APURBA KUMAR BHOWMIK Vs. HUSSAIN BI AND ORS.

JUDGEMENT

(1.) PETITIONER was the first party and the opposite parties were members of the second party in Criminal Misc. Case No. 12 of 1978, a proceeding under Section 145, Code of Criminal Procedure. The proceeding was initiated on 24 -1 -1978 on the basis of a report submitted by the police. The dispute relates to "Imperial Talkies", a cinema house at Jharsuguda. According to the Petitioner, the premises on which the cinema house stands were initially leased out to one Abdul Sukur on 8 -2 -1953 for the purpose of running the cinema. Sukur left the premises after one year. By virtue of an agreement dated 24 -12 -1957 S.K. Babu, the power -of -attorney holder of opposite party No. 1, took on lease the premises and ran the cinema till 1963. The cinema licence stood in the name of opposite party No. 1. On 15 -1 -1965 of opposite party No. 1 sublet the premises to the Petitioner on a monthly rent on Rs. 551/ -. The cinema hall had been demolished during communal riots in 1964 and the Petitioner had reconstructed the same. In June, 1965 S.K. Babu surrendered his rights in favour of R.K. Bajaj, the owner of the premises. Thereafter the Petitioner took on lease the premises from R.K. Bajaj on a monthly rent of Rs. 101/ -. As the cinema licence stood in the name of opposite party No. 1, the Petitioner continued to pay to her the monthly rent of Rs. 551/ -. The Petitioner claims to have been in continuous possession of the cinema hall since 1965 and his further case is that on 25 -11 -1977 he purchased the land on which the cinema hall stands from the owner by a registered deed of sale. The cafe of the opposite parties is that the late husband of opposite party No. 1 had acquired the cinema hall together with all the machineries from one Abdul Sukur and one Md. Hussain by two unregistered documents dated 7 -7 -1956 and 10 -7 -1956 respectively and since then he became the rightful owner of the cinema house. The land on which the cinema house stands belongs to Ramkumar Agarwalla who had let out the same to the said Abdul Sukur and Md. Hussain. Abdul Sukur had constructed the cinema building. After the death of the husband of opposite party No. 1, the opposite parties took over possession of the cinema hall and ran the cinema through S.K. Babu who was their power -of -attorney holder. The cinema licence was granted to opposite party No. 1. Ramkumar Agarwalla executed a lease -deed on 24 -12 -1957 in favour of S.K. Babu in respect of the premises of the cinema house on a monthly rent of Rs. 51/ - and the said lease is continuing. On 15 -1 -1965 S.K. Babu leased out the cinema hall to the Petitioner for a period of five years on a monthly rent of Rs. 551/ -. The Petitioner continued as the lessee of the cinema hall and the machineries, etc. till the end of September, 1977. The opposite parties terminated the Petitioner's tenancy in October, 1977 and they are running the cinema since then. The other allegations of the Petitioner and his present possession have also been denied by the opposite parties. By his order dated 30 -9 -1978 the learned Executive Magistrate declared possession in favour of the opposite parties and hence this revision.

(2.) LEARNED Counsel for the Petitioner has urged that the order declaring possession in favour of the opposite parties should be set aside as in the proceeding before the learned Magistrate the Petitioner had been illegally denied the opportunity of adducing oral and documentary evidence in import of his case and of cross -examining the witnesses of the opposite parties resulting in serious miscarriage of justice. On going through the order sheet I find that on 27 -7 -1978 one witness for the Petitioner was examined, cross -examined and discharged and the case was posted to 8 -8 -1978 for further evidence of the Petitioner. On 8 -8 -1978 both parties were present. The opposite parties filed a petition for "Imposition of under Section 114, Code of Criminal Procedure on F.P. (sic)" and this petition was directed to be put up on 31 -8 -1978. Thus, 31 -8 -1978 was the date fixed for consideration of the Petitioner under Section 144, Code of Criminal Procedure filed by the opposite parties, not for evidence. On 31 -8 -1978 the leased Magistrate was on tour and the case was directed to be put up on 11 -9 -1978. On 11 -9 -1978 the learned Magistrate was again on tour and it was noted in the order sheet that the case was posted to 18 -9 -1978. This order dated 11 -9 -1978 has not been signed and there is an endorsement dated 18 -9 -1978 on the margin that the learned Magistrate was on law and order duty on 11 -9 -1978. On 18 -9 -1978 the learned Magistrate took up the case and passed the following order:

(3.) FOR the reasons stated above, the order of the learned Magistrate (dated 18 -9 -1978) closing the evidence of the Petitioner and the final order passed on 30 -9 -1978 must be and are hereby set aside. This revision is allowed and the case is remitted to the learned Magistrate for disposal according to law subject to the following directions: