THYLAYEE AMMAL Vs. SRIRANGAROYA GOUNDAN

JUDGEMENT

(1.) This revision petition is against an order of the Sub Divisional Magistrate of Erode dated 8- 12-1921. An objection has been taken by Mr. Govindaraghava Iyer the learned vakil for the respondents that I have no power to interfere. He relied on Komalkutty V/s. Udayavarma Raja Valia Raja of Chirakkal (1912) I.L.R. 36 Mad. 275 : 23 M.L.J. 499 (Ayling and Napier, JJ.) and Empror V/s. Sakkamat Ali (1919) I.L.R. 41 All. 302 (Knox, J.) A sentence in 36 Mad. 275 at p. 286 "Once he is so satisfied, his jurisdiction is complete and his subsequent action must be considered in relation to procedure, and not jurisdiction", quoted with approval and followed in Vellanki Srinivasa Jagannatha Rao V/s. Venkata Gopalakrishna Rao (Ayling, J.) produces the first impression that it decided that once the proceedings are properly started under Section 145, there can be no challenge of those proceedings before the High Court. But the words "must be considered in relation to procedure" do not support such a view of the case. They rather show that no point of jurisdiction can be made after the initial stage but only a question of serious irregularity in procedure. For, if no such power of interference exists, there is nothing to consider. The point argued in Kamalkutty V/s. Udayavarma Raja Valia Raja of Chirakkal (1912) I.L.R. 36 M. 275, 286 : 23 M.L.J. 499 Was only a question of jurisdiction and the observations in the judgment refer to the only contention raised before the learned Judges. In Vellanki Srinivasa Jagannatha Rao V/s. Venkatagopalakrishna Rao the irregularity complained of was that some of the evidence was taken by another Magistrate, to whom part of the enquiry was delegated and I must take it that, in the opinion of his Lordship (Ayling, J.) it was not such an irregularity as to justify an interference with the orders. In Criminal Revision Case No. 407 of 1920, Napier, J. who was the other learned Judge who took part in Kamalkutty V/s. Udayavarma Raja Valia Raja of Chirakkal (1912) I.L.R. 36 M. 275, 286 : 23 M.L.J. 499 said "It would have been better if he had referred to their evidence in his order but I cannot treat the absence of such a reference as a serious irregularity far less, a want of jurisdiction" - showing a serious irregularity may be a ground for interference. (Otherwise these words are unnecessary). I will show later on that, where serious irregularity is a ground for interference, the interference can be only under the (Charter Act) Government of India Act (S. 107) and not under Section 439 of the Criminal Procedure Code.

