Gora Chand Sardar vs Sunil Kumar Purkait

Paras. 5-9 Sankar Prasad Mitra, C.J.—This is an application under Sections 439 and 561A of the Code of Criminal Procedure as also under Article 227 of the Constitution of India. One Sunil Kumar Purkait made an application as a constituted Attorney of Pioneer Salt Manufacturing Co. Ltd. u/s 144 of the Code of Criminal Procedure. The complaint was that the company through the Petitioner Sunil was in possession of 107-50 acres of land in mourn Kantamari, P.S. Sultali, in the district of 24-Parganas. It was stated that Anil Gayen, Gorachand Sardar and Upen Sardar, being opposite parties Nos. 2, 3 and 4 were bargadars in respect of certain portions of the land. And these bargadars along with the other opposite parties were causing disturbances and interfering with the aforesaid possession of the Petitioner Sunil. The Magistrate called for a Police report, drew up a proceeding u/s 144 and ultimately converted it into a proceeding u/s 145 of the Code. He passed an order of attachment of the subject-matter of the dispute pending decision under the section and also appointed Receiver.

As the Magistrate was unable to decide as to which of the parties was in possession at the material date, he drew up a statement of the case and forwarded the record of the proceeding to the Third Court of the Munsif at Baruipur to decide the question whether any and which of the parties was in possession of the subject-matter of the dispute at the date of the order as required by Sub-section (4) of Section 145 of the Code. The said Munsif decided the question of possession so referred to him and passed the following order, being his order No. 37 dated April 29, 1972:

...after careful consideration ,of all the facts and circumstances and affidavits on record, I am of opinion that the O.P. Nos. 2, 3 and 4 (that is, Anil Gayen, Gorachand Sardar and Upen Sardar respectively) are in possession of the 1.83 decimals, 1.66 acre and 1.24 acre of land of plot No. 1276 of khatian No. 242 of mouja Kantamari and the first party is in possession of the rest of the land, j.e, 103.7.7 acres of khatian No. 242 of mouja Kantamari.

Second party members excepting 2, 3 and 4 are not in possession of the disputed property.

Let a copy of the order along with-the record of the Magistrate''s Court be sent to the said Magistrate for his information and taking action. The judgment of Misc. Case No. 94 of 1969 will govern the Misc. Case No. 93 of 1969. The Misc. Case is thus disposed of. Parties will bear their own costs of this Court.

On receipt of the record, Sri J. M. Sen Gupta, Magistrate, First Class, Alipore Sadar, proceeded to dispose of the proceeding u/s 145 of the Code in conformity with the decision of the civil Court. He passed the following order on May 12, 1972:

Seen the order of the civil Court deciding possession of the disputed land vide its order dated 29.4.72. The parties, as decided by the civil Court on reference by this Court u/s 146 Code of Criminal Procedure are, accordingly, declared to be entitled to possession until evicted there from in due course of law. All disturbance of such possession until eviction is forbidden. Ask the Receiver of the attached property to submit proper accounts and to deliver the sale proceeds. The produce and actual stock of produce lying with him are to be delivered to several parties according to their respective shares as decided by the above civil Court vide its order dated 29.4.72.

It .is this order of the Magistrate, First Class, Sadar Alipore, which is being challenged in this application. The civil Court''s order of April 29, 1972, is, as we shall discuss later, also being challenged.

It is well-known that the Magistrate''s order aforesaid cannot be challenged in revision in this Court. The reason is that Sub-section (ID) of Section 146 of the Code of Criminal Procedure expressly provides that no appeal shall lie from any finding of the civil Court given on a reference under this section nor shall any review of revision of any such finding be allowed.

Mr. Mukherjee for the Petitioners has contended before us that he has not challenged the civil Court''s order but the Magistrate''s order of May 12, 1972, which was ultimately passed. This argument is untenable. The finding given by a civil Court in pursuance of the provisions of Sub-section (IB) of Section 146 is a finding of a Court of civil jurisdiction. It is not subject to the jurisdiction of any criminal Court. As we have already stated, Sub-section (ID) of Section 146 bars appeals from such findings and prohibits review or revision of such findings. Since the order of the Magistrate is based on the civil Court''s finding, the Magistrate''s order cannot also be interfered with- in any way. The Magistrate''s order is inextricably linked to the finding that cannot be set aside by reason of the provisions of Sub-section (ID) of Section 146. Reference in this connection may be made to the Allahabad High Court''s decision in Chandi Prasad v. Ghaudhari Chandra Pratap Singh AIR 1070 All. 119.

