Manjit Kaur vs Gurnek Singh and Others

P. N. Shinghal, J.—This revision petition of Smt Manjit Kaur is directed against the order of learned Additional Sessions Judge. Sri Ganganagar. dated July 30, 1971, upholding the order of Sub-Divisional Magistrate, Karanpur, dated July 7, 1969, in proceedings u/s 145, Criminal Procedure Code.

It is not disputed, and is in fact admitted by both the learned Counsel, that the affidavits, which were filed in this case in the court of the learned Sub-Divisional Magistrate, did not conform to the requirement of Order XIX, Rule 3, Civil Procedure Code. It has, therefore been argued by the learned Counsel for the petitioner that the affidavits could not form the basis of the impugned order which must therefore be set aside as being contrary to the law. The learned Counsel has placed reliance on the decisions of this Court in Pritam Singh Vs. Ranjit Singh, and Gopi v. Man Mohan 1974 WLN (UC) 131 to support his argument. On the other hand, it has been argued by Mr. Purohit, on behalf of the non-petitioners, that Order XIX. Rule 3. CPC could not apply to the affidavits contemplated u/s 145(4) of the Code of Criminal Procedure and that the three judgments of this Court , referred to above, are not really in point because this legal aspect was not urged for consideration in those cases.

It is true that my attention has not been invited to any provision in the Code of Criminal Procedure which could be said to prescribe what has been laid down in Rule 3 (1) of Order XIX of the CPC in regard to the verification of affidavits. But there is at least one obvious reason for taking the view that the affidavits referred to in Sub-section (4) of Section 145, Criminal Procedure Code should conform to the requirement of Order XIX, Rule 3 (1), Civil Procedure Code. Section 146(1) of the Code of Criminal Procedure provides that if a Magistrate is of opinion that none of the parties was in possession on the relevant date or is unable to decide which of them was then in possession of the subject-matter of dispute, he may, inter alia, draw up a statement of facts of the case and forward the record of the proceedings to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject-matter of dispute at the date of the order as explained in Sub-section (4) of Section 145. Then there is the further requirement of Subsection (1A) of Section 146 as follows.�

(1A) On receipt of any such reference the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of such evidence and after hearing the parties, decide the question of possession so referred to It.

It is therefore the direction of the law that on receipt of the reference under Sub-section (1) of Section 146, Criminal Procedure Code, the Civil'' Court shall, inter alia, "peruse the evidence on record" and "take such further evidence as may be produced by the parties." The Sub-section thus requires that the civil court shall consider the "effect of such evidence." That Court may, therefore, if it so desires, take further evidence on affidavits and it follows that, in doing so, it should take only those affidavits into consideration which fulfil the requirements of Order XIX, Rule 3, Civil Procedure Code. If this is the intention of the law in regard to the affidavits taken by the Civil Court by way of "further evidence" under Sub-section (1A) of Section 146. Criminal Procedure Code, it would be reasonable to take the view that the earlier affidavits (referred to in subsection (4) of Section 145. Criminal Procedure Code) should also conform to the requirement of Rule 3. of Order XIX Civil Procedure Code. I am therefore in respectful agreement with the view which has been taken by this Court in the three cases cited by Mr. Datt.

As the affidavits, which are on the record, do not admittedly conform to the requirements of Order XIX, Rule 3, CPC in so far as the endorsements of verification are concerned, they are improper affidavits and could not form the basis of the impugned order of the learned Sub-Divisional Magistrate. The revision petition is allowed, the orders of the courts below are set aside, and the case is remitted to the court of Sub-Divisional Magistrate, Karanpur, for fresh disposal after a proper enquiry as to possession.