SADHU DAS AND ANR. Vs. KALUNI BEWA

JUDGEMENT

(1.) THE Petitioners were the members of the second party and the opposite party was the sale first party member in Criminal Miscellaneous Case No. 366 of 1980 in the Court of the Executive Magistrate, Jagatsinghpur, under Section 145 of the Code of Criminal Procedure (for short, the Code). The first party had filed her written statement and the second party took some adjournments for filing written statement and the matter -stood posted to 15 -6 -1981. That was a holiday and the case was called on the next day. The Petitioners were found to be absent on calls and the learned Executive Magistrate recorded the evidence of two witnesses for the opposite party and passed an order in her favour under Section 14(6) of the Code. The Petitioners made an application for vacating that order on the ground of illness at Sadhu Das, one of the members of the second party. The learned Executive Magistrate, on a consideration of this application and taking into consideration the facts that the date fixed was a holiday and it was for filing of the written statement and not for hearing and that on the day following, the matter had been taken up for hearing ex parte and the illness of one of the members of the second any which had not been controverted by the other side, vacated the order passed on 16 -6 -1981 declaring the opposite party to be in possession of the land in dispute and directed both the parties to file the written statement and to come prepared for evidence posting the case to 17 -10 -1981. The opposite party came up in revision and the learned Sessions Judge, Cuttack, set aside the order passed by the learned Magistrate reviving the case and vacating his previous ex parte order on the ground that the learned Magistrate could not legally set at naught his previous order as it was in contravention of the provisions of Section 366 of the Code. It is this order of the learned Sessions Judge which is assailed in this revision.

(2.) AT the stage of hearing, Mr. Devananda Misra, the learned Counsel for the Petitioners, has submitted that the view taken by the learned Sessions Judge cannot be said to be wrong. He has, however, made an application under Section 482 of the Code and has submitted that in order to prevent an abuse of the process of the court, the order passed by the learned Magistrate on 16 -6 -1981 should be set aside by this Court and an opportunity, should be afforded to the Petitioners, against whom an ex -parte order had been passed for no fault of theirs especially when they had been able to satisfy the learned Magistrate that for circumstances beyond their control they could not take steps on 16 -6 -1981. A rejoinder has been filed and Mr. A.K. Mohapatra has seriously objected to this application being allowed.

(3.) IN the instant case, the fact remains that the learned Executive Magistrate had been satisfied about the ground of absence of the Petitioners in his court on 16 -6 -1981 on which day the case was taken up ex parte although it had been fixed on the previous day which was a holiday. I notice from the record of the learned Magistrate that on 5 -5 -1981, the proceeding stood posted to 26 -5 -1981 for filing of the written statement by the Petitioners on an application made by them. On 26 -5 -1981, the learned Magistrate had passed the following order: