Skip to content


B. Madan Mohan Lal Vs. Mt. Sheoraj Kunwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All446
AppellantB. Madan Mohan Lal
RespondentMt. Sheoraj Kunwar
Excerpt:
.....present case has been referred by the learned sessions judge to this court because no order was passed by the magistrate strictly conforming to the terms of section 145(1). the learned judge has considered that he has been directed by certain decisions of this court to hold that where an order has not been passed precisely in the terms of section 145(1) the magistrate had no 'jurisdiction 'to proceed. 2. in some cases it has been suggested that the question of venue is also a determining factor of jurisdiction, but the better opinion is to the contrary. but it appears to me that it would be quite unjustifiable and unreasonable to set aside lengthy proceedings under section 145, when the facts indicate that the parties could not conceivably have been prejudiced by the absence of a..........the present case there can be no question whatever that the magistrate had power to deal with the matter in question and with the persons in question, and he had therefore jurisdiction in the case.4. this however does not conclude the matter. i note that in the case referred to me, the word 'jurisdiction' was only as it were casually used and it may be that the learned judges really meant no more than that the provisions of section 145(1) are mandatory or in other words that prejudice must be assumed. i am not prepared to go so far as that. it appears to me that if an order has not been formally drawn up exactly in the terms of section 145(1) there may or may not be according to the circumstances of the case great prejudice to the parties. but it appears to me that it would be quite.....
Judgment:
ORDER

Boys, J.

1. In my view there should be absolutely no difficulty in administering the provisions of Section 145 nor in dealing on the revisional side of this High Court with any orders that may have been passed under Ch. 12. The difficulty only arises in the Courts of Magistrates because possibly owing to pressure of work they do not read Section 145 carefully. In the present case though I propose to pass an order under Section 145, I shall have to vary the order passed by the Magistrate, because he did not read the section and pass his order in accordance with its terms. On the other hand in my opinion difficulty has been created even in this Court, if I may say so with respect to other learned Judges, by a failure to appreciate the difference between jurisdiction to entertain a matter and the power to pass particular orders in that matter. I may illustrate this immediately. The present case has been referred by the learned Sessions Judge to this Court because no order was passed by the Magistrate strictly conforming to the terms of Section 145(1). The learned Judge has considered that he has been directed by certain decisions of this Court to hold that where an order has not been passed precisely in the terms of Section 145(1) the Magistrate had no ' jurisdiction ' to proceed. I have been referred to the cases of Dan Prasad v. Ganesh [1913] 14 Cr.L.J. 495, Nathu Ram v. Emperor [1917] 18 Cr.L.J. 557 and Banlce Singh v. Gokul : AIR1927All286 . In the first two of those cases the word ' jurisdiction ' was specifically used. In the third case the word ' jurisdiction ' was not used. In my view the omission to draw up an order under Section 145(1) has nothing whatever to do with the question of 'jurisdiction' at all. I had the occasion in another place to make a careful study of the scope of this word, and I come to the conclusion and I have had no reason to depart from that conclusion that the characteristics of a Court of competent jurisdiction were : (a) power conferred to deal with offences or matters of the class in question, (b) power conferred to deal with the offenders or persons of the class in question.

2. In some cases it has been suggested that the question of venue is also a determining factor of jurisdiction, but the better opinion is to the contrary. That question does not arise at any rate in the present case.

3. In the present case there can be no question whatever that the Magistrate had power to deal with the matter in question and with the persons in question, and he had therefore jurisdiction in the case.

