HAMENDRA NATH BISWAS Vs. MRINAL KANTI CHOUDHURY

JUDGEMENT

(1.) THIS application under Section 439 of the Code of Criminal Procedure by the second party in a proceeding under Section 145 of the Code of Criminal Procedure is directed against the order dated 27.8.1970 Passed by the Sub -Divisional Magistrate (Judicial), Kokrajhar. He passed the order declaring possession of "the first party, Mrinal Kanti Choudhury, Manager, Mornoi Tea Estate Mornoi, P. S. Gossaigaon, District Goalpara." The facts necessary for the purpose of disposal of this application may briefly be stated as follows : -

(2.) THE first Party filed an application under Sections 144 and 107 of the Code of Criminal Procedure against the second party on 19.5.1969 before the District Magistrate (E), Dhubri. The learned Magistrate sent the application to the Officer -in -charge, Gossaigaon Police Station, to take necessary action. Ultimately, however on police report, the application was treated as one under Section 145 of the Code of Criminal Procedure and proceedings were drawn by the Magistrate on 6th August, 1969. Both the parties filed written statements and documents. The learned Magistrate declared the first party to be in possession of the property. The second party then moved the Sessions Judge for a reference but without success. Hence this application.

(3.) COUNSEL for both the parties were heard and they concluded their arguments on 28.11.1972 and learned counsel for the petitioners also partly made his submissions in reply when the Court rose for the day. The case was called for further hearing of the reply of learned counsel for the petitioners on the next day, when learned counsel for the opposite party sought to submit that the application under Section 439 was barred by limitation. He submitted that the impugned order of the Magistrate was passed on 27th August, 1970 and the revision application was filed on 3rd February, 1971. The limitation prescribed under Article 131 of the Limitation Act is 90 days and the time for obtaining the copy was only two days. He submitted that as the petitioners were not entitled to get the benefit of the period taken by the Sessions Judge in disposing of the motion the application was clearly barred by limitation. Though the point is of importance, I leave it to be decided in an appropriate case; it cannot be entertained at this stage of hearing of this application without causing serious prejudice to the petitioners.