PAKAMARAJA NAICKER Vs. CHIDAMBARA NADAR

JUDGEMENT

(1.) These are two petitions to revise a consolidated order made by the Additional First Class Magistrate, Virudhunagar, in M. C. Nos. 36 and 38 of 1951 on his file, finding the respondents to be in possession of the property in dispute and under Section 145(6) placing them in possession thereof.

(2.) Mr. Narayanaswami Aiyar, the learned advocate for the petitioners, took the preliminary objection that the entire proceedings before the Magistrate are void for the reason that no preliminary order as required by Section 145(1), Cr. P. C., was issued. Mr. Vaidyanatha Iyer, on the other side, replied that as a matter of actual fact orders under Section 145(1), Cr. P. C., must have been issued because in a letter dated 22-9-1951, addressed by the Joint Magistrate, Bivakasi, to the District Magistrate, Ramanathapuram, suggesting that the case be transferred to the Additional First Class Magistrate, Virudhunagar, it is stated, "as it is anticipated a dispute likely to cause a breach of the peace and the parties were served an order under Section 145(1), Cr. P. C. (sic)". Now no copy of such an order exists in the file. On a refrence made to the Additional First Class Magistrate, Virudhunagar, he reported

(3.) Mr. Narayanaswami Aiyar, for the petitioners, contended that the omission to issue an order under Section 145(1), Cr. P. C., vitiates the entire proceedings of the Magistrate. In support of this argument he referred to the decision of Ayling J. in -- 'Subbarama" Aiyar v. Mariya Pillai', AIR 1914 Mad 78 (A), where the learned Judge observed oh p. 81: