1. In this revision petition the Petitioners (II Party) in proceedings under Section 145 of the Code of Criminal Procedure in the Court below challenge the correctness of the order declaring that the Respondent ( I Party) was in possession. The learned Magistrate has dealt with the documents produced by either side in support of its case as also the affidavits of various persons filed on behalf of the parties. He has come to the conclusion that the affidavits and the documentary evidence indicate that the I Parly has been in possession of the site in question.
2. It is urged for the Petitioners that their documents show that they were in possession earlier, but the learned Magistrate holds that those documents arc not shown to pertain to the disputed site, while the documents filed on behalf of the I Party give the original khaneshmari number borne by the site and the subsequent number also. These are questions of fact and the view of the lower Court cannot be called in question in revision.
3. It is next urged that when the affidavits filed on behalf of the Second Party show that the persons whose affidavits are relied upon by the I Party were interested against the II Party as they had previously filed a suit against him the learned Magistrate should have allowed the examination of those persons as witnesses. Under Section 145 of the Code of Criminal Procedure as it stands now the Court is normally to act on the evidence produced in the form of affidavits and it is only when the Court thinks it fit that any person whose affidavit has been put in need he summoned and examined.
It is admitted that the II Party made no request to the learned Magistrate to call any of such persons as witnesses. The Magistrate acted entirely within his powers in confining his attention to the affidavits and the other documentary evidence produced in the case when he did not feel it necessary to summon any of the deponents for examination.
4. It is next contended that under Section 145 (4) of the Code of Criminal Procedure it is obligatory for the Magistrate to hear the parties and that hearing the parties means taking the evidence of the persons who figure as parties to the proceedings. It is no doubt true that the giving of a hearing includes allowing an opportunity to adduce evidence. But it has to be noticed that as the wording of Sub-section (4) stood prior to the amendment it provided that the Magistrate shall hear the parties and receive all such, evidence as may be produced by them.
The amended sub-section provides that the Magistrate shall peruse the statements, documents and affidavits, if any, hear the parties and conclude the inquiry. It will be noticed that the words 'receive all such evidence as may be produced' are not to be found in the amended sub-section. The object of the amendment is obviously to simplify the procedure by allowing evidence in the form of affidavits normally to take the place of the examination of witnesses.
It is with these factors in mind that the words 'hear the parties' which appear in the sub-section both as it stood prior to the amendment and as it stands now have to be interpreted. It seems to me that the hearing contemplated by the employment of those words is something other than the receiving of evidence such as hearing arguments. I see nothing in the language of Sub-section (4) as it stands now which precludes the parties themselves filing affidavits and which makes it obligatory that they should be examined in Court.
5. I thus see no substance in this revision petition and it is accordingly dismissed.
6. Petition dismissed.