SATYA @ SATYANANDA MAHAKUR Vs. RAGHU MAHAKUR AND ORS

JUDGEMENT

(1.) A Petitioner under Section 145, Code of Criminal Procedure was filed by the Petitioner (first party) before the Executive Magistrate alleging breach of peace in respect of 5 decimals in plot No 555, 17 decimals in plot No. 97, 22 decimals in plot No. 101, 35 decimals in plot No. 464 and 20 decimals of land in plot No. 613 of M.S. khata No. 48 of village Papanga in Sambalpur district. The petition discloses that there are five members of the second party who are opposite parties in this case including Sankar Mahakur. In the preliminary order drawn up on 17-11-1984 the name of Sankar Mahakur does not appear. Copy of the preliminary order was served on all the members of the second party except Sankar Mahakur. The record of the case reveals that he did not enter appearance in the case obviously because he was neither served with a copy of the preliminary order nor any notice. In the impugned order, however, he has been shown as second party No. 5.

(2.) In this proceeding while the Petitioner claims possession in respect of the subject of dispute on the date of the preliminary order, opposite party No. 1 by filing his own written statement has claimed possession in respect of plot Nos. 101, 464 and 613. The case came up to the stage of hearing, but the first party did not produce his witnesses and so there was no full-fledged hearing of the case. On behalf of opposite party No. 1, the Executive Magistrate was pressed to take up the possession of the above mentioned three plots specifically claimed by him. So without recording any oral evidence, but on the basis of documentary evidence and arguments advanced before him, the Executive Magistrate by the impugned order declared possession of opposite party No. 1 in respect of those three plots and further directed that the case shall proceed in respect of the balance two plots. This order has been challenged in this Court mainly on the ground that there should not have been a piecemeal hearing of the proceeding under Section 145, Code of Criminal Procedure.

(3.) It is not known at what stage Sankar Mahakur was impleaded as a party: But since his name appears as a member of the second party in the impugned order, it is presumed that he is a party from the very inception although his name did not find place in the preliminary order and the notice. Manifestly he was not before the Court when the impugned order was passed, because there is nothing on record to show that copy of the preliminary order or any other notice was served on him or be entered appearance through counsel. So there is a technical defect to the effect that the impugned order was passed in the absence of one of the parties in the proceeding. If for any reason Sankar Mahakur appears at a later stage of the proceeding and claims possession in respect of these three plots and the Executive Magistrate is called upon to decide his claim vis-a-vis the claim of any other member of the second party or the first party, there is every likelihood of an inconsistent order which according to law should be avoided. That is why it is well said that a cause should be disposed of after due notice to all the parties so that there shall be no grievance of violation of the principle of natural justice or inconsistency of any order that the Court may pass. Without going into the merits of the claim of opposite party No. 1 or the Petitioner which has to be determined ultimately by the Executive Magistrate, I am bound to vacate the impugned order solely on the ground that it was passed in the absence of one of the parties to the proceeding. I would, however, observe that the Executive Magistrate shall be free to enquire as to at what stage the name of Sankar Mahakur was introduced in the petition under Section 145, Code of Criminal Procedure.