M.S. Nesargi, J.
1. This petition is directed against the order dated 23-2-1970 styled as 'Cancellation of the preliminary order Under Section 145, Criminal P.C. passed by the Sub-Divisional Magistrate, Pandavpura. in Case No. C. Misc. 5/68-69.
2. The few facts that are necessary for a decision in this case may be narrated in brief as follows:
In regard to a property situated at Kennal village, Pandavapura Taluk, the learned Sub-Divisional Magistrate, on information received by him, as per Section 145 (1) of the Criminal P.C. issued a preliminary order on 20-9-1968. The petitioner was the I Party and the respondent was the II Party before him. They appeared before the Sub-Divisional Magistrate, in response to the preliminary order and filed their written statements. In due course both the parties produced their documentary evidence and the evidence of witnesses in form of affidavits. Final hearing of the matter Under Section 145 (4) of the Criminal P.C. was fixed by the learned Sub-Divisional Magistrate, on 16-2-1970.
3. It is contended on behalf of the petitioner that on 16-2-1970 the learned Sub-Divisional Magistrate was not present in the headquarters and as such the office adjourned all the cases including the present one, to 16-3-1970 and on learning that date of hearing, the petitioner went away, and that on 23-2-1970 when the counsel for the petitioner (in the lower court) had gone to the Office of the Sub-Divisional Magistrate on some other work, he was informed that the impugned order had been passed on that date by the learned Sub-Divisional Magistrate. It is further contended on behalf of the petitioner that the order in question is one passed against the principles of natural justice and that it is on the face of it unsustainable in law as it does not fall within the provisions of either Section 145 (4) of the Criminal P.C. or Section 145 (5) of the Criminal P.C.
4. The undisputed facts are that both the parties had appeared before the Sub-Divisional Magistrate and produced their written statements and documentary and oral evidence prior to 16-2-1970 and on 16-2-1970 the case had been posted for final hearing. The order-sheet maintained by the learned Sub-Divisional Magistrate goes to show that the case had been last called on 3-1-1970 and adjourned to 16-2-1970. The further date that appears in the order-sheet is not as 16-2-1970 but as 23-2-1970. This goes to show that the case was either not at all called out on 16-2-1970, or if so called out, it is not recorded as to what happened on 16-2-1970. As per the contents of the order-sheet, it appears reasonable to hold that the case was not at all called out on 16-2-1970 and was suddenly called out on 23-2-1970.
There is nothing available in the records received from the Sub-Divisional Magistrate in this case, to show that intimation of having posted the case to 23-2-1970 from 16-2-1970 had been issued to the parties. It is hence clear that the learned Sub-Divisional Magistrate proceeded to pass the impugned order in the absence of the parties on 23-2-1970 and without intimation to them and without hearing them. It was expected of him to hear the case on its merits on the date fixed for final hearing which was 16-2-1970 or on a properly and legally adjourned date thereafter, but he has failed to do so. This is one of the reasons why the order is to be held as bad in law.
5. By the impugned order, the learned Sub-Divisional Magistrate has at the same time, cancelled the preliminary order passed by him and held that the respondent, who was the II Party before him, was in possession of the property in question, and has directed that the Tahsildar, who was appointed as receiver to manage the scheduled property, should hand over possession of the said property to Respondent 1. The finding of the learned Sub-Divisional Magistrate in favour of respondent 1 that he was in possession of the property, would fall only under the provisions of Section 145 (4) of the Criminal P.C.
Cancellation of a preliminary order can be done by a Sub-Divisional Magistrate as per the provisions found in Section 145 (5) of the Criminal P.C. If cancellation of the preliminary order is made, the Magistrate will be required to stay all further proceedings. That is how it is laid down in Section 145 (5) of the Criminal P.C. That goes to show that whenever a Sub-Divisional Magistrate chooses to cancel a preliminary order by exercising powers vested in him under Sub-section (5) of the Section 145 of the Criminal P.C., such Sub-Divisional Magistrate, cannot at the same time proceed to give a finding as to which of the parties was, according to him, in possession of the property.
The powers vested in a Magistrate under Sub-section (4) of Section 145 of the Criminal P.C. do not at all empower him to cancel a preliminary order. It is hence clear that the impugned order is not at all sustainable either according to Section 145 (4) or according to Section 145 (5) of the Criminal P.C. Moreover, the ground for cancellation of a preliminary order as laid down in Sub-section (5) of Section 145 of the Criminal P.C., is a Sub-Divisional Magistrate finding that no such dispute in regard to the scheduled immovable property as laid down in Section 145 (1) of the Criminal P.C., exists at the time of passing the order Under Section 145 (5) or had existed at the time of passing the preliminary order Under Section 145 (1) of the Criminal P.C. Sub-section (5) of Section 145 of the Criminal P.C. does not warrant cancellation of a preliminary order on any other ground and for any other reasons.
In view of these provisions, it is seen that the order passed by the learned Sub-Divisional Magistrate cannot at all be held to be sustainable in law.
6. In view of the foregoing reasons, this petition is allowed and the order passed by the Sub-Divisional Magistrate. Pandavapura, on 23-2-1970 in Case No. C. Misc. 5/1968-69, is set aside.