Jogendra Nath Rai vs Abu Shaikh and others

The first question in this case is whether the second party had been served with a notice of the proceedings. They stated by an affidavit that they were not. There is no counter affidavit, nor has the District Magistrate examined the serving peon on this question. He has simply accepted his written return of service. We think this is very unsatisfactory and it is in the last degree improbable that a party under sec. 145 proceedings would deliberately absent himself and allow an ex parte order to be passed against him. We find also that the District Magistrate has dealt with the case in a very summary manner, examining only the daffadar who was apparently not a witness of either of the parties such as a Court is required to examine by cl. (4) of sec. 145. We make the rule absolute and direct that the order of the District Magistrate giving possession to the first party under sec. 145 be set aside, and it will be open to him to proceed further in the matter, if he should think fit.