1. In this case a Rule was issued calling upon the Chief Presidency Magistrate and the opposite party to show cause why certain orders should not be set aside. These orders were made under Section 144, Criminal P.C., and Section 188, I.P.C.
2. It appears that petitioner 1 is the owner of premises Nos. 23-A and 23-B Masjid Bari Street, Calcutta, and the opposite party is the owner of 24/3, Masjidbari Street. Between the premises there was a passage. This originally had been six feet wide. On about two feet of this the opposite party had built a wall; but she claimed that the whole six feet belonged to her Petitioner 1 claimed that the balance of four feet odd belonged to her. She became apprehensive that the opposite party was making a hole in this wall, so that they could use this remaining part of the original passage claimed by her. Instead of waiting until any such hole was made and then asking the Court for an injunction, she was advised to build a wall of her own up against the wall built by the opposite party. In passing, I ought to mention that the opposite party claimed that they had always had a door in this wall and therefore had a right to use the passage which, they said, belonged to them. When the opposite party saw the petitioners, workmen digging the foundations other wall, they applied to the Magistrate and got an order under Section 144 which was made on 4th May 1933, restraining her from proceeding with the building of the wall and ordering her to fill up the excavation at her own cost. This order was made by Mr. Wajid Ali who was then acting for the Additional Chief Presidency Magistrate. But he reverted to his position as Third Presidency Magistrate on 16th May when Khan Bahadur A. Gaffur was appointed Additional Chief Presidency Magistrate. On 19th May Khan Bahadur A. Gaffur took up the case and asked Mr. Wajid Ali to make an inspection which he did. Subsequently, the present petitioner showed cause against the order, but did not succeed in getting it set aside. As however she failed to obey it, a subsequent order was made, giving the opposite party leave to fill up the excavation at his own cost and that has been done.
3. The points taken on behalf of the petitioners are: (1) that the Magistrate had no power to make the order. Section 18, Criminal P.C., provides that the Local Government may appoint a sufficient number of persons as Presidency Magistrate and one of them to be Chief Presidency Magistrate. Also that they may appoint any person to be an Additional Chief Presidency Magistrate who shall have all the powers of the Chief Presidency Magistrate as the Local Government may direct. 8. 144 of the Code provides that the powers under that section shall only he exercised by a District Magistrate, a Chief Presidency Magistrate, a Subdivisional Magistrate or any other Magistrate specially empowered by the Local Government or the Chief Presidency Magistrate or the District Magistrate to act under this section. Sub-section 4 provides that any Magistrate may either on his own motion or on the application of any person aggrieved' rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor in-office. The contention is that as Mr. Wajid Ali had ceased to be Additional Chief Presidency Magistrate on 16th May 1933 he had no power to make what the petitioners call the final order' that is to say, the order made after hearing the present petitioner. In our opinion this contention is unsound. The order under the section was made on 4th May when Mr. Wajid Ali had power to make it. Under the procedure, an opportunity is given to the other side to apply to have the order set aside. If he succeeds, the Magistrate will set aside the order previously made under the section. If he fails the original order stands.
4. The second point is that the Magistrate is only entitled to make a restrictive order preventing the opposite party from doing an act, but that it does not enable him to make a mandatory order directing the opposite party to do some act. The original order of 4th May directed the opposite party, who is the present petitioner 1 to fill up the excavation and as she failed to obey this part of the order, proceedings were started against her under Section 188, I.P.C. In our opinion, this part of the order was beyond the Magistrate's powers being in effect mandatory. Consequently, the present petitioners were under no obligation to obey it and the proceedings under Section 188, I.P.C, must be set aside. The Rule is made absolute to this extent only. That part of the order which restrained the petitioners from building a wall stands.
M.C. Ghose, J.
5. I agree.