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Janaki Nath Kundu Pal and ors. Vs. Monmohan De and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal263a
AppellantJanaki Nath Kundu Pal and ors.
RespondentMonmohan De and ors.
Excerpt:
- .....of the previous proceedings. no. 1 of the second party appeared and contest-ad the case and a written statement was filed in the month of august, 1922. some dispute has arisen as to whether this written statement was filed by no. 1 of the second party alone or whether it was filed by him on behalf of all the others. i think that there is considerable force in this contention having regard to the use of the words 'us' and 'our' in the copy of the written statement before me, namely, that it was filed by no. 1 of the second party on behalf of himself and others. matters proceeded in the absence of the second party other than no. 1 and the magistrate made the order to which we have already referred. now the second party says that inasmuch as they had no notice of the amendment of the.....
Judgment:

1. This Rule was granted at the instance of the second party, other than No. 1 of that party, against an order of the Magistrate, dated the 16th of March, 1923, forbidding interference by the second party with a certain pathway. The Rule was granted on the ground that the second party other than No 1 of that party were not served after an amendment in the proceedings had been made. The facts shortly areas follows. On the 18th of May, 1922, an information was received of a possible breach of the peace in respect of the pathway which was in dispute in these proceedings. On the 26th of May a Police Report was received by the Magistrate which referred to the whole of the pathway. On the 5th of June proceedings were drawn up under Section 107 but on the 6th of July on the petition of the second party the proceedings were changed to proceedings under Section 147. As those proceedings ware drawn up it seems to me that they only referred to a portion of the pathway in dispute running by the southern side of Monhor Das or De's tank. Then on the 21st of July, 1922 the first party applied ex parte for the pathway to be further defined. Accordingly, the proceedings were amended and the amendment extended these proceedings to the whole pathway in dispute and not merely to that portion which was indicated in the proceedings originally drawn up. This amendment was made ex parte and no notice was served on any of the second party although they had been duly served in respect of the previous proceedings. No. 1 of the second party appeared and contest-ad the case and a written statement was filed in the month of August, 1922. Some dispute has arisen as to whether this written statement was filed by No. 1 of the second party alone or whether it was filed by him on behalf of all the others. I think that there is considerable force in this contention having regard to the use of the words 'us' and 'our' in the copy of the written statement before me, namely, that it was filed by No. 1 of the second party on behalf of himself and others. Matters proceeded in the absence of the second party other than No. 1 and the Magistrate made the order to which we have already referred. Now the second party says that inasmuch as they had no notice of the amendment of the proceedings they were not bound by the order.

2. As against this it is said that we should assume that they knew all about it, firstly, from the written statement and secondly from the facts that they or some of them were present when the local investigation was held by a mukhtear under the direction of the Court and also from the fact that it is said that there was really no change from the proceedings as originally drawn up and as amended and that the second party knew all along that the whole of the pathway and not merely a portion thereof was in dispute. Now it seems to me that it is elementary right of a party when an amendment is made in the proceedings to have notice thereof and we do not see why we should be asked to infer from the written statement and from the mukhtear report and from the other matters that the second party other than No. 1 of that party really knew what was going on and were not prejudiced. The elementary rights must be preserved and on this ground and in the circumstances we make the rule absolute. The order of the Magistrate will remain binding only on No. 1 of the second party.


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