MANGALATHAMMAL Vs. MARIMUTHU THEVAR

JUDGEMENT

(1.) The 'A' party in M.C. No. 4 of 1986 on the file of the Tahsildar-cum-Executive II Class Magistrate, Thiruthuraipoondi, has preferred this revision against the order passed under S. 145( 1), Code of Criminal Procedure. It is seen that the Executive Magistrate passed the final order under S. 145, Cr. P.C. declaring the possession of the 'B' party and prohibiting the interference of 'A' party. The said order has been challenged on the following grounds : The 'B' party filed a suit in O.S. No. 200 of 1986 on the file of the District Munsif, Thiruthuraipoondi, for permanent injunction. They also moved for interim injunction in LA. No. 970 of 1986 and the same was not granted. The Court ordered only notice in Sept., 1986. It is contended that when the Civil Court has taken cognizance of the dispute between the parties, the learned Magistrate ought to have directed both the parties to work out their remedies in Civil Court in the civil dispute which is pending. It is further contended that the Magistrate has referred about his personal inspection of the lands and enquiry on 19-10-1986. The enquiry was done without notice to 'A' party and against the principle of natural justice. According to the petitioner, the Magistrate committed grave irregularity in relying on the affidavit as evidence, while passing the order under S. 145, Cr. P.C., without examining the defendant. The preliminary order is defective as it does not disclose the grounds of satisfaction.

(2.) On the other hand, it is the contention of the respondent that the respondent and his predecessors have been in possession of the land as cultivating tenants of the land. Their possession has been recognised by the predecessor of 'A' party in the previous suit O.S. No. 330 of 1963. The petitioner and her two sons attempted to evict the respondent forcibly and they failed in their attempt. During that incident, the respondent sustained grievous injury and the matter is pending investigation before police. The respondent is entitled to protection under the Cultivating Tenants' Protection Act. The proceedings under S. 145, Cr. P.C. were initiated against the petitioner and the respondent in the month of Oct., 1986 and the Magistrate after elaborate enquiry and after giving due consideration to the documents filed on the side of both parties, came to the conclusion. It is further stated that the petitioner had filed a revision before the Sessions Court and failed in her attempt to obtain stay. She has suppressed to mention this fact and filed this revision before this court, and as such the second revision is barred under S. 397(3), Cr. P.C. On that ground alone this revision is liable to be dismissed. The claim of the petitioner before this Court is not bona fide as she has suppressed the very filing of the revision before the Sessions Court and even on merits the petitioner has no case and as such no interference is called for in this revision.

(3.) As regards the maintainability of the revision, it is not in dispute that the petitioner had filed a revision before the Sessions Judge against the final order passed under S. 145, Cr. P.C. by the Executive II Class Magistrate in Cri. R. C. No. 20 of 1986 and moved for stay in Cr. M.P. 912/86 prior to the filing of this revision and since no order of stay was granted by the Sessions Court pending disposal of the revision, this revision has been filed and interim orders were obtained. The learned counsel for the respondent submitted that in view of the filing of the revision in the Sessions Court against the order of the Executive Second Class Magistrate, this revision is barred under S. 397(3), Criminal P.C. S. 397(3), Cr. P.C. reads as follows :