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Ram Sahai and ors. Vs. Uttama Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All79; 152Ind.Cas.737
AppellantRam Sahai and ors.
RespondentUttama Debi and ors.
Cases ReferredPeare Lal v. Emperor
Excerpt:
.....stay those proceedings until the matter has been decided by a competent civil court on such conditions as may to it seem fit in the varying circumstances of each case. there can be no doubt that the learned magistrate was satisfied that there was reliable evidence produced by srimati uttama debi which, in the opinion of the magistrate, satisfied him that the denial made by srimati uttama debi, was well founded in the circumstances of the case, and it is not possible for me in revision to interfere with the view of the learned magistrate on this point......p.c., and confirmed by the learned sessions judge.2. the facts may be briefly stated. one srimati uttama debi, wife of chaudhari raghubir narain singh, is the owner of a kothi no. 5133 called the 'aziz manzil' situate on the western kutcherry road in meerut. after she had acquired this property one bulaqi applied under section 133, criminal p.c., against one ratan lal, said to be a karinda of srimati uttama debi, (it is however alleged before me by counsel for srimati uttama debi that ratan lal is not her karinda but the karinda of her husband) for the removal of a pucca wall erected by ratan lal across a certain path which was alleged to be a public path in which the public had a right of way. it might be mentioned here that srimati uttama debi was not a party to these proceedings......
Judgment:
ORDER

Bajpai, J.

1. Tins is an application m revision by Ram Sahai and others against an order passed by a Magistrate under Section 139(a), Criminal P.C., and confirmed by the learned Sessions Judge.

2. The facts may be briefly stated. One Srimati Uttama Debi, wife of Chaudhari Raghubir Narain Singh, is the owner of a kothi No. 5133 called the 'Aziz Manzil' situate on the western Kutcherry Road in Meerut. After she had acquired this property one Bulaqi applied under Section 133, Criminal P.C., against one Ratan Lal, said to be a karinda of Srimati Uttama Debi, (it is however alleged before me by counsel for Srimati Uttama Debi that Ratan Lal is not her karinda but the karinda of her husband) for the removal of a pucca wall erected by Ratan Lal across a certain path which was alleged to be a public path in which the public had a right of way. It might be mentioned here that Srimati Uttama Debi was not a party to these proceedings. Notices of those proceedings were served on Ratan Lal by affixation and the learned Magistrate on 8th June 1932, passed an ex parte order ordering the demolition of the wall. The wall was subsequently demolished. In July 1933, a kachha wall was erected and the path was again obstructed with the result that an application was filed by eleven persons, under Section 133, Criminal P.C., against Chaudhari Raghubir Narain Singh. Once again notice was served on Chaudhari Raghubir Narain Singh, by affixation and on 18th July 1933, the Joint Magistrate ordered the wall to be demolished and the way to be opened. This order was carried out on 19th July 1933. Some time afterwards Srimati Uttama Debi petitioned the Magistrate that she was the owner of the kothi and she had no knowledge of the above proceedings and therefore the proceedings might be revived. The learned Magistrate re-opened the case on 7th August 1933, and the matter was referred to arbitration but the arbitration proved infructuous.

3. In 1934 the path was again blocked and this time it was blocked by certain brambles. The applicants before me applied to a Magistrate for taking proceedings under Section 133, Criminal P.C., against Srimati Uttama Debi, Chaudhari Raghubir Narain Singh and Ratan Lal. Srimati Uttama Debi in pursuance of the notice issued to her filed a statement and denied the existence of a right of way. The learned Magistrate commenced an enquiry on such denial under Section 139(a), Criminal P.C., And came to the conclusion that there was reliable evidence in support, of the denial. He therefore stayed the proceedings until the matter of the existence of such right was decided by a competent civil Court. He went a step further and directed:

the applicant to proceed to obtain a declaration from the competent civil Court that there is a, public right of way from the Western Kutcherry Road through the compound of kothi 'Aziz Manzil' past the out-houses alongside Bulaqi's disused well across fields beyond this well to the west to join up with the recently constructed road to Rao Bahadur Girraj Singh's new house from the Roorkee Road, as shown in the plan filed by the applicant.

