least from that day onward, the secondparty would have been allowed to participate in the proceedings. This would have been the just and proper order. By notacceding to the request of the second party, their valuable righthas been violated. The entire subsequent proceedings from6-2-1984 are liable to be quashed. 7. This would have been the just and proper order. By notacceding to the request of the second party, their valuable righthas been violated. The entire subsequent proceedings from6-2-1984 are liable to be quashed. 7. This aspect can also be looked into from anotherangle. If the second party has been proceeded ex parte, thenthe learned S. D. M. was not justified to refer to or find faultin the written statement of the second party in his order. Thefirst party cannot be allowed to have the double advantage,in ousting the second party from the proceeding have beentaking advantage of some averments of their written statement,without affording then the opportunity to explain their standby way of either cross-examining the witnesses or producingthe oral as well as documentary evidence in rebuttal. Theyhave beer condemned unheard without their fault. Certainlythis cannot be allowed. ( 8 ) AS a result of the above discussion, I hereby acceptthe revision petition, set aside the impugned order dated14-1-1985 by which the S. H. O. of P. S. Kamla Market, wasdirected to hand over the possession of the disputed room toparty No. 1. The order of attachment dated 23-7-1979 shall,however, stand. The proceedings are remained to the courtof the S. D. M. , Kotwali, Delhi with a direction to allow thesecond party to join the proceedings from the date when theywere proceeded ex parte. The learned S. D. M. shall makeendeavour to dispose of the controversy at his earliest convenience, preferably within six months from today.