SARDAR ARNARIK SINGH Vs. SARDAR BALDEO SINGH

JUDGEMENT

(1.) This revision arises out of an order passed dismissing an application under Section 132 of the Code of Criminal Procedure.

(2.) The applicant complainant and the non-applicant No. 1 reside in adjoining premises. The two premises are separated by a common wall. It is the allegation of the applicant that while erecting over the common wall as it originally existed, the non-applicant has raised another wall which is not perpendicular to the ground but is a bit slanting. He was asked to remove that wall being dangerous. The non-applicant did not accede to the request of the applicant. The wall is slanting and there is a constant danger of its falling down. It was, therefore, said that the wall may at any time collapse and may endanger the lives of the inhabitants. The application was initially allowed. The matter came to this Court in Criminal Revision No. 348 of 1982. By order dated 24/8/1982, passed in that revision, the matter was sent back to the Sub-Divisional Magistrate as it was found that the prescribed procedure was not followed inasmuch as the applicants witnesses were not first examined in the presence of the non-applicant. After the matter went back, two witnesses were examined but the non-applicant did not appear to cross-examine them. Spot was also inspected by the Magistrate. This time it was found that the wall stood firm for the last about seven years and that on observation it was found that the wall was properly erected. The learned Magistrate found that the wall was not likely to fall and, therefore, dismissed the application.

(3.) In this revision, the learned counsel for the applicant argued that admittedly the wall being not perpendicular to the ground is in the danger of collapsing any moment. He referred to the evidence adduced in support of this contention and strongly relied upon a decision of the Rajasthan High Court, in Achalch and v. Suraj Rai , As against this, it was submitted for the non- applicant that there was no immediate danger of the wall collapsing and that dispute being private no action under the section was called for. It was also submitted that in exercise of the revisional jurisdiction, the order could not be interfered with.