LAKHAN SINGH Vs. KISHUN SINGH

JUDGEMENT

(1.) Petitioner Lakhan Singh was the second party and Kishun Singh and others were members of the first party in a proceeding under Section 145 of the Code of Criminal Procedure, which ended in favour of the first party. While declaring the possession of the members of the first party, the learned Magistrate further ordered as follows:--

(2.) Mr. Jagdish Pandey, learned Counsel for the petitioner, has raised four points before this court. His first contention is that no notice was given to his client by the learned Magistrate while deciding the question of awarding costs. His main argument is that the second party should have been given an opportunity to raise his objection to the various items of costs claimed by the first party in their petition. It appears that in the petition of the first party dated the 17th February. 1969, the amount paid as Advocates' and Advocates clerks' fees and for feeding the witnesses who filed affidavits has been mentioned in detail. This amount comes to Rs. 586/-. The amount of loss was shown as Rs. 475/. The learned Magistrate it appears has not accepted the figure given by the first party in toto. He has allowed a sum of Rs. 500/- only. Section 148 (3) of the Code of Criminal Procedure does not lay down that, before passing an order under that sub-section, a notice has to be served on the other side. The principles of natural justice, however, require that a party should be heard before any adverse order is passed against it. It has, however, been held in some cases that an ex parte order, if it is passed after considering the application on merits, is not invalid. It has been further held that where the trial court passed an order without hearing the parties and the appellate Judge, on an application by one of the parties against that order, gave that party a full hearing and confirmed the lower Court's order, the party cannot claim that it had no opportunity of being heard (vide Kapoor Chand v. Stiraj Frasad, AIR 1933 All 264 (FB)). In the instant case, of course, the learned Magistrate did not hear the petitioner before passing the order for costs. But it appears that he has applied his mind to the facts of the case and taken into consideration as to what should be the reasonable amount to be awarded to the first party. He has not accepted the claim of the first party in toto, but has considerably reduced it.

(3.) I have heard learned Counsel for the petitioner at great length on this point and I am going to apply my own judgment on the facts of this case just with a view to find out as to what would be the reasonable amount of costs which may be ordered to be paid by the petitioner. So, whatever points the learned Advocate for the petitioner could have raised before the learned Magistrate have been raised before me by the learned Counsel appearing for the petitioner and, therefore, the petitioner second party should have now no grievance on this score. A similar procedure was adopted by a Division Bench of this Court in the case of Sarju Prasad Sao v. Ram Chandra Singh, AIR 1959 Pat 151. There, the learned Magistrate had awarded cost of more than Rs. 1500/- and odd. Their Lordships, on examining the records and finding that there was hearing in the case for 12 days, awarded a cost at the rate of Rs. 20/- for each day of the hearing.