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TMI Blog1966 (9) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ew up proceeding under Section 145 of the Code. That was on February 17, 1964. After the parties had filed written statements, documents and affidavits the learned Magistrate considered the matter and came to the finding that he was unable to decide as to which of the parties was in possession of the subject of the dispute. Thereupon he drew up a statement of the facts of the case and forwarded the record of the proceeding to the civil court under Sub-section (1) of Section 146 3. The learned munsif of Sealdah on receipt of the reference examined witnesses and decided the question of possession in favour of the second party and the Magistrate on receipt of the finding of the civil Court disposed of the proceeding in conformity with that decision as required under Sub-section (1B) of Section 146 it is the order of the learned Magistrate disposing of the proceeding which is the subject matter of the present Rule. 4. Mr. Mukherjee appearing in support of the Rule raised 4 objections against the legality of the order passed in the proceeding and they are-- 1. That the order passed by the learned Magistrate is bad in law inasmuch as no notice was served on the parties before re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Saritul-la ILR 1888 Cal 608The case held that though Section 437 Cr P. Code (now Section 436 Cr. P. C.) does not require any notice to be served on the accused, as a matter of discretion it is proper that such notice be given. Another case referred to is that of Ajodhyalal v. Paryag Narain 7 CWN 114 which also held as above in connection with a proceeding under Section 528 Cr. P. C. which does not provide for notice to the opposite party before disposing of the application. 8. The principle enunciated in the above cases and certain other cases to the same effect which were also referred to by Mr. Mukherjee is the very wellknown principle that before a party is adversely affected by an order that may be passed, natural justice as well as judicial exercise of discretion would demand that he be heard and that any order made against a party without giving him an opportunity of being heard is bad in law. So far however as the present proceeding is concerned that principle in my opinion would not apply in view of the very scheme of Section 146 of the Code. 9. Under that section if the learned Magistrate is unable to decide the question of possession on a consideration of the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revision. 10. The second contention raised in the case relates to the correctness of the finding of the civil court and this contention rests on the requirement of Sub-section (4) of Section 145 of the Code that the question of possession is to be decided with reference to the date of the order passed under Sub-section (1) of the section. There is no question that the relevant date with reference to which the question of possession is to be decided is the date of the preliminary order passed in the proceeding under Section 145 subject to the second proviso to Sub-section (4) of the section according to which a party dispossessed from the disputed land within two months of the date of the order is to treated as the party in possession for the purpose of the proceeding. 11. It is argued on behalf of the petitioner that although the preliminary order in the proceeding under Section 145 Cr. P.C. In this case was made on 17-2-1964, the learned munsif has taken the date of the filing of the application under Section 144 which is 7-1-1964 as the relevant date for the purpose of a finding as to possession by him. The basis for his argument is the statement appearing on page 2 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the High Court can interfere with the finding of the civil court if they are in flagrant violation of the well recognised principles of law, in the latter case also it was held that if the finding of the civil court has been acted upon by the Magistrate and an order passed in conformity with that order it can be challenged under Section 435 or Section 439 of the Code. For the purpose of this decision the court relied on the Full Bench decision referred to above. 14. This Court, however, has disfavored the view taken by the Patna High Court, in the unreported Bench decision in the case Radha Govind Pal v Nalini Bala Mondal which was decided on 16-9-1964 (Criminal Revn No. 311 of 1963) (Cal) The learned Judges in that case considered the Full Bench decision of the Patna High Court mentioned above, but found themselves unable to agree therewith They reviewed the Allahabad decision in the case Taashuq Hussain v State AIR1959All568 the decision of the Madras High Court in the case Muthu Sethurayar v Lourduswami Odayar AIR1959Mad111 and to a single Bench decision of this Court in the case Ramnarayan v. Biswanath AIR1959Cal366 and held that the finding of the civil court cannot be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that another party not named in the application is concerned in the dispute I see no reason why that party cannot be impleaded in the proceeding and if that party is given the opportunity to out in written statements and documents and affidavits in support of his claim and the requirements of the law are satisfied so far as it is concerned the preliminary order may be treated as having been modified so far a? that party is concerned. In my view the order of the Magistrate bringing opposite party No 4 on record make? him a party to the proceeding from the date of the preliminary order. It appears besides from the record that opposite party No. 1 Probhat Kumar Biswas looked after the disputed land on behalf of the Life Insurance Corporation of India although he is an officer of the firm Ramani Mohan Industries Ltd whereof opposite party No. 2 was the Managing Director and opposite party No. 3 was an employee. Breach of peace if any is apprehended neither from a Corporation nor a limited company but from person who might be connected therewith. If, therefore, opposite party No. 1 who was caretaker of the Life Insurance Corporation of India so far as the disputed property is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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