Chetu etc. vs Hari Ram and Another

Chet Ram Thakur, J.—All these criminal revision petitions purporting to be under sections 397/401 CPC read with Section 482 CPC and Article 227 of the Constitution of India, are directed against similar orders passed in four revision petitions filed by Shri Chetu against the Respondents before the learned Sessions Judge, who dismissed all the petitions for default of the Petitioners to appear.

The order reads as:

The case is called thrice but no body is present for the Petitioner. Hence this petition is dismissed for default of the Petitioner. The file be now consigned to the record after needful. Announced.

Sd/- P.L. Sharma, Addl. Sessions Judge, 8.9.1975.

From the record it is revealed that the present Petitioners Chetu and others were the owners of the land regarding which a dispute, according to the present Respondents, who moved the Sub-Divisional Magistrate, Mandi under the provisions of Section 145 likely to cause a breach of peace, existed. The Respondents before this Court were all the tenants. On 17-5-1964 Chetu and others owners filed suits against the present Respondents in all the four petitions in the Court of the Additional Sub-Judge, Mandi for possession of the land. In those suits compromises were effected, whereby the landowners Plaintiffs agreed to grant the ownership rights in respect of one half share in the land to the Defendants, whereas the Defendants also agreed to part with one half of the possession in the land which was in their possession to the landowner Plaintiffs. Thereafter it appears that decrees in terms of those compromise were passed on the 9th October, 1968, for possession of one half of the lands in the suits against the Defendants and the present Respondents. Thereafter it appears that executions for delivery of joint possession were taken out by the decree-holders i.e. the present Petitioners and the Additional Sub-Judge passed orders for consignment of the execution petitions as being fully satisfied on the ground that the possession had been delivered in terms of the decrees.

Hari Singh and others Respondents in all these revision petitions, moved applications on 30-6-73 under the provisions of Section 145 CPC before the Sub-Divisional Officer, Sadar Mandi, alleging therein that they were in actual physical possession of the land as non-occupancy tenants in respect of the lands mentioned therein and it was further averred by each of them in respect of their respective petitions "that the Applicant is non-occupancy tenant and in actual physical possession of this land since long (though since recently have acquired a share of proprietary rights also in the above said land)". It had also been further stated that the Respondent No. 1 i.e. Chetu was one of the owners of the land in dispute and that the Applicant was a non-occupancy tenant and in actual physical possession of the land in dispute. In para 4 of each of the petition, it was stated that with the ulterior motive the Respondents wanted to dispossess the Applicants from the land in dispute forcibly. The Respondents are not in possession of the land in dispute. They have no right to interfere with the possession of the Applicants and then in para 5 they gave four dates on which the Respondents were alleged to have gone on the land with sharp edged weapons and threatened the Applicants with dire consequences in case they cultivated the land and did not hand over the possession and it was in these circumstances that they moved the applications.

I need not say anything about the orders passed by the learned Magistrate as to whether they are legal or otherwise, because against those orders Sh. Chetu went in revision before the Id. Sessions Judge, who dismissed the revision petitions for default as already stated.

The question which arises is whether this order passed by the learned Addl. Sessions Judge is a valid and a legal order? The learned Counsel for the Petitioner has contended that this order is wholly bad and invalid in law because there is no provision in the CPC authorising a Criminal Court to dismiss in default a criminal revision or a criminal petition. There are certain complaint cases in which power has been, however, given to the Magistrate for dismissal of a complaint for default but in a case like this the learned Addl. Sessions Judge was not competent to dismiss the case for default and he has also relied on Mina Ram and Ors. Petitioners v. fivlu Budhu Respondents 1974 Cri.L.J. 719 Himachal Pradesh High Court to support his contention.