4. In revision the main contention of the applicants is that the learned Magistrate should not have directed any particular party to obtain a declaration from the civil Court. This contention is supported by several authorities of this Court. In Manohar Singh v. Emperor 1929 All 220, Boys, J., observed that:

there is no direction in Section 139(a) as to which of the parties is to be directed to go to the civil Court but that appears to me to give rise to no real difficulty. The Court is not directed to quash the proceedings altogether but to stay the proceedings. Nor do I find any obligation on the Magistrate to force the opposite party or any particular party into Court. It is clearly within its inherent jurisdiction to stay those proceedings until the matter has been decided by a competent civil Court on such conditions as may to it seem fit in the varying circumstances of each case.

5. In Rozan v. Emperor 1930 All 658, Dalal J., quashed the order of the Magistrate by which a direction was given to a particular party to file a suit for declaration in a competent civil Court. In Cr. Ref. No. 333 of Peare Lal v. Emperor 1934 All 853 decided on 13th July 1932, Bennet, J., modified the order of the trying Magistrate, by which the defendants were directed to establish their rights in the civil Court within three months of the order, by substituting the following order:

The proceedings are stayed until the matter of the existence of such right has been decided by a competent civil Court.

6. I am in complete agreement with the views expressed by three learned Judges of this Court in the above cases.

7. It was further contended before me that the learned Magistrate should in the present case have taken proceedings under Section 143, Criminal P.C. The simple answer to this is that the learned Magistrate was not moved in this direction. The petition of the applicants, in so many words, asked for proceedings being taken under Section 133, Criminal P.C. Moreover, Section 143 contemplates the prevention of a repetition or the continuance of a public nuisance by the party against whom an order under Section 133, Criminal P.C., has already been passed. There can be no doubt that an order under Section 133, Criminal P.C., binds the person against whom the order is passed and nobody else. This was held in Jugul Kishore v. Emperor 1928 All. 300, Ashworth J., held that:

an order under Section 133, Criminal P.C., and any order under the subsequent sections is an order against a particular individual.

8. It is therefore clear that no order could, have been passed under Section 143, Criminal P.C., against Srimati Uttama Debi who was not a party in any earlier proceedings when orders under Section 133, Criminal P.C., were passed. As I said before, the first order under Section 133, Criminal P.C., was passed against Ratan Lal and the second order was passed against Chaudhari Raghubir Narain Singh and, even if Ratan Lal be held to be the karinda of Srimati Uttama Debi, a fact which is denied, an order passed against Ratan Lal cannot bind Srimati Uttama Debi. This was held by Niamatullah, J., in Peare Lal v. Emperor 1934 All. 853, the only difference being that in that case the learned Judge was considering the force of an order passed under Section 145, Criminal P.C., and it was held that when the real dispute was between the matter of the complainant and another person and if the Court issued notice to the agent and the case proceeded between the agents then the master was not bound. A subsidiary question was argued before me and it was to the effect that the learned Magistrate had no jurisdiction to re-open the proceedings on 7th August 1933, on the application of Srimati Uttama Debi, when an absolute order was passed on 18th July 1933, against Chaudhari Raghubir Narain Singh and the order was actually carried out on 19th July 1933. This matter does not necessarily arise in the present proceedings, but for the benefit of the Subordinate Courts I might mention that an order passed by a Criminal Court is not liable to be reviewed. It is true that the application for revival was made by Srimati Uttama Debi on the ground that she was not a party to the proceedings, but the proper order to pass on such an application was to say that she was in no way bound by the order dated 18th July 1933, and not set aside that order (when that in effect had been carried out) and to direct the matter to be referred to arbitration. There can be no doubt that the learned Magistrate was satisfied that there was reliable evidence produced by Srimati Uttama Debi which, in the opinion of the Magistrate, satisfied him that the denial made by Srimati Uttama Debi, was well founded in the circumstances of the case, and it is not possible for me in revision to interfere with the view of the learned Magistrate on this point.

9. The result is that I allow this application to this extent that for the order passed by the learned Magistrate I substitute the following order:

The proceedings are stayed until the matter of the existence of such right has been decided by a competent civil Court.


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