1981 P Cr (PLP)

The petitioners filed an application under section 145, Cr. P. C. against Allah Ditta respondent in which they alleged that the respondent was their tenant in the property at Mohallah Karnalpura near Wahdat Colony, Lahore. They filed ejectment petition against him which was allowed by the Rent Controller on 9th July; 1975. On 30th October. 1975, the petitioners obtained possession of the property with the help of the bailiff and put their own lock. It is alleged that on the next day, the respondent broke open the lock and forcibly reoccupied the possession. The Magistrate, who took cognizance of this application, issued notice to the respondent. The respondent denied the allegation of trespass and submitted that the father of the petitioners sold the property for a consideration of Rs. 7,500 out of which Rs. 3,000 had been paid. He' produced Faqir Hussain, Allah Ditta and Piran Ditta as his witnesses. The trial Magistrate by his order dated 31stJuly, 1977. convicted Allah Ditta respondent under section 448, P. P. C. and sentenced him to 6 months R. I. and also ordered under section 522, Cr. P. C. that the possession be delivered to the petitioners: The respondent filed appeal against the aforesaid order. The Addi tional Sessions Judge by his judgment dated 27thFebruary, 1978, set aside the conviction and sentence of the appellant. Thereafter, this petition was filed, leave was granted to examine whether the trial Court was competent in law to convict the respondent under section 448, P. P. C. and order the restoration of possession under section 522, Cr. P. C. on an application under section 145, Cr. P. C. After the grant of appeal, this petition was converted into an appeal and it shall be disposed of as such.

3. Learned counsel for the appellants contended that the trial Magistrate acted in accordance with law, his order, as such, was legal and the appellate Court erred in law in setting it aside. It was argued that no doubt the heading of the application filed by the petitioners was nevertheless, if the trial Magistrate after considering the entire case and recording evidence came to the conclusion that the respondent was guilty under section 448, P. P. C. there was no legal bar for the trial Magistrate to convict him under the aforesaid provision of law and while doing so he was also competent to order the restoration of possession to the petitioners.

4. Learned counsel for the respondent contended that the application given by the petitioners was under section 145, Cr. P. C., it had to be disposed of as such and the Magistrate had no power in law to convert it into a complaint under section 448, P. P. C.

5. I have considered the submissions of the learned counsel for r parties and have also perused the application. The application was section 145, Cr. P. C. The prayer made in that was Section 145, Cr. P. C. deals with the procedure where dispute con cerning land etc., is likely to cause breach of peace. Subsection (4) authorizes the Magistrate to inquire into the factum of possession Under this subsection the Magistrate is authorized to decide which of the parties was at the date of the order in possession of the property. The proviso to subsection is also very important. The section is self‑contained and self‑explanatory. The Magistrate as such, had to confine himself to this provision only. No doubt. his order to the extent of conviction of the respondent under section 448, P.. P. C. was set aside but even the appellate Court lost sight of the fact as to whether the application moved by the petitioners had been disposed of in accordance with law or not. I am, therefore, of the view that the order of the trial Magistrate as well as that of the learned appellate Court were not in accordance with law. Both the orders are accordingly set aside. The Magistrate is directed to dispose of the application moved by the petitioners in accordance with the provision of section 145, Cr. P. C. There is no deed to record fresh evidence. The matter be decided within two months under intimation to the Registrar of this Court on the evidence already recorded by the Magistrate. The appeal is disposed of accordingly. Appeal allowed.