RAM LACHHAN SINGH Vs. TEJ NARAIN SINGH

JUDGEMENT

(1.) This application in revision by the petitioner arises out of an order passed by Shri A. Singh, Munsif Magistrate, First Class, Bhabhua, dated the 7th November, 1968, for quashing the same on the ground of illegality. Certain facts, which appear from the order -sheet of the court, may be briefly stated here. On the 1st May, 1968, the opposite party filed an application under Sec. 133 of the Code of Criminal Procedure before the Sub -divisional Officer, Bhabhua, on the allegation that the present petitioner and his father had erected a wall in the koli between their house and the house of the opposite party obstructing the opposite party thereby from going into and coming out of it. The further allegation was that in the land in front of the house of the parties, which ran east to west, the petitioner had thrown earth obstructing the flow of the water towards east. The Magistrate called for a report from the Mukhia to be submitted by the 18th May, 1968. The report was not received on that date, and the matter was taken up on various dates to await the report. The next order, which is relevant for the present purpose, is dated the 14th September, 1968. It appears that on this date the report was received, and the Magistrate ordered that a proceeding under Sec. 133 of the Code of Criminal Procedure be drawn up and the opposite party should be asked to remove the obstruction or to appear before Shri A. Singh, Magistrate, First Class, and take action for getting the order set aside or modified. On the 15th October, 1968, the matter was heard by Shri A. Singh, and it was discovered that no notice drawing up a proceeding under Sec. 133 of the Code of Criminal Procedure had been issued. The matter was then again taken up on the 7th November, 1968, which is the impugned order. On the date, a petition was filed on behalf of one of the opposite parties before the Magistrate that Bishwanath Singh, another member of the opposite party, was ill and that show cause could not be filed in his absence as the papers were with him, and, time was consequently asked for, which was refused. The order further shows that as the opposite party had neither removed the obstruction and the nuisance, nor had they shown cause or applied for the appointment of a jury, the order was made absolute against them. It is against this order that the petitioner has come up to this court.

(2.) Mr. R.K. Verma has urged that the learned Magistrate was in error in not complying with the mandatory provisions of Sec. 139A of the Code of Criminal Procedure, and, therefore, he says that the present order should be set aside. Learned counsel's submission is that after the notice under Sec. 133 of the Code was issued, the learned Magistrate should have taken steps for hearing the petitioner under Sec. 139A of the Code as to whether he denied the existence of any public right in respect of the matter which caused obstruction to the applicant. His further submission is that having refused to entertain the application for time, the Magistrate acted arbitrarily and without jurisdiction in passing the present order. There can be no doubt that the point is well founded and must be accepted as correct. It is undoubtedly the duty of the Magistrate to put question, enquire about the existence of any public right in respect of the subject -matter, to the person against whom the order under Sec. 133 of the Code has been made as has been pointed out by various decisions, see for instance: (1) Muni Lal Agarwala V. Public of Bhagalpur ( : A.I.R. 1941 Pat. 38). There is also a Bench decision of this court in the case of (2) Ramkripal Singh and another V. Superintendent. Way & Works, E.I.R. Gaya ( : A.I.R. 1945 Pat. 309). In this case, namely, in Ramkripal's case, their Lordships took the view that the evidence about the denial of the public right must be taken as a whole; but, if the statements of the witnesses on the point in themselves also contain a refutation of the claim made, then it was not necessary to take such evidence. In the instant case, the occasion did not arise, because the show cause had not been tiled and adjournment for filing the same was refused by the Magistrate. In this view of the matter, the order of the learned Magistrate dated the 7th November, 1968, cannot be sustained; and, it is, accordingly, set aside. The Magistrate is directed to rehear the proceedings from the state when the second party (petitioner) should have been asked under Sec. 139A of the Code of Criminal Procedure whether he denied the existence of the public right. It is needless to say that the learned Magistrate will keep in mind while dealing with the case the actual terms of the conditional order issued under Sec. 133 of the Code of Criminal Procedure. In the result, the application succeeds and the rule is made absolute.