Peria Subba Goundan vs Sinna Subbayya Goundan and Another

Venkatasubba Rao, J.—This dispute is concerning Immovable property and action was taken u/s 145 Criminal Procedure Code. The

petitioner claimed to be in possession of the property and the rival claimant was the seventh counter petitioner. The Magistrate held an enquiry, and

under Clause 6 of Section 145 issued an order declaring the respondent to be entitled to possession until evicted in due course of law. The

Magistrate has written no judgment and has recorded no findings. The order is short and is in the following terms : ""7th Counter-petitioner is

declared to be put in possession of the land described hereunder. Fill up schedule form accordingly.

Magistrates are apparently supplied with printed forms prepared under the Code for ministerial purposes to suit the requirements of Section

145, and in this instance, one such form was issued. It is in truth, a tamil rendering of form No. 22 of Schedule V of the Criminal Procedure Code.

The Magistrate has purported to act under Clause 6, but it is obvious that his order contravenes its provisions. Under that clause it is obligatory

upon him to decide which of the parties was in possession, and Clause 4 enacts that the finding is to relate to actual possession on the date of the

preliminary order. Clause 6 runs thus : ""If the magistrate decides that one of the parties was in such possession of the said subject, he shall issue an

order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such

possession until such eviction."" The Magistrate issued an order declaring the respondent to be entitled to possession without deciding that the

respondent was on the date of the preliminary order, in actual possession.

It was contended for the petitioner that the Magistrate had no jurisdiction to make such a declaration as the declaration was not preceded by,

and did not follow from, a decision which complied with the provisions of the section. In other words it was that the Magistrate ignored those

provisions of the section which rendered a judicial determination necessary and that he merely contented himself with issuing a formal and

ministerial order. Mr. Panchapagesa Sastriar, on the other hand for the respondent very strenuously contended that it should be assumed that the

Magistrate arrived at a mental decision, though he failed to record it, and that the declaration in his order necessarily involved a decision in regard

to actual possession. In the absence of a judgment and in the absence of findings, he urged, that the High Court should assume that the Magistrate

did direct his mind to the question at issue and he decided, as it was his duty to decide, that the party in whose favour the order was made was in

actual possession on the date of the preliminary order.

Even in cases where Magistrates have written judgments their decisions have often been found to be erroneous on account of the fact that,

whereas, under the section, they are to determine the question of possession with reference to the date of the preliminary order, the adjudications

have had reference to a date either anterior to that point of time or subsequent to it. The argument of the learned Vakil comes to this: When there is

a judgment before you there are materials on which you can make up your mind and come to the conclusion that the magistrate is wrong : but,

when there is no judgment at all, we must assume that the magistrate applied his mind to the question and discharged the duty incumbent upon him

under the section. The order of a magistrate, who records reasons or gives finding, is liable to be set aside, but the High Court is powerless in

regard to a magistrate who dispenses with a judgment.

When this petition was taken up sometime before the recess, the Public Prosecutor, who happened to be in Court, requested that he should be

permitted to appear and state his view of the case as it was apparent that, in the case of the magistrate in question, he used printed forms referred

to above and did not feel that he was under a necessity to write judgments. On behalf of the Public Prosecutor it is now stated that he does not

support the order under consideration.

In Bhuban Chandra Hazra v. Nibaran Chandra santra ILR (1921) C. 187 , the High Court set aside an order of the Magistrate on the ground

that it was impossible to determine whether the Magistrate, in making his final order, acted within or without his jurisdiction. In the words of the

learned Judges who decided that case, the Magistrate gave a statement of reasons which were of a stereotyped nature applicable to any and every

case. It was held that the High Court had power to interfere with the order which was accordingly set aside. It is unnecessary for me to rest my

judgment on the ground that the Magistrate has not written a judgment, because in the present case the Magistrate has failed to decide as to which

party was in possession on the date of the preliminary order and there is abundant authority for the position that the High Court can in such

circumstances interfere on the ground that the Magistrate has acted without jurisdiction. In Thumbalabed Hampanna v. Parisi Gangamma 16

Cr.L.J. 239 , the learned Judge observes ""We must hold that he failed to exercise his jurisdiction as he has failed to give a finding as required by

law regarding possession of both or either of the counter-petitioners on the date of the order."" The same view was taken in Marudanayakam Pillai

v. Syed Muhammad Rowther 7 Cr.L.J. 450 and in Agra Bank v. Leishman (1894) ILR M. 41 .

As I observed, in the view I have taken it is unnecessary to go into the wider question as regards my power to interfere with the order of a

magistrate on the ground that there is no judgment in the case at all; but I would add that the practice, if it exists, of not writing judgments should be

discouraged. I have however been told that this is the first instance that has come to the notice of this Court where the magistrate has had recourse

to a printed form which takes the place of a judgment in the case.

In the circumstances, I think, the proper order to make is an order similar to the one made in ILR 49 Cal. 187 and accordingly I set aside the

order of the magistrate and direct him to re-hear the parties and, after recording a statement of reasons for his decision, to dispose of the matter in

accordance with the law.