THOMAS VARKEY Vs. IDICULA JOHN

JUDGEMENT

(1.) The revision is directed against an order of the Division First Class Magistrate, Kottayam, making absolute a conditional order passed under S.130, Travancore Criminal Procedure Code. The order was challenged on the ground that the Magistrate had not in making the first order final conformed to the procedure prescribed by the provisions in Chap.10.

(2.) On receipt of the preliminary order the present petitioner appeared before the Court and filed a written statement denying the existence of the public right of way claimed by the petitioner before that Court. Thereafter the case was posted for the evidence from the side of the latter and ultimately on 6.5.1950 the Court passed the final order after declaring the present petitioner who was absent ex parte and recording the evidence of the petitioner in the court below. The learned Magistrate would seem to have omitted to notice S.137 (139 A under the Indian Criminal Procedure Code) altogether. Under that section when a person against whom the preliminary order is made appeared before the Court the Magistrate had to question him as to whether he denied the existence of the right claimed and if he denied such right an enquiry has to be held as to whether there is any reliable evidence in support of such denial. Further procedure to be adopted in the case will depend upon the result of such enquiry. No enquiry as contemplated by the section was held at all in this case. Decided cases go to show that when the party against whom the right is claimed denies it in his written statement to call upon the party who claims the right to lead evidence under S.134(137) would be without jurisdiction and that the subsequent proceeding would all be void. See Dhananjoy Pal v. Nagendra Sankar, AIR 1930 Cal. 144 and Manohar Lal v. Emperor, AIR 1931 Lah. 62 .

(3.) Assuming that what enquiry the Magistrate held in this case was that contemplated by S.137 he was not entitled to pass the final order at the conclusion of that enquiry. The section contemplates two stages in the enquiry so much so the Magistrate was after finding that there was no reliable evidence in support of the denial of the right claimed bound to proceed to hold the enquiry under S. 134 or 135 as the case may be. Notwithstanding the absence of the present petitioner on the day on which the final order was passed the Court had to give him an opportunity to lead evidence in the enquiry contemplated by S. 134 or 135. The order passed contrary to these provisions cannot be sustained, and the curative provisions of the Code are of no avail to validate it. See Changu v. Suragpal AIR 1948 Oudh 19 and Lal Behari v. Jatindra Chandra AIR 1949 Cal. 57 .