(2.) Anyhow Mr. Govindaraghava Aiyar had to concede in the course of the argument, with reference to other decisions to which I shall presently refer that there may be cases in which the High Court can interfere on account of serious irregularity in the proceedings of the Magistrate amounting to improper exercise of jurisdiction or improper refusal to exercise his jurisdiction. In Mahomed Koolayappa Rowthen V/s. Sheik Abdul Kadir Rowthen (to which Ayling, J. was a party) it was held that, where the finding of the Magistrate was that the parties had joint possession Section 145 does not apply and the order was set aside. I agree with this decision and the cases in Nritta Gopal Singh V/s. Chandi Charan Singh (1906) 10 C.W.N. 887 Makhan Lal Roy V/s. Barada Kanta Roy (1906) 11 C.W.N. 512 and 9 C.W.N. 887 Manik Chandra Chakravarthi V/s. Preo Nath Kuar (1912) 17 Cal. W.N. 205 on which it was founded See also Basanta Kumari Dasi V/s. Mahesh Chandra Laha (1913) I.L.R. 40 Cal. 982. I wish to point out that the High Court could not interfere in such a case if the sentence in Kamalkutty v. Udayavarma Raja Valia Raja of Chirakkal (1912) I.L.R. 36 Mad. 275 quoted above is understood as if it meant to lay down that the High Court can never interfere if it were satisfied that the proceedings started properly. In Taranjan Bibi V/s. Asmuddi Bepari (1900) 4 C.W.N. 426 Dharani Kant a Lahiry Chowdhury V/s. Girija Kanta Lahiry Chowdhury (1904) 8 C.E.N. 485 and Rada Raman Ghose V/s. Baliram Ram (1904) I.L.R. 32 Cal. 249 it was held that the possession of a partner or a trustee or an agent is the possession of all the partners, co- trustees or principal and Section 145 should not be used to protect such possession and orders under Section 145 were set aside. It is true that the first of these cases was dissented from in Narayana Asari V/s. Kandaswami Asari (1915) 3 L.W. 164 (29 I.C. 541) reversing the decision of Sadasiva Iyer, J. in Kandaswami Asari V/s. Narayana Asari (1914) 2 L.W. 107. But the dissent is on the merits as to the proper scope of Section 145 and the nature of the possession governed by it. All these cases are authorities for the proposition that when Section 145 is seemingly misapplied the High Court can interfere. If the correct view is that an agent's possession or sole partner's possession will not be protected under Section 145 (as these Calcutta cases hold) but the Magistrate issued an order under Section 145, the High Court will interfere to set aside the order. If the correct view is that such possession must be protected under Section 145 which is the view in Narayana Asari V/s. Kandaswamy Asary (1915) 3 L.W. 164 (29 I.C. 541) the High Court will interfere to set aside an order refusing to give such protection. The case in 3 L.W. 164 cannot be explained away on the ground that the Magistrate in that case gave the order, that it was a single Judge of the High Court (Sadasiva Aiyar, J.) that vacated it and the Judges who decided 3 L.W. 164 sitting in L.P.A. restored the Magistrate's order. I imagine that if the Magistrate himself refused to pass an order under Section 145 in that case the High Court would be equally empowered to interfere; for I do dot think anybody would contend for the absurd anamoly that the High Court can interfere in L.P.A. with a wrong order of a single Judge of this Court but not with a wrong order of the Magistrate. Such a view will involve the further anamoly that the High Court can interfere, where the Magistrate refused an order under Section 145 and a single Judge confirmed it; but the single Judge himself cannot set aside the order of the Magistrate even if he knew it to be wrong.

(3.) Now I come to other instances of interference. In Vaithinatha Aiyar V/s. Suppalu Ammal (1914) I.L.W. 929, (to which Ayling, J. was a party) it was held that there was no finding and the case was sent back. In Vein Malavarayan V/s. Kuppuswami Pillai (1920) 12 L.W. 315, Ayling and Coutts Trotter, JJ. interfered in a case where there were several items, on the ground that all the claimants of the various items were not made parties. I am clear, therfore that neither Ayling, J. nor Napier, J. meant what is sought to be attributed to the decision in Kamalkutty v. Udayavarma Raja Valia Raja of Chirakkal (1912) I.L.R. 36 Mad. 275. In Srimanavcdan Raja v. Parapravan Moidu (1919) 38 M.L.J. 73, no oral evidence was taken and the case was sen back by two Judges of this Court. In Marudanayagam Pillai V/s. Mahomed Rowthen (1916) 34 I.C. 329, Seshagiri Iyer, J. interfered on the ground that the Magistrate refused to take the evidence of witnesses tendered. He distinguished 36 Mad. 275. In Panaganti Parthasarthy Nayanna Garu V/s. Pallikappu Venkatasamy Reddy (1910) I.L.R. 34 Mad. 138, Miller, J. set aside the Magistrate's order on the ground that it dealt with the right to possession and not to the actual possession. In Kailash Behari Lal V/s. jai Narain Rat (1920) Pat. 288, (Supplement to C.W.N.) the whole oral evidence was not considered and the High Court interfered. In Atal v. Uma Charan (1915) 23 C.L.J. 555 : 20 C.W.N. 796 the High Court (Chitty and Walmsley, JJ.) interfered on the ground that a judgment debtor should not be protected under Section 145.