On the contrary the learned Counsel for the Respondents submits that the nature of the enquiry u/s 145 is quasi civil. There can be no dispute that the nature of the enquiry u/s 145 is quasi civil. But it can''t be lost sight of that the object of Section 145 is to prevent breach of peace where the dispute relates to the immovable property. Therefore the contention that the proceeding is of a quasi civil nature will not mean that the criminal courts will not pass an order for the prevention of any breach of peace when there is a dispute with regard to the title or possession between the parties. The Magistrate is not relieved of his duty merely because the person on whose instance the proceedings are initiated fails to appear. In the instant case it was obligatory upon the learned Sessions Judge to have perused the record and then pass a legal order whether the Magistrate acted within the jurisdiction conferred upon him by the statute. He had no discretion to straightaway dismiss this quasi criminal proceeding in this fashion which is quite unwarranted by any of the provisions under the Code except in specially provided for cases. The learned Counsel for the Respondents has relied on Babu Ram Petitioner v. Ramji Lal and Ors. Respondents 1964 P.L.R. 196 to show that if once a Magistrate passes an order dismissing for default an application u/s 145 of the Code, the proceedings cannot be restored. A criminal court other than a High Court does not possess any inherent powers nor is there any provision in the Code to review its judgment or order, not even in cases where the order is patently wrong or contrary to law. This authority in my opinion is not applicable to the facts of the present case. Here the order is not sought to be reviewed or set aside by the Sessions Judge himself, who dismissed the case for default. In fact the Petitioner has come up to this Court under the provisions of Section 482 CPC and Article 227 of the Constitution. The order is without jurisdiction and, therefore, under the inherent powers the High Court can set aside that order and under Article 227 of the Constitution the High Court is empowered to pass orders in suitable cases in order to keep the subordinate Courts within the bounds of their jurisdiction. In the case cited above, the Petitioner had moved an application u/s 145 and the learned Magistrate passed a preliminary order. After several adjournments when the case was taken up on a later date that is, on 25th November, 1961, the Petitioner was found to be absent and accordingly the learned Magistrate dismissed his application in default. Later in the day, the Petitioner came to the Court and put in afresh application u/s 145 on the same allegations as made in the earlier application. In a note appended to that application he stated that his earlier application had been dismissed in default and prayed that after setting aside that order of dismissal in default, the proceedings be continued. Preliminary order was issued in the latter application and the Respondents appeared and contested the application. The learned Magistrate after recording the evidence etc. found that the Respondents were in possession of the land on the date of the preliminary order and directed that they shall not be ousted except in due course of law. Aggrieved by this order, the Petitioner went in revision to the Court of Sessions and he in that revision petition attacked the earlier order of dismissal of his application for default. The learned Sessions Judge upheld the contention of the Petitioner that the dismissal of the proceedings for default of the Petitioner on 25th November, 1961 was illegal and, therefore, the first preliminary order passed on 24th October, 1961 was still in operation and effective and that the second preliminary order passed on 2nd January, 1962 could not be said to be valid, and, therefore, he recommended that the impugned order which was passed on a consideration as to who was in possession of the land on 2nd January, 1962 was not warranted by law and the same resulted into miscarriage of justice. The High Court agreed with the recommendation of the Sessions Judge to the effect that the order passed by the Magistrate on 25th November, 1961 dismissing the Petitioners application dated 24th October, 1961, in default of appearance was not a valid order. It was further observed that after the passing of this order i.e., the order of dismissal for default two courses were open to the Petitioner. He could have either approached the High Court for setting it aside or put in afresh application u/s 145 CPC if the dispute about that property still existed and likelihood of breach of peace was continuous. If he disputed the correctness of first order of dismissal and did not wish to put in a fresh application u/s 145 of the Code then the order in dispute could be set aside only by this Court u/s 439 CPC The Magistrate who had once passed the order of dismissal had no jurisdiction to review that order or to set it aside. Therefore, the facts of this case are altogether different and they have got no application to the present case. Further it was held, "since in the case before us the original order of dismissal passed on 25th November, 1961, had not been challenged in a superior Court nor was it set aside in a proper proceeding, that order continued to be valid. Merely because it was a wrong order it cannot be said to have been made without jurisdiction". Therefore, in these circumstances it would appear that this authority will not be of any assistance to the learned Counsel for the Respondent because in that the Petitioner had not challenged the original order of dismissal in a superior Court nor was it set aside in appropriate proceedings and, therefore, that order continued to be valid. But in the instant case the Petitioner has moved this High Court for setting aside this order which is illegal.

The second authority on which reliance has been placed by the learned Counsel to defend the order passed by the learned Sessions Judge is Ramautar Thakur and Ors. Petitioners v. State of Bihar, Opposite Party AIR 1957 Patna 33, By citing this authority the learned Counsel wanted to emphasis that there is no provision in the Code for the restoration of an order dismissing the application in default. But I am afraid if this authority has got any relevancy for the decision of the present case. In fact it was a order of dismissal of a revision petition for default, passed by the High Court itself. In this case the Petitioner after about 4 or 5 days of the decision moved an application for restoration of the criminal revision and it was held that in criminal revision the High Court acts at its own discretion and its order dismissing the revision for default is with jurisdiction. No Petitioner has aright to be heard, and the High Court is not compelled to interfere with a judgment brought to its notice unless it so thinks fit. Further it was held that the provision of Section 369 and 430 of the Code did not at all bar or affect the inherent jurisdiction contained in Section 561-A to restore a criminal application for the ends of justice in appropriate cases. Here in the instant case the order of dismissal passed by the learned Sessions Judge was not sought to be reviewed or sought to be set aside by that very court but the Petitioners have come up to this Court for setting aside that order because the Sessions Judge himself has got no power to review and restore his earlier order except rectifying clerical errors. Therefore, this authority will not be of any assistance to the learned Counsel for the Respondents. Therefore, what follows is that the order is without jurisdiction and, therefore, is not sustainable irrespective of the merits of the case on which this Court is not to comment.

The revision petitions are, therefore, allowed and the orders under revision are set aside and the cases are remitted back to the learned Sessions Judge to pass appropriate order in accordance with law.

This order, therefore, disposes of all these four petitions.