SHANTI DESAI Vs. SANWAL DAS GUPTA

JUDGEMENT

(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 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.