4. This however does not conclude the matter. I note that in the case referred to me, the word 'jurisdiction' was only as it were casually used and it may be that the learned Judges really meant no more than that the provisions of Section 145(1) are mandatory or in other words that prejudice must be assumed. I am not prepared to go so far as that. It appears to me that if an order has not been formally drawn up exactly in the terms of Section 145(1) there may or may not be according to the circumstances of the case great prejudice to the parties. But it appears to me that it would be quite unjustifiable and unreasonable to set aside lengthy proceedings under Section 145, when the facts indicate that the parties could not conceivably have been prejudiced by the absence of a formal order, where it is manifest that they knew well all the facts and contested the matter with the advantage of the knowledge of the whole of the facts. Now to deal with the first objection in the present case, it appears that disputes have arisen between the wife on one side and her husband and her two sons on the other. There was a house which was purchased in the name of the wife and which was registered in the Municipality in the name of the wife. On 18th March 1931, the wife filed a complaint against her husband and sons saying that she had been turned out of the house, property misappropriated, and that she herself had been beaten and she asked for an order for maintenance against her husband. The application was clearly a complaint within the terms of Section 4(1)(h), Criminal P.C. The lady clearly wanted action to be taken in regard to the offences committed against her though no section of the Penal Code was specified and she clearly wanted action under Section 488, Criminal P.C. The Magistrate on 23rd March 1931 referred the matter to the police and they reported on 29th March 1931. I have not the report before me nor is it necessary. It is manifest that the Magistrate had information that there was likely to be a breach of the peace in regard to this house and thought it desirable to take proceedings under Section 145, Criminal P.C. It is here that it would have been well for him to look again at the section. No Judge of this Court has any hesitation in refreshing his memory from the law, and it would save in the end a great deal of the time of the Magistracy if they would glance at a section before passing an order under it.

5. The only order passed by the Magistrate was to direct the issue of a notice fixing a date for the parties to file their written statements and documents and the parties did proceed to file their written statements and to lead a lot of evidence and there is not a hint that either of them did not know what the trouble was about nor is there a hint of any request by them for further information as to what charges they were to answer to nor is there a hint when they pleaded that there was no likelihood of a breach of the peace. In other words they fought the whole matter out knowing perfectly well what they were asked to meet. I am of opinion that Section 145(1) is not mandatory at all, except in this sense that the Court will get aside an order passed under the latter clauses of Section 145 if there is any reason to believe that the omission of an order or the passing of an order not strictly in the terms of Section 145(1) led to some prejudice to one or other of the parties. Still less is there any question of jurisdiction in the matter. I would therefore decline to accept the reference on this ground and it is the only ground which has been the basis of the reference, and the only ground which has been urged before me by the counsel for the husband in whose interests the reference was made upon his application in revision to the Sessions Judge.

6. There is however a point which I have to notice for myself and that is the form of the final order which has been passed. That order reads as follows:

B. Madan Mohan Lal (the husband) 'will therefore give joint possession to Mt. Sheoraj Kunwar (the wife) or file a suit in the civil Court and inform this Court that he has done so within a fortnight. If it is not possible for both parties to keep possession, then possession to stay as at present till the decision of the civil suit.

7. That order is neither intelligible nor workable as it stands nor is it in accordance with Section 145. After referring to the fact that the house stood in the name of the woman the Magistrate says that she had at least as much right as her husband and refers to the fact that whatever rights the husband might have had he was failing to give effect to them, because he was so frequently away at Agra, and in one place the Magistrate finds definitely:

I find the fact of her possession at the time alleged about the middle of March established.

8. His judgment might have been perhaps more clear but it is clear that at any rate the weight of evidence was in his opinion in favour of the woman. He should then have proceeded to declare her possession by forbidding the other parties to disturb her until they had established their rights if they had any in the civil Court. I notice that the Magistrate in his explanation admits his-technical mistake in omitting to pass a. complete order in the terms of Section 145(1) and he adds:

This is an unfortunate case. I hope it will be finally settled satisfactorily by the appropriate party.

9. I am satisfied that the Magistrate did his best and did justice in the matter as-far as he could, and that he was in substance right with the exception that it is necessary to vary his final order to bring it within the terms of the Code. Setting, aside his order, I declare Mt. Sheoraj Kunwar to be entitled to exclusive possession of the house until evicted therefrom in due course of law and 1 forbid all disturbance of such possession, and if she is not now in possession I direct that whoever of the parties may be in possession do restore to her exclusive possession of the house. I reject the reference acting under Section 439, Criminal P.C. of my own motion.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //