Mukunda Lal Dey and others vs Haribole Saha

We are asked in this case to set side the order of the Deputy Magistrate of Dacca made under sec. 133, Cr. P. C., in which after having come to the conclusion that the Defendants had raised a bond fide dispute as to title, he says, " I must stay proceedings and leave it to the Defendants to establish their right in the Civil Court. If they fail to institute a suit within 15 days, or if they fail to establish their claims in the Civil Court, I shall proceed with the trial of the case." In his explanation submitted to the District Magistrate, he relies upon the case of Luckhee Narain Banerjee v. Ram Kumar Mukherjee I. L. R. 15 Cal. 564 in support of the order he has made.

The learned vakil for the Petitioners contends that the order of the Deputy Magistrate is wrong and ought to be set aside, because he has not come to any finding that the way in question is a public way.

We are of opinion that this contention ought to prevail. Sec. 133 authorizes a Magistrate to take action only when he is satisfied, amongst other things, that the way in respect of which the obstruction is complained of, is one which is or may be lawfully used by the public and sec. 137 enacts that if the party against whom a conditional order is made under sec. 133 appears to show cause against the order, the Magistrate shall take evidence in the matter.

Now, in the present case, upon the conditional order being made, the Petitioners appeared and showed cause, urging, amongst other things, that the way was not a public way. It became, therefore, necessary for the Magistrate, before he could proceed any further, to take evidence upon the question as to whether the way was a public way or not, and to come to a finding that it was a public way. As it is, in the present case he has not come to any finding to that effect. He merely states what he calls the case for the prosecution, which is, that the way is a public way, and also the case for the defence, which is, that it is not a public way. That being so, the case, in our opinion, did not reach that stage at which the question of the bona fides of the defence arose for consideration.

As we understand sec. 133 and the sections following it, as interpreted in the cases of Luckee Narain Banerjee v. Ram Kumar Mukherjee I. L. R. 15 Cal. 564. and Queen-Empress v. Bissessur Sahu I. L. R. 17 Cal. 562, the Magistrate has to determine two questions when the parties against whom the conditional order under sec. 133 has been made, appears, and, in showing cause, raises the question of title. The Magistrate has, in the first place, to find whether the obstruction complained of is in a public way; and in the second place, he has to find, if his finding on the first question be in the affirmative, whether the dispute as to title is a bond fide dispute. If he finds that it is not a bona fide dispute, he has to proceed with the case and make such order as the circumstances of the case require. If he finds that the dispute is a bona fide one, it is then only that the question whether the Defendant should be required to institute a civil suit within a reasonable time, would arise; otherwise not.

In the present case, the first question not having been determined in favour of the existence of any public right of way, the second question did not arise, and the learned Deputy Magistrate was wrong in making the order he has made.

We may add, that we reserve our opinion upon the question whether upon its being found that the dispute raised as to title is bond fide, the proceeding should not be at once unconditionally stayed or whether it should be stayed only conditionally upon the Defendant instituting a civil suit within a reasonable time. The result is that the order complained of in this case must be set aside.