Mr. Mukherjee for the Petitioners realised his difficulties. He then contended. that he was entitled to relief under Article 227 of the Constitution. In support of this proposition, he relied on a Full Bench decision of the Patna High Court in Raja Singh and Another Vs. Mahendra Singh and Others, . In this decision, the Patna High Court first said that a civil Court''s finding u/s 146(1D) can be interfered with. by the High Court u/s 439 of the Code of Criminal Procedure after the finding is adopted by the Magistrate and final order is passed by the Magistrate u/s 146(1B). This portion of the Patna High Court''s judgment can no longer be accepted owing to the Supreme Court''s decision in Ramchandra Aggarwal and Another Vs. State of Uttar Pradesh and Another, . Mudholkar J. speaking for the Supreme Court observed as follows:

No doubt, the Magistrate, while discharging his function under the Code of Criminal Procedure u/s 145(1) would be exercising his criminal jurisdiction because that is the only kind of jurisdiction which the Code confers upon the Magistrates, but when the Magistrate refers the question to a civil Court he does not confer a part of his criminal jurisdiction upon the civil Court. There is no provision under which he can clothe a Court or a Tribunal which is not specified in the Code of Criminal Procedure .with criminal jurisdiction....

It is clear from these observations of the Supreme Court that the civil Court''s finding u/s 146(1B) is a finding of a Court of civil jurisdiction only and is not subject to the jurisdiction of the criminal Court. No criminal Court, therefore, can hear any appeal from this decision or any application for review or revision.

The Full Bench of the Patna High Court, however, in the decision cited "above, has held further that the High Court''s power under Article 227 of the Constitution cannot be taken away or abridged by a legislative enactment. Sub-section (ID) of Section 146, therefore, according to the Patna High Court, cannot affect the High ''Court''s jurisdiction under Article 227 of the Constitution. The Patna High Court proceeds to add that there is no inflexible rule that the High Court cannot issue a writ or pass an order in exercise of its power under Article 227 simply because an alternative remedy is available. The High Court has discretion to entertain a petition for issue of a writ or order notwithstanding the existence of such an alternative remedy envisaged by Sub-section (IE) of Section 146, namely, an order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction. The Patna High Court says that the High Court cannot refuse to interfere in exercise of its power under Article 227, if a case is made out for exercise of such power, only on the ground hat, by means-of 3 lengthy remedy of a suit u/s 146(1E), the aggrieved party can get its redress. The High Court, however, as a rule, will not interfere with the finding of the civil Court merely on the ground of non-consideration of some evidence or spine irregularity found to have been committed by the civil Court. It is only in exceptional cases of flagrant violation, says the Patna High Court, of legal principles and that also after, the Magistrate has passed the final order in conformity with the civil Court''s finding that the High Court would interfere under Article 227. Otherwise, such an interference at an earlier stage will lead to duplication and prolongation of proceedings which the Legislature has intended to avoid.

The view of the Patna High'' Court, therefore, is that an order made under Sub-section (IB) of Section 146 can be interfered with under Article 227 of the Constitution if it can be shown that there has been flagrant violation of legal principles.

Mr. Mukherjee for the Petitioners invites us in the instant case to exercise our power under Article 227 of the Constitution on the ground that in the order under challenge there have been flagrant violations of recognised principles.

It is unnecessary for us to express any opinion on the correctness of the Patna High Court''s decision on Article 227 of the Constitution. Assuming that the said decision is correct, let us proceed to discuss the various legal principles which, Mr. Mukherjee says, have been violated in the present case.

The first contention is that the Magistrate''s order is bad, because the proceeding which gave rise to the order was also bad. This was a case of dispute between a Bargadar and a jotedar and it could be decided not by any civil Court but by the bhagchash officer in accordance with the provisions of chap. Ill of the West Bengal Land Reforms Act, 1955. Our attention was drawn to the case of Adhir Chandra Bera Vs. Vidyadhar Ari and Others, . In this case, it was held that Section 145 of the Code of Criminal Procedure ought not to be invoked in a dispute between persons who claim to be jotedars and persons who claim to be bargadars. These are matters for decision by the bhagchash officer who has the jurisdiction under the Land Reforms Act.

