DAITARI SWAIN Vs. SUDHIR KUMAR MOHAPATRA

JUDGEMENT

(1.) THE first party, Sudhir Kumar Mohapatra (opposite party in this revision), filed a petition before the City Magistrate on 29 -8 -1970 alleging that he was running a sweet -meat shop on a piece of railway land measuring 215 square feet in Station Bazar, Cuttack and that the second party, Daitari Swain {Petitioner in this revision with the help of hooligans, was out to evict him forcibly from the said sweet -meat shop and trying to occupy the same. As there was likelihood of serious clash and imminent breach of peace, the first party prayed for passing an ex parte order under Section 141(2), Code of Criminal Procedure restraining the second party from entering upon the disputed land. The learned Magistrate, after being satisfied, passed an ex parte order under Section 144(2), Code of Criminal Procedure restraining the second party from entering upon the disputed land and directed the second party to appear in his Court on 14 -9 -1970 and to show cause as to why the above order should not be made absolute against him. The second party appeared on 14 -9 -1970 and raised the question of maintainability of the aforesaid order. On 17 -9 -1910 the learned Magistrate after hearing both parties converted the proceeding to one under Section 145, Code of Criminal Procedure and attached the disputed land and asked the parties to file their written statements, affidavits and documents by the next date. The relevant portion of the order is quoted below:

(2.) THE case of the first party is that the disputed land belongs to the South Eastern Railway. The second party wanted to take lease of the same and being in need of money approached the first party to finance him to which the first party agreed. On 30 -9 -1969 there was an agreement between the parties that the first party would pay to the second party the security deposit and other charges, rent at the rate of Rs. 30/ - per month for use and occupation of the land and shall make construction at his cost and carryon business on the said house and the second party shall not evict him from the land. Accordingly, the first party advanced money to the second party, paid rent at the rate of Rs. 301 - per month for a year in advance, constructed house on the disputed land, run his sweet -meat shop and remained in peaceful possession Without any disturbance. His further case is that he closed his shop for the Orissa Bund Hartal on 27 -7 -1970 and went to his village and taking advantage of his absence the second party forcibly and wrongfully entered into his shop. So he was compelled to file a Petition before the City Magistrate on 5 -8 -1970 which was sent to G.R.P.S. for enquiry and report. As the police delayed the matter, he filed a petition under Section 144, Code of Criminal Procedure which was subsequently converted into a proceeding under Section 145, Code of Criminal Procedure as aforesaid.

(3.) IN this revision the following points have been raised by the learned Counsel appearing on behalf of the second party Petitioner.