AYODHYA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Tripathi B.G. Bhai, learned counsel appearing for the applicant Shri P.N. Tripathi, learned counsel appearing for the contesting respondents and learned A.G.A. for the State.

(2.) The order dated 11.8.1999 passed by the Sub Divisional Magistrate, Itwa, District Siddharthnagar has been challenged in this application whereby the exparte orders dated 3.11.1995 and 4.11.1995 have been recalled. The proceedings under Section 145 Cr.P.C. commenced between the contesting parties in respect of the house on the basis of the police report dated 7.1.1988, at Police Station. Trilokpur. A preliminary order was passed on 23.1.1988. Objections were filed by both the parties and the Sub Divisional Magistrate Itwa, after considering entire facts of the case, and going through the documents and other evidence produced by the parties released the disputed house in favour of the applicant on 23 11.1990 under Section 145 (6) (a) Cr.P.C. This order was challenged in Criminal Revision No. 82 of 1990-Ganesh Narain and two Ors. v. Ayodhya and four Ors. The revision was allowed vide order dated 11.10.1991 setting aside the order dated 23.11.1990, passed in favour of the applicant. The case was remanded for afresh decision in the light of the observations made and the direction given in the judgment. After remand of the case, the parties appeared before the Sub Divisional Magistrate, Itwa, and filed their written statements and counter affidavit. The Sub Divisional Magistrate, fixed 3.11.1995 as next date in the case for evidence but none appeared on behalf of the contesting respondents. The applicant was present on the said date as such the Sub Divisional Magistrate proceeded exparte against the contesting respondent and closed the evidence of the respondents No. 3 to 5 fixing 4.11.1995 for argument and delivery of judgment. On 4.11.1995, again contesting respondents were not present and an order was passed on merit after appraisal of the evidence and the documents already on record. Once again the property was released in favour of the applicant vide order dated 4.11.1995. The recall application was filed on behalf of the contesting opposite parties which was allowed on 11.8.1999.

(3.) The submission on behalf of the applicant is that under the Code, there is no provision for recall or review of the order and as such the order dated 11.8.1999 is without jurisdiction and is liable to be set aside. The argument advanced on behalf of the applicant is that Section 362 Cr.P.C. imposes a complete bar on the courts to review or alter a final order after it has been signed, except to correct a clerical or Arithmetical error. Section 362 Cr.P.C. of the provision is quoted below.