NIRANJAN SINGH Vs. SMADH BAWA PREM DASS

JUDGEMENT

(1.) HEARD . Smadh Bawa Prem Dass under the management of Shri Sadhu Ram filed a petition under Section 133 Cr.P.C. before the Court of Sub Divisional Magistrate, Bathinda with a prayer that respondents Niranjan Singh and Boota Singh shall be restrained from constructing any tubewell in khasra No. 524/2 which is being used as a pahi and that with the installation of the tubewell a public path has been obstructed and blocked by Niranjan Singh and Boota Singh. The learned Sub Divisional Magistrate vide order dated 9.3.1994 dismissed that application on the ground by making the following observations :-

(2.) A perusal of the record of High Court would show that on 20.5.1997 Shri Ravinder Chopra gave the appearance on behalf of the petitioners while Sh. A.S. Kalra gave the appearance on behalf of the respondent and the case was adjourned to 14.7.1997 and was disposed of by Hon'ble Mr. Justice M.L. Koul in the presence of Shri Ravinder Chopra, Advocate. The order dated 14.7.1997 indicates that Shri A.S. Kalra, the learned counsel appearing on behalf of the respondent, was not present. The order dated 14.7.1997 further shows that a submission was raised by Shri Chopra before Justice Koul that civil proceedings are pending before the Civil Court over the same subject-matter in dispute and in these circumstances the filing of the application under Section 133 Cr.P.C. by the respondent was uncalled for and unjustified. This contention of Shri Chopra prevailed upon Hon'ble Mr. Justice M.L. Koul, who was pleased to allow the revision petition and set aside the order of the learned Addl. Sessions Judge and dismissed the application.

(3.) SO far as the legal proposition set forth by the learned counsel for the petitioner is concerned, there is no dispute, but the judgment relied upon by the learned counsel for the petitioners may not be strictly helpful to him. Firstly, the order dated 14.7.1997 has been passed by Hon'ble Mr. Justice M.L. Koul at the back of the respondent and no opportunity has been granted to the respondent to address arguments in spite of the fact that Shri Kalra gave appearance on 20.5.1997. It has also been pointed out by Shri Kalra that the cause-list prepared by the High Court on 14.7.1997 does not disclose his name. In this view of the matter the rights of the parties cannot be allowed to be defeated if there is some mistake on the part of the Court or the Registry. A litigant is not supposed to suffer for the lapse of the Court or the Registry, if any. Secondly if the order of Justice Koul has proceeded on factually incorrect premises, there is no harm to recall that order in order to impart justice to the parties. It is conceded that as on 14.7.1997 no civil suit was pending before the Civil Court entertaining the controversy in dispute. In these circumstances firstly I recall the order dated 14.7.1997 and decide to hear the parties forthwith on merits.