SARJU MAHTO Vs. BANSRAJ MAHTO

JUDGEMENT

(1.) This application in revision is directed against order dated 14-1-1984 passed by Shri Ram Tiwari, Executive Magistrate, Deoghar in a proceeding under Section 144 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') declaring the possession of the second party who is opposite party before this Court over the disputed land. The petitioners who were the first party, have come up in revision against the said order.

(2.) On a petition filed by the opposite party, the Sub-Divisional Magistrate, Deoghar drew up a proceeding under Section 145 of he Code on 27-2-1976 in respect of 7.03 acres of land under Jamabandi No. 1 at village Baghmara, P. S. Madhepur and District Santhal Parganas and directed the parties to put in written statements of their respective claims as respects the fact of actual possession over the disputed land.

(3.) The aforesaid proceeding was transferred by the Sub-Divisional Magistrate, Deoghar to the court of the Executive Magistrate for disposal. Parties filed their written statements and adduced oral and documentary evidence in support of their claim of possession. After the evidence on behalf of the first party, the second party adduced evidence which was concluded on 26-7-1983 and thereafter the proceeding was adjourned to 12-8-1983 for argument on behalf of the second party. However, the argument on behalf of the second party could be concluded on 29-11-1983. In between 12-8-1983 and 29-11-1983 the case was adjourned on 10 dates. On 12-8-1983, 12-9-1983, 25-10-1983 and 29-10-1983, the case was adjourned on the prayer of the second party, it appears from the order-sheet that on 29-8-1983, 5-10-1983, 3-11-1983, 22-11-1983 and 28-11-1983 the case was adjourned on joint prayer for time by the parties. On 5-11-1983 the argument on behalf of the 2nd party was heard in part and the case was adjourned to 14-11-1983 for further argument on behalf of the 2nd party. It does not appear from the order sheet dated 14-11-1983 as to why the hearing of the argument was adjourned to 22-11-1983 on that day. However, the part heard arguments on behalf of the second party could not be taken up on 22-11-1983 and 28-11-1983 and ultimately it could be concluded on 29-11-1983 and the case was adjourned to 6-12-1983 for argument on behalf of the first party. Thereafter the case was adjourned to 6-12-1983, 15-12-1983, 26-12-1983, 4-1-1984 and 9-1-1 84 either because of the Presiding Officers absence from the head-quarters or because of his pre-occupation with other works. On all these dates, parties filed their Hazari and no prayer for time was made on behalf of the first party. On 9-1-1984, the case was adjourned to 13-1-1984. It appears that on 13-1-1984, the Junior of the learned Advocate appearing on behalf of the first party made a prayer for adjournment on the ground that the learned Advocate was not present for argument. The learned Executive Magistrate on that date did not accept the prayer made on behalf of the first party and though he did not record that the prayer on behalf of the first party was being rejected, he fixed 14-1-1984 for orders in the case mentioning that if the first party has got any objection for not being heard, he may proceed against the order to the learned Sessions Judge Deoghar. The ordedrated 13-1-1984 is as follows : <IMG>JUDGEMENT_616_BLJ_1987Image1.jpg</IMG> It has been submitted by the learned counsel for the petitioner that on 13-1-1984 Hazaries had been filed on behalf of both the parties to the proceeding and when the case was not taken up till 4 p. m. the senior counsel for the petitioner left for his home under the bonafide belief that the case would not be taken up on that date and his junior went to the court room at about 4.30 p. m. for ascertaining the next date fixed in the case, but suddenly the case was called and thereupon the junior lawyer expressed his inability in the absence of his senior and prayed for adjournment but the court went back to Chamber without fixing any date. It is further submitted by the learned counsel appearing on behalf of the petitioner that on 14-1-1984 an application was filed on behalf of the petitioner for transfer of the case but in spite of that petition, the learned Magistrate passed the impugned order. These facts have been stated in the petition also on affidavit. There is no counter affidavits on behalf of the opposite party controverting these facts. Sub-section (4) of Section 145 of the Code reads as follows :