KUNJUKUTTY AMMA Vs. RAGHAVA KURUP

JUDGEMENT

(1.) THIS is an application to revise the order passed by the Executive First Class Magistrate, Adoor directing under S. 145 (5) Cr. P. C. , that further proceedings in M. C. 14 of 1964 be dropped and the attached properties be restored to the persons from those possession they were taken.

(2.) ON being satisfied from the report of the Sub inspector of Police, Aranmula that a dispute likely to cause a breach of the peace existed between the A and B parties relating to possession of two buildings situated in S. No. 281/14/13 of Mallapuzhasseri Village in pathanamthitta Taluk, the learned Magistrate on 30-9-64 passed a preliminary order requiring the parties to attend his court and put in written statements of their respective claims as respects the fact of actual possession and further requiring them to put in documents and affidavits, if any, on which they relied in support of their claim. ON receipt of the notice B-party No. 1, who is the first respondent there, came and objected to the initiation of proceedings stating that he is in undisputed possession of the property, that the Munsiff's court of Pathanamthitta has issued an order of injunction restraining the A-party from entering the property, that therefore no dispute exists and praying for cancellation of the preliminary order. Both parties produced documents and on a perusal of the documents and on a consideration of the facts and circumstances of the case learned Magistrate was satisfied that there was actually no occasion for a dispute between the parties as the civil court had already taken seizin of the matter and there being no likelihood of any breach of the peace cancelled the preliminary order. The petitioner who is the A-party in the case has, therefore, come up in revision.

(3.) THE same view has been taken by the Madras High Court in a number of rulings beginning from Suryanarayana v. Ankineed Prasad Bahadur (ILR. 47 Mad. 713) where justice Spencer following the decision of the Calcutta high Court observed that a Magistrate had power to drop proceedings at any stage. Mr. Justice Krishnan in Narasayya v. Venkiah (ILR. 49 Mad. 232) stated that it was not open to a party to come up to the High Court and say that the magistrate had no business to drop proceedings on the ground that there was no likelihood of a breach of the peace without giving him an opportunity to show that there was such likelihood. In the opinion of the learned judge it was the duty of the Magistrate to be satisfied that there is no breach of the peace in his district and if he is so satisfied it is not for a private party to object. THE same view has been taken by Ramaswamy, J. , in Velur devasthanam v. State (1952 M. W. N. 53); and by Balakrishna Ayyar, J. , in In re ivaturi Sambasiva Rao (AIR. 1954 Mad. 1017) and also by Chandra Reddy, J. , (as he then was) in Golla Kosanna v. Beldari Ramaswami (1954 M. W. N. Cr. 272 ). THE Mysore High Court in a recent decision in Laxmana subrao Patil v. Smt. Bhagubhai (1964 M. L. J. Cr. 60) has also taken the same view.