Hanuman Prasad and Others vs State of Rajasthan

J.R. Chopra, J.—This petition u/s 482. Cr.P.C. arises out of the order of the learned Addl. District Magistrate, Jodhpur dated 11-2-1988 whereby the learned Addl. District Magistrate has ordered that non-petitioner No. 2 Shri Madanlal will not was his floor mill, Saw mill and Kherat Machine which are installed by him in Plot No. 27, Subhas Colony, Jodhpur. However the petitioners were ordered to produce their evidence. It is this order of production of evidence, which is under challenge in this petition.

The facts necessary to be noticed for the disposal of this petition briefly stated are that the petitioners moved an application against non-petitioner No. 2, Shri Madanlal complaining that he has installed a floor mill, Saw Mill and Kherat Machine in Plot No. 27, Subhash Colony, Jodhpur which create nuisance to the habitants of that locality and, therefore, he may be asked to stop the use of these machine as these machine as these machines have not been installed by him after obtaining No Objection Certificates from the Competent Authority. On this application, proceedings u/s 133 Cr.P.C. were initiated. A preliminary order was drawn and the non-petitioner was directed to stop the use of these machines. He was further asked to show cause as to why this order should not be made absolute. This order was passed on 14-1-1988. 18-1-1988 was fixed for filing reply. How ever, nothing could be done by 18-1-1988 because the notices were not served. How ever, on 2-2-1988 Shri R.K. Chhaparwala Advocate field power on behalf of non-petitioner Madanlal. On 9-2-1988 the Additional District Magistrate was on leave and thereafter, the case was listed for orders on 11-2-1988 and on that day, the non-petitioner did not file his reply and the Court felt that as no reply has been filed, the non-petitioner should not cause nuisance till further orders. How ever, the petitioners were asked to produce their evidence. The petitioners have filed this petition challenging the direction of the learned Additional District Magistrate asking them to produce their evidence.

I have heard V.S. Choudhary, the learned Counsel for the petitioners and Mr. S.G. Ojha, the learned Counsel for non-petitioner No. 2. I have carefully gone through the record of the case.

Mr. N.P. Gupta the learned Counsel appearing for non-petitioner No. 2 has submitted that actually, such an order could not have been passed by the learned lower court, He has submitted that when the non-petitioner has failed to submit his reply, the Court had no option to make the order absolute and the order of the court that nuisance will not be caused till further orders is actually an order passed u/s 136, Cr.P.C. According to him, once the preliminary order has been made absolute, the order of the court asking the petitioners to produce the evidence is misuse of the Powers of the Court & deserves to be quashed I am afraid, I cannot agree with this submission of Mr. Gupta. In AIR annual volume 12th, Fourth Edition. The learned Authors V.R. Manohar and W.W. Chitaley have observed while commenting on Section 136 Cr.P.C. that non-appearance cannot be inferred merely from failure to file written statement and the appearance contemplated under sec on 136 Cr.P.C. is the physical appearance of the party against whom the order was made. It was further observed that the non filing of a reply to the show cause notice will not confer jurisdiction on a Magistrate to pass an order u/s 136 Cr.P.C. without asking the party if he denies the existence of a public right. ln this case the non-petitioner has put in appearance and in Advocate has filed power on his behalf & he was present on the date the impugned order dated 11-2-1988 was passed Simply because the party has failed to file the written statement, does not mean that it has not put in appearance or it has failed to show cause before any order can be made absolute. Actually, in this case subsequently a reply has been filed by non-petitioner No. 2 Shri Madanlal on 20-2-1988 denying existence of public right in favour of the petitioners. The order of the court itself show that earlier it passed an order that nuisance should not be continued and the party was asked to show cause to why nuisance be not stopped by 18-1-1988. When on 18-1-1988 no reply was filed, the Court continued that order till further orders and asked the petitioners to produce their evidence.

Mr. S.G. Ojha the learned Counsel for non-petitioner No. 2 has placed reliance on a decision of the Kerala High Court in Krishna Jillai Bhaskaran Nair Vs. Verghese Samuel, Where in it was observed as follows:

If the person against whom the show cause summons is served appears and files objections the Magistrate should not dispose of the case u/s 136 but should take evidence and satisfy himself that order passed by him is reasonable and proper.

In this case the Magistrate thought it proper to held the enquiry and once he has posted the case for enquiry, the evidence has to be led. Simply because no reply has been filed in spite of appearance, it does not mean that it genfiers jurisdiction on the court to make an order absolute u/s 136, Cr.P.C. without asking a party whether it denies the existence of a public right. In this view of the matter, the order of the learned lower court cannot be held to be without jurisdiction and cannot be termed to be an exercise of the jurisdiction which he is not vested in it.

In the result, I find DO force in this petition and it is here by dismissed.