CHINNAPAREDDIGARI SIDDA REDDI Vs. MALA DASARI ADIGADU

JUDGEMENT

(1.) THIS is a reference by the District Magistrate of Chittoor arising out of an order passed by the Joint Magistrate of Chandragiri in Miscellaneous Case No. 92 of 28 on his file under Section 145, Criminal P.C., declaring that the petitioner in that case was in possession of the property in dispute. The reference has been made on the ground that the counter-petitioners at the final hearing of the case were absent and that the learned Joint Magistrate passed the order in favour of the petitioner without recording any evidence at all upon the question of possession. A number of cases have been placed before me as bearing upon a question of this nature, but it is to be observed that most of them were decided before the recent amendment of Section 435, Criminal P.C. Sub- Section 3 of that section originally made orders under Secs.143 and 144 and proceedings under Chap. 12 and Section 176 not proceedings within the meaning of that section. The effect of that, as has been elaborately considered in Ramal Kutty v. Udayavarma Valia Raja [1912] 36 Mad. 275, was to preclude interference under the revisional provisions of the Code and to limit revision to cases giving rise to questions which might be brought under Section 15, Charter Act, that is to say questions of jurisdiction; it will be found that the learned Judges who decided Muthusivami Nadan V/s. Kolinga Mooppan [1917] 33 M.L.J. 78, and Vaithinatha Ayyar V/s. Suppalu Animal [1915] 1 M.L.W. 939, for instance, were careful to find that the jurisdiction of the trial Court was affected by the irregularity brought to notice. By the removal now of Sub-section 3, Section 435, proceedings under Chap. 12 of the Code become liable to revision in the same manner as other proceedings. A direct authority for revising an order passed in the present circumstances is to be found in Gobind Chandra V/s. Nibaran Chandra [1904] 8 C.W.N. 642. That case indeed was not quite so extreme as the present, because the party had put in a written statement which was taken into consideration- Other instances in which a Magistrate's order has been set aside for failure, either partial or complete, to take evidence are to be found in Ramkrista Patra V/s. Aghore Naskar [1902] 6 C.W.N. 925, and Nojan Mirdha V/s. Jamalali Khalifa [1908] 12 C.W.N. 771, and the case already mentioned of this Court, Vaithinatha Ayyar V/s. Suppalu Ammal [1915] 1 M.L.W. 939. It does not, however, I think, require any authority for the view that the Court is bound in the absence of one party to satisfy itself by examining the evidence tendered by the other that other party is entitled to an order. Under Section 145 (1) the Court has to pass an order requiring the parties concerned to put in written statements of their respective claims, and under sub-S- (4) the Court is directed to peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as it thinks necessary and if possible come to a decision. In the present case the Magistrate's procedure has been entirely at variance with these directions. In ray view, he had no jurisdiction to found an order upon the mere absence of the other party. But that question apart, I consider that the irregularity is material enough for the counter-petitioners to be entitled to have it set right. I accordingly set aside the order of the learned joint Magistrate and direct him to dispose of the case according to law.