KHOBHARI RAI Vs. RAM LAKHAN RAI

JUDGEMENT

(1.) In this criminal revision originally Khobhari Rai was the petitioner, who was the first party to a proceeding under Section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Code'). The said proceeding was decided in favour of the members of the opposite party who were declared to be in actual physical possession of the lands in dispute, by order, dated the 23rd August, 1968, passed by Shree R.N. Maharaj, Magistrate, First Class, Barh.

(2.) It appears that, on the 24th October, 1968, the members of the opposite party filed an application before Shree R.N. Maharaj for an order for costs in respect of the proceeding in question in accordance with the provisions of Section 148(3) of the Code. The said Shree R.N. Maharaj passed an order on the 19th May, 1969, saying In this case the petitioner has been found in possession of the disputed land. As such, he was naturally entitled for the claim of the legal and reasonable cost. The case was, however, transferred to Shree B.N. Sinha, Magistrate, First Class, who was successor-in-office of Shri R.N. Maharaj. The said Shri B.N. Sinha, on the 14th November, 1970, after hearing the parties, passed an order directing the aforesaid Khobhari Rai to pay a sum of Rs. 970.00 as costs to the members of the opposite party. The revision application was filed by the said Khobhari Rai. But, during the pendency of the application in this Court, Khobhari Rai died and his heirs have been substituted who are now the petitioners in this Court.

(3.) The petitioners have challenged the legality of the said order. It has been submitted on behalf of the petitioners that, there being no order for costs in the order declaring the members of the opposite party to be in possession of the lands in dispute, the learned Magistrate could not have entertained the application filed later. In that connection it has also been submitted that no party to such a proceeding is entitled to costs as a matter of right and it is in the discretion of the Court concerned which discretion should be exercised on well known judicial principles.