It may be that when there is a dispute between a person who claims to be a jotedar and a person who claims to be a bargadar, the bhagchash officer only is entitled to exercise jurisdiction for settlement or disposal of their dispute. But, in our case, there was no dispute between a jotedar on the one hand and a bargadar on the other. The complaint was that the Petitioner as the constituted Attorney of a company was in possession of certain plots of land. It was also stated that some of the opposite parties were bargadars in respect of certain portions of these plots. But the other opposite parties were also attempting to interfere with the Petitioner''s possession, though they were not bargadars at all. The dispute, therefore, was not a dispute between a jotedar and a bargadar but a dispute between a person who claims to be in possession and certain other persons who, according to the Petitioner, were none but trespassers. In these circumstances, it seems to us that the decision in Adhir Chandra Bera v. Vidyadhar Ari ( Supra ) is not apposite for our purposes.

The second contention is that Section 146(1) of the Code of Criminal Procedure speaks of ''a civil Court of competent jurisdiction''. Now, jurisdiction depends on two factors, namely, (a) pecuniary and (b) territorial. The civil Court of the Munsif which decided the dispute on reference by the Magistrate had territorial jurisdiction but did not have pecuniary jurisdiction as the area of the land in dispute was more than 107 acres. In the absence of pecuniary jurisdiction, therefore, counsel for the Petitioners before us has urged, the civil Court had no jurisdiction to pass any order on the dispute referred to it by the said Magistrate.

The simple answer to this contention is that the reference of a civil Court of competent jurisdiction under Sub-section (1) of Section 146 of the Code has no relation to .pecuniary jurisdiction. The value of the property involved in the proceeding started u/s 145 does not affect the jurisdiction of the civil Court to which the proceeding is referred u/s 146. In other words, under Sections 145 and 146 of the Code the competency of the civil Court consists in its territorial jurisdiction alone and not in its pecuniary jurisdiction. [Vide Chitaley''s Code of Criminal Procedure, 6th ed., p. 769, n. 6a.] The second contention of the counsel for the Petitioners is, therefore, overruled.

The third contention is that before the Munsif an application was made for issue of a commission to made local investigation. But the Munsif did not allow the application and proceeded to hear the case without giving an opportunity to the Petitioners to place relevant evidence through local investigation before the Court.

In our opinion, this contention is of no substance. Firstly, under subs. (1 A) of Section 146 the civil Court''s duties in this summary trial are (a) to peruse the evidence on record, and (b) to take such further evidence as may be produced by the parties respectively. Since his jurisdiction, so far as evidence is concerned, is restricted by the provisions of this Sub-section, he could not have passed an order under Order 26, r. 9 of the Code of Civil Procedure. Secondly, the order that is passed under Order 26, r. 9 is a discretionary order only. Assuming that the civil Court under s;. 146 of the Code of Criminal Procedure had the power to make an order under Order 26, r. 9 of the Code of Civil Procedure, it had also the jurisdiction to refuse the order. We do not find, therefore, anything, to hold that he had exceeded the bounds of his authority to enable us to interfere on this ground under Article 227 of the Constitution.

The fourth contention of the Petitioners is that before the civil Court the matter was once dismissed for default but was restored thereafter without giving an opportunity to the opposite parties of being heard. There was n6 sufficient cause for nonappearance of the Petitioners before the civil Court and, as such, the Court was not justified in setting aside the dismissal in terms of Order 9, r. 9 of the Code of Civil Procedure.

It appears from the Munsif''s order-sheet that on November 13, 197.1, he made an order for dismissal of the miscellaneous case for non-appearance at 11-10 a.m. We do not think that the Munsif was entitled to pass this order. Even if there be nonappearance of any of the parties the provisions of Sub-section (1A) of Section 146 require that he is to peruse the evidence on record and decide the question of possession. Assuming, however, that the order of dismissal is valid, we find further from the record that soon after the order was made on the same day, namely, November 13, 1971, the Petitioner before the Munsif filed a petition praying that the order of dismissal be vacated.. Copy of the petition was served on the same day on the second parties appearing before the Munsif.

