KAILASH NATH AGARWAL Vs. AMAR NATH AGARWAL

JUDGEMENT

(1.) THIS case arises out of proceedings under Section 145 of the Code of Criminal Procedure (hereinafter called the Code ).

(2.) THE Magistrate concerned made a reference to the Munsif, West Allahabad under Section 146 (1) of the Code to decide the question whether any and which of the parties was in possession of the subject of dispute on the material date. After the parties had appeared before the Civil Court, an application was made by Kailash Nath Agarwal praying that the first party and other persons, whose affidavits had been filed before the Magistrate under Section 145 (1) of the Code, be summoned for purposes of cross-exa-mination. This application was opposed and was dismissed by the learned Munsif holding that it was not within his power to call upon the persons concerned to attend the court for subjecting themselves to cross-examination. Against this order Kailash Nath Agrawal has filed the present revision under Section 115 of the Code of Civil Procedure. It has been submitted on his behalf that the learned Munsif has, upon an erroneous and misconceived view of the law and upon a misinterpretation, of Section 146 (1-A) of the Code, failed to exercise jurisdiction and power vested in the Civil Court by law. The question which falls for decision is whether the Civil Court, to which reference under Section 146 (1) of the Code has been made, has any jurisdiction or is legally competent to require the person or persons whose affidavits were filed before the Magistrate under Section 145 (1) of the Code to attend the Court for purposes of cross-examination.

(3.) THE learned counsel for the contesting opposite party supported the order of the Court below. He contended that the powers and duties of the Civil Court to which a reference is made under Section 146 (1) of the Code are entirely circumscribed by Sub-section (1-A) of that section itself. Section 146 (1-A), it was submitted, is exhaustive and provides a complete machinery for disposal of reference made to the Civil Court under Section 146 (1) of the Code. It was also submitted that outside Section 146 (1-A) of the Code the Civil Court has no other power. The argument, if I may say so, is based on a mechanical paraphrasing and dogmatically rigid interpretation of Section 146 (1-A) of the Code.