PRAKASA REDDI Vs. JONNALA PITCHAREDDI

JUDGEMENT

(1.) This is an off-shoot of an order passed by Mr. Justice Somasundaram of the Madras High court on 5-5-1954 in Criminal Revision Case No. 44 of 1953. In order to appreciate the respective contentions of the parties, it is useful to trace the background of this litigation.The first respondent purcahsed properties including those invoked in this Revisiion case under three registered sale deeds of the year 1952, and obtained possession thereof from the vendors. In November 1952, he moved the Additional Sub Magistrate. Guntur, under S. 144, Criminal P. C., for an order preventing the petitioners herein from trespassing on his lands with allegations that while he was alway at Madras the present petitioners trespassed on his land on 9-11-1952, and cut away the crops on a portion of the land and that they were attempting to remove the crops on the remaining portion of the land and prevent him from harvesting the crops belonging to him.On 20-4-1954, orders were passed under S. 144(1) restraining the present petitioners from interefering with the possession of the land of the first respondent, Meanwhile, proceedings under S. 145, Criminal P. c. was initiated before the Additional First Class Magistrate, Guntur, who passed a preliminary order in December 1952. It may be stated that the order under S. 144 (1) was vacated. After hearing the parties and receiving the evidence adduced by them and considering the effect of the evidence, the Magistrate passed an order declaring the possession of the first respondent herein, but in the last paragraph of the order, the learned Magistrate observed as follows:

(2.) When the matter went back to the Magistrate, it was contended on behalf of the present petitioners that thelearned Judge ordered a denovo enquiry and therefore the Magistrate should begin the inquiry under S. 145, Criminal P. C., afresh. On the other hand, it is urged on behlaf of the present 1st respondent that the direction of the learned Judge was only to re-hear the arguments and to re-write the judgment. This argument advanced on behalf of the 1st respondent found favour with the Magistrate who expressed the opinion that the order of Justice Somasundaram meant only re-hearing of arguments on the evidence already on recrod and therewas no necessity to allow the parties to adduce evidence afresh. It is this order of the Magistrate that is underrevision. The same contentions as in the lower Court are repeated before me in this Revision Petition.

(3.) The first question, therefore, that arises for consideration is as to the powers of the High Court in exercise of its jurisdiction under s. 439 to order a rehearing or a further enquiry. While it is contended by Mr. Basi Reddy, the learned Counsel for the petitioner, that the powers of the High Court in regard to re-hearing or an enquiry aresh are unfeittered, the position taken by Raghavayya, counsel for the 1st respondent is that the High court hasno power at all to remit the matter to the lower Court for any purpose and if any such power existed it could only be to direct a re-hearing of the arguments based on the evidence already recorded and to re-write the order. I will now proceed to consider which of the two views is correct.(