On January 29, 1972, this petition was ultimately heard. The Petitioner submitted that all the evidence was on record and only the arguments were to be advanced. The Munsif allowed the petition and set aside the previous order of dismissal. This order does not also appear to us to be improper. Rule 9 of Order 9 of the CPC does not take away the Court''s inherent power to restore a suit or a case dismissed for default if there he a just and reasonable cause for restoring it. In other words, a Plaintiff may not be able to show ''sufficient cause'' within the meaning of Order 9, Rule 9 for his non-appearance, but the Court in the exercise of its inherent power can still restore the suit on .the ground that there is just and reasonable cause for doing so. For instance, where a case was called on at 12 o''clock, and the Plaintiff''s pleader being under the impression that the case would be taken up at 2 o''clock was engaged in other cases in other Courts, and the Plaintiff himself was waiting in his pleader''s room and the suit was dismissed for default of appearance, it was held that though there was no ''sufficient cause'' for non-appearance within the meaning of Order 9, Rule 9, the case was one in which the Court should in the exercise of its inherent powers restore the suit to the file: vide Lalta Prasad v. Ram Karan ILR 34 All. 426. Similarly, where a Plaintiff- believing that his case, which was fourteenth on the list, would not be reached immediately, did not attend the Court but went to bring his principal witnesses, and the. suit being called on, in the meantime, his counsel applied for an adjournment on the ground that his client was not in Court, but the application was refused and the suit dismissed, it was held that even if there was ho ''sufficient cause'' within the meaning of 0.9, r. 9, the Court had inherent power to restore the suit having regard to the special facts of the case: vide Bilasrai v. Carsondas 21 Bom.L.R. Q52. It has also been held that a Court under its inherent powers can restore an application made under Order 9, Rule 9 or Order 9, Rule 13, which had been dismissed for default of appearance: vide Kapura v. Karain ILR 27 Pat..187.

We are, therefore, of opinion that, even if the first order for dismissal was a proper order, the Munsif was right, on the special facts of the case, in setting aside the order of dismissal and restoring the matter to his list.

The last contention of the counsel for the Petitioners is that the concluding portion of the Magistrate''s order of May 12, 1972, was passed without jurisdiction. As we have seen, the concluding portion of the Magistrate''s order is as follows:

Ask the Receiver of the attached property to submit proper accounts and to deliver the sale proceeds. The produce and actual stock of produce lying with him are to be delivered to several parties according to their respective shares as decided by the above civil Court vide its order dated 29.4.72.

Mr. Mukherjee''s contention is that the Magistrate could not have passed an order for disposal of stock in accordance with the shares of the respective parties.

We do not accept this argument of Mr. Mukherjee Under Sub-Section (8) of Section 145 of the Code of Criminal Procedure upon the completion of the inquiry, the Magistrate is required to make such order for the disposal of property or the sale-proceeds thereof as he thinks fit. And the order made in the instant case appears to'' be in conformity with this provision. The Receiver, who is subject to the control of the Magistrate, as laid down in Section 146(2) of the Code, may be given directions for disposal of usufructs of the land received by him during the period of his possession as such Receiver.

We, therefore, overrule all the contentions made on behalf of the Petitioners.

The result is that the Rule is discharged. The order pi" the civil Court dated April 29, 1972, and the order of the Magistrate dated May 12, 1972, are both maintained. All orders made by this Court subsequent to the filing of the petition before this Court, which is now being disposed of, are hereby withdrawn. The Magistrate is directed to amend, alter, modify or abrogate suitably all orders passed by him subsequent to and in pursuance of orders passed by this Court to give full effect to his own order of May 12, 1972. The directions which the Additional District Magistrate had sought for in his Memo. No. 5744 JM dated November 27, 1972, need no longer be given in view of our decision aforesaid. The Magistrate will now dispose of the matters relating to the case in accordance with the observations made in this judgment and in accordance with law.

Criminal Revision Case No. 280 of 1972:

In view of our judgment delivered to-day in Criminal Revision Case No. 279 of 1972 the Rule is discharged. The impugned orders are maintained. All orders made by this Court subsequent to the filing of the revisional petition are withdrawn. The Magistrate is directed to suitably amend, alter, modify or abrogate orders passed by him subsequent to and in pursuance of the orders passed by this Court to give full effect to his own order of May 12, 1972. The Magistrate will now pass such orders as may be necessary for final disposal of the case in accordance with the observations made in the said judgment delivered in Criminal Revision Case No. 279 of 1972 and in accordance with law.

A.K. De J.

I agree.