1. It is a Reference by the learned Sessions Judge of Benares recommending that certain orders passed by two successive Magistrates may be set aside.
2. It appears that the parties to this Reference, viz., Haji Ali, the applicant and Ali Asghar, the opposite party, are close neighbours. Ali Asghar went before the Joint Magistrate of Benares with the complaint that the rainwater of his house used to flow through the house of Haji Ali, that Haji Ali had closed the drainage and that this (Ali Asghar's house) was in danger. He wanted the Magistrate to take action under Section 144 of the Cr.P.C. and order Haji Ali to remove the obstruction. The learned Joint Magistrate called for a police report and on receipt of it passed an ex parte order on the 29th of August, 1924, ordering Haji Ali to open the drain. Haji Ali took exception to this order and appeared before another Magistrate, the learned Joint Magistrate being absent from the station. At Haji Ali's request Mr. J.N. Singh, a Magistrate, ordered the Naib Tahsildar to put up a report. The Naib Tahsildar on inspection came to the conclusion that it was impossible for him to say definitely how the water flowed. He however, discovered that from the remaining portions of the house of Ali Asghar the water found its way out towards the south where there was a main drain and he thought and reported that Ali Asghar could take the same measure with the water of that portion of the house about which the controversy was. Mr. Singh was of opinion that there was no reason to interfere with his predecessor's order and refused to amend it. Thereupon Haji Ali wente, before the learned Sessions Judge.
3. The learned Sessions Judge has stated the facts in a slightly different manner, but that does not really affect the merits of his recommendation. It appears to me that any urgency in the affair is wanting. An action should be taken under Section 144 only in urgent cases of nuisance or apprehended danger. It is not proper that Criminal Courts should take upon themselves a jurisdiction to decide what are really civil disputes. The Naib Tahsildar's report shows that it was open to Ali Asghar to take measure with the excess water accumulating in his courtyard by draining it off towards the south. He had his remedy open in the Civil Court and that was his proper remedy. If it had bean the case that water could not find its egress by any means within the disposal of Ali Asghar, the matter would have been different.
4. In the circumstances of the ease I accept the recommendation of the learned Sessions Judge and set aside the orders of the learned Magistrates, dated, respectively, 29th August, 1924, and 11th September, 1924.