CHIKKE GOWDA Vs. CHIKKARAJEGODWA

JUDGEMENT

(1.) This petition is directed against the order dated 23-2-1970 styled as Cancellation of the preliminary order under S.145 Cr.P.C. passed by the Sub Divisional Magistrate, Pandavapura, in Case No.C.Misc.5/68-69. The few facts that are necessary for a decision in this case may be narrated in brief as follows: In regard to a property situated at Kennal village, Pandavapura Taluk, the learned Sub-Divisional Magistrate, on information received by him as per 8.145(1) Cr.P.C. issued a preliminary order on 20-9-1968. The petitioner was the I Party and the respondent was the II Party before him. They appeared before the Sub Divisional Magistrate, in response to the preliminary order and filed their written statements. In due course both the parties produced their documentary evidence and the evidence of witnesses in the form of affidavits. Final hearing of the matter under S.145(4) of the Cr.P.C. was fixed by the learned Sub Divisional Magistrate on 16-2-1970.

(2.) It is contended on behalf of the petitioner that on 16-2-1970 the learned Sub Divisional Magistrate was not present in the head quarters and as such the office adjourned all the cases including the present one, to 16-3-1970 and on learning that date of hearing, the petitioner went away and that on 23-2-1970 when the counsel for the petitioner (in the lower Court) had gone to the Office of the Sub Divisional Magistrate on some other work, he was informed that the impugned order had been passed on that date by the learned Sub Divisional Magistrate. It is further contended on behalf of the petitioner that the order in question is one passed against the principles of natural justice and that it is on the face of it unsustainable in law as it does not fall within the provisions of either S. 145(4) or S. 145(5) Crl.P.C.

(3.) The undisputed facts are that both the parties had appeared before the Sub Divisional Magistrate and produced their written statements and documentary and oral evidence prior to 16-2-1970 and on 16-2-70 the case had been posted for final hearing. The order sheet maintained by the learned Sub Divisional Magistrate goes to show that the case had been last called on 3-1-1970 and adjourned to 16-2-1970. The further date that appears in the order-sheet is not as 16-2-1970 but as 23-2-1970. This goes to show that the case was either not at all called out on 16-2-1970, or if so called out, it is not recorded as to what happened on 16-2-1970. As per the contents of the order-sheet, it appears reasonable to hold that the case was not at all called out on 16-2-1970 and was suddenly called out on 23-2-1970. There is nothing available in the records received from the Sub Divisional Magistrate in this case, to show that intimation of Having posted the case to 23-2-1970 from 16-2-1970 had been issued to the parties. It is hence clear that the learned Sub Divisional Magistrate proceeded to pass the impugned order in the absence of the parties on 23-2-1970 and without intimation to them and without hearing them. It was expected of him to hear the case on its merits on the date fixed for final hearing which was 16-2-1970 or on a properly and legally adjourned date thereafter, but he has failed to do so. This is one of the reasons why the order is to be held as bad in law.