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Muthukumaraswami Nadar and ors. Vs. Muhammad Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1922Mad76; 67Ind.Cas.500; (1922)42MLJ352
AppellantMuthukumaraswami Nadar and ors.
RespondentMuhammad Rowther and ors.
Cases ReferredEmperor v. Dhantua Lodhi
Excerpt:
- - rangachariar for the petitioners, the nadars, has urged several objections to this order on the ground that it is made without jurisdiction, and the first objection is that, although under section 144(5) no order can remain in force for longer than two months, the learned district magistrate has not only failed to insert such a provision in his order but has virtually issued the injunction restraining the nadars till their claim is settled by a civil court. it will be observed that the final order of the district magistrate refers to the preliminary order dated the 23rd march and the preliminary order is clearly one passed on an appeal from the sub-divisional magistrate's order--see the heading on the top of the paper......10th april 1921, the final order to which this revision petition is directed was passed. in it the learned district magistrate holds that the nadars have not established their right to drag the car over the disputed land and that, until the question is settled by the civil court, their claim to exercise that right should not be upheld. he however proceeds and prohibited under section 144 the counter petitioners, or any of the nadar community or any one on their behalf from taking the car in procession round the west and front of the temple. mr. rangachariar for the petitioners, the nadars, has urged several objections to this order on the ground that it is made without jurisdiction, and the first objection is that, although under section 144(5) no order can remain in force for longer.....
Judgment:
ORDER

Odgers, J.

1. This is a petition to revise the order of the District Magistrate, Ramnad, dated the 10th April 1921. It appears that, in the village of Aruppukottai there is a Nadar temple, Mariamman Koil, round which the Nadars claim the right of dragging their temple car in procession once a year. There is a rival faction in the village composed of Muhammadans who apparently resent the dragging of the car round the Western and Northern sides of the temple on the ground that the land on those sides belongs to them.

2. The first proceeding in connection with the present petition occured on the 19th March 1921 when the Sub-Divisional Magistrate made an order under Section 144 of the Criminal Procedure Code by which he directed that the car be peacefully taken round the temple through the Western and Northern streets of the temple without infringing the rights of the Musalmans on the street to the North, and prohibited certain Musalinans from interfering with it during the festival. On appeal to the District Magistrate, he passed an interim order on the 23rd March 1921, on representation from the leading Nadars, to postpone the dragging of the car but rescinded the order of the Sub-Divisional Magistrate and prohibited the Nadar community from taking the car in procession round the West and (North) fronts of the temple. On the 10th April 1921, the final order to which this revision petition is directed was passed. In it the learned District Magistrate holds that the Nadars have not established their right to drag the car over the disputed land and that, until the question is settled by the Civil Court, their claim to exercise that right should not be upheld. He however proceeds and prohibited under Section 144 the counter petitioners, or any of the Nadar Community or any one on their behalf from taking the car in procession round the West and front of the temple. Mr. Rangachariar for the petitioners, the Nadars, has urged several objections to this order on the ground that it is made without jurisdiction, and the first objection is that, although under Section 144(5) no order can remain in force for longer than two months, the learned District Magistrate has not only failed to insert such a provision in his order but has virtually issued the injunction restraining the Nadars till their claim is settled by a Civil Court. The preliminary objection for me to decide is whether I ought to go into this and other objections to jurisdiction on the ground urged by Mr. Vas, the learned Counsel for the respondent namely, that the order being only enforcible under the Act for two months and those two months having long ago expired there is no reason why this Court should investigate the legality or otherwise of the order in question. I confess I have been strongly impressed with this argument in support of which several cases have been quoted. Govinda Chetti v. Perumal Chetli I.L.R.(1913) Mad. 489 and Emperor v. Vinayak Narayan Arte 38 Bom. 719. There is no doubt that there have been cases where a Criminal Revision Petition has been entertained although the period of two months had long since expired. As for instance in Ramanadhan Chetti v. Murugappa Chetti I.L.R.(1900) Mad. 45 where the order was given on the 22nd September 1899 and the judgment in revision delivered on the 10th April 1900. Nothing seems to have been said in that case as to expiry of the time for which the order could remain in force. So also in Bhairo Gope v. Emperor (1920) 57 I.C. 662, though in Govinda Chetti v. Perumal Chetti I.L.R.(1913) Mad. 489, as the two months had expired the learned Judge declined to revise the order. If I am of opinion that this order is wrong although it may have expired, it seems to me I should not be deterred from expressing my views about it, in case it is sought to use it in any way in the litigation which is already pending on behalf of one side or the other, in so far as it purports to settle, even only for the time being, the respective claims or rights of the parties. I therefore, though with some hesitation, decide that the order must be examined to see whether it was passed with or without jurisdiction in spite of the fact that it has expired.

3. As already stated several points were taken against the validity of the order by Mr. Rangachariar. I think it may be only necessary to deal with two or three of them. I have already quoted the terms of the order and from the words quoted it is clear that the order is indefinite as to time. There was a similar order in Ramanadhan Chetti v. Murugppa Chetti I.L.R.(1900) Mad. 45, where the order was firstly not to interfere with the management of the koil and secondly not to take any part until a certain person was duly evicted from the koil management by due course of law. This latter direction was held to contravene the provisions of Sub-section 5 of Section 144- and it was held that to that extent the order was made without jurisdiction. In In re Meyyaru Animal (1914) M.W.N. 169 , Mr. Justice Sadasiva Iyer observed 'of course, if the Magistracy tries to use Section 44 as a means of granting a perpetual injunction the High Court has the power to interfere.' That seems to me what the learned District Magistrate has tried to do here. There is also in my opinion another and equally obvious defect in the learned Magistrate's order. Section 144(4) permits any Magistrate to rescind or alter any order made under this section by himself or any Magistrate subordinate to him. Here, as pointed out above, the learned District Magistrate has not confined himself to rescinding the order of the Sub-Divisional Magistrate but has prohibited the counter-petitioners or any of the Nadar community from taking the car in procession. Mr. Rangchariar relying on Emperor v. Dhantua Lodhi (1919) 47 I.C. 76 , contends that the word 'alter' cannot mean substituting the names of one party for those of the other. Mr. Vas for the respondents has ingeniously contended that the order passed by the learned District Magistrate, in so far as it restrains the Nadars, is not an order in appeal at all under Section 144(4) but it is a totally new order which the District Magistrate took upon himself to pass as he feared a breach of peace. It will be observed that the final order of the District Magistrate refers to the preliminary order dated the 23rd March and the preliminary order is clearly one passed on an appeal from the Sub-Divisional Magistrate's order--See the heading on the top of the paper. It therefore seems to me that I cannot on the state of the record say that the final order of the District Magistrate was not passed on appeal from the Sub-Divisional Magistrate and' I therefore hold that it is not a new order, but under the circumstances I have detailed, one which the learned District Magistrate had no jurisdiction to pass.

4. Mr. Kangachariar also relied on the fact that there was an existing order under Section 147 passed on the 20th April 1915 by the Sub-Divisional Magistrate at that time directing the Musalmans not to spread their looms on one of the pieces of land in dispute and holding that the land in question was a public road. Mr. Kangchariar's contention is that this order under Section 144 is illegal because it deprives him of any benefit he may have under the order passed under Section 147 which is in force until it is displaced by something else. I do not think it necessary to decide as to this contention in view of the opinion I entertain on the two other points detailed above.

5. Under the circumstances I must hold that the order of the learned District Magistrate was passed without jurisdiction and I must allow the Criminal Revision Petition. Under the circumstances I do so without costs.


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