P L D 1958 Dacca 415 (PLP)

This is a Reference under sections 435/438, Cr. P. C., by the Additional Sessions Judge, Mymensingh, by his letter dated the 9th February 1956, against the order dated the 5th December 1955, of Mr. M. Rafique, Magistrate, 1st Class, in a proceeding under section 145, Cr. P. C., declaring one Sailendra Nath Chakraborty to be entitled to possession of the dis puted lands until evicted therefrom in due course of law, and forbidding all disturbances of such possession until such eviction, and directing the Receiver to make over possession thereof to him.

1. It is recommended that the aforesaid orders be set aside for reasons stated in the letter of Reference.

3. The facts, briefly stated, are that proceedings under sec tion 145, Cr. P. C., were drawn up on an application filed on the 23rd February 1954, by one Aposh Ali, the first party (now opposite party) (sic), a peon of the father of the said Sailendra Nath Chakraborty, against the second parties (now petitioners) (sic), Amjad Ali Bhuiya and others, stating, inter alia, that he was doing so on behalf of Sailendra Nath Chakraborty. Sailendra Nath Chakraborty never appeared before the learned Magistrate, nor was he made a party in the proceedings, nor was any notice served on him, nor the power filed by the said Aposh Ali did show that he was executing it on behalf of Sailendra Nath Chakraborty. Written statements were filed on behalf of the parties, and they adduced oral and documentary evidence. Aposh Ali said in his written statement that he was filing it on behalf of Sailendra Nath Chakraborty. He said the same, as already stated, in the petition filed by him on the 23rd February 1954, on the basis whereof the proceedings were started.

4. In his final order, the learned Magistrate declared Sailendra Nath Chakraborty to be entitled to possession of the disputed lands.

5. The learned Additional Sessions Judge in his letter of Refe rence says as follows : "The order of the learned Magistrate in favour of Sailendra Nath Chakraborty, who is not a party, nor his agent or Manager is a party, is illegal." In support of this law, he relied on the case of Magoji Row and others‑Party No. 1 Petitioners v. Subbarayulu Naidu and others‑Party No. 2 Respondents (18 Cr. L J 44). It is a Single Judge decision of the Madras High Court. It was held by His Lordship at page 45 that sec tion 145, Cr. P. C., was not intended to apply to servants in the absence of their masters, and any order made in such circum stances, was without jurisdiction. Another case; relied on by the learned Additional Sessions Judge, is the case of Pearelal v. Emperor (36 Cr. L J 114). This is a Single Judge decision of the Allahabad High Court. Both the parties in this case represented their masters as agents, but the possession of the disputed land was given to the master of one of the agents: In these circumstances, His Lordships at page 115 observed as follows "It is obvious that a procedure of this kind deprives an order under section 145 of its value." and quashed the proceedings. He also relied on the case of Ram Chandra Das v. Monhur Roy (I L R 21 Cal. 29). It is a Division Bench case of the Calcutta High Court. It was contended in that case that the second party having admitted to be mere servants, and having, or pretending to have no claim, right, or possession of their own over the said lands, could not be made parties to a proceeding under section 145, Cr. P. C., nor could any order be made thereunder against them, and that any such order made was illegal. Their Lordships at page 32 held that the words `parties concerned' included persons who were interested in the dispute and persons who claimed a right to the property. This was one of the grounds taken in that case. Their Lordships set aside the order.

6. The next case relied on by the learned Additional Sessions Judge is reported in I L R 28 Cal.

446. To my mind, this is not applicable to the present case.

7. Learned Advocate Mr. R. C. Talukdar appeared in support of the Reference, and learned Advocate Mr. Ramani Kanta Bhattacharjee appeared in opposition thereto.

8. Mr. Talukdar supported the letter of Reference on the grounds mentioned therein, and also relied on the aforesaid decisions and submitted that the Reference should be accepted.

9. Mr. Bhattacharjee submitted that although the proceedings did not mention the name of Sailendra Nath Chakraborty, nor was any notice served on him, nor did the power filed by his peon Aposh make, any mention of the fact that he was executing the same on behalf of Sailendra Nath Chakraborty, but the facts remained, that the written statement and the documents were filed on the latter's behalf and that Amjad Ali, one of the second party, mentioned him as the first party in his own written statement. He contended that in the circumstances all concerned knew that Sailendra Natk Chakraborty was the real man, and no ground with regard to the defect of parties having been taken by the second party man, Amjad Ali, in his written statement, the proceedings could not be vitiated. He further contended that all the decisions relied on by the learned Additional Sessions Judge and Mr. Talukdar showed that ` the order passed under section 145, Cr. P. C. would not have a binding effect on a person who is not a party, and that in the present case no order having been passed against Sailendra Nath Chakraborty, no question of the order having a binding effect arises so far as he is concerned.

10. I am unable to appreciate this contention. The proposition laid down in the aforesaid decisions is based on the principle that for the effective prevention of a breach of the peace, all concerned in the dispute and likely to cause breach of the peace should be made parties to the proceedings irres pective of the question of ultimate decision which might there after be arrived at the final stage with regard to the possession in favour of one party or the other (as in 145), or none (as in 146).

11. Mr. Bhattacharjee also cited the Full Bench decision in the case of Dhondhai Singh v. Follet (I L R 31 Cal. 48). The question that arose in that case was whether there was jurisdiction under section 145, Cr. P. C., to make an order in favour of a manager in possession of the disputed land on behalf of his proprietress, who was then residing in England. Their Lordships held that the manager being in actual possession of the land, and the proprietress being beyond the Appellate Jurisdiction of the High Court at a place where no process could be served, in such circumstances an order made in favour of the manager directing him to be retained in possession could not be said to be without jurisdiction. His Lordship Banerjee, J., at page 55, held as follows : "The posses sion of an agent, to, or a manager for, an absentee proprietor is not in any way ‑similar to that of a servant or a bailiff or any person occupying land or buildings in a merely ministerial character." I do not think this decision can be of any help to Mr. Bhattacharjee, and it requires no comment. It was never the case of Aposh Ali that he was a manager in actual possession of the land, and that Sailendra Nath Chakra borty was residing beyond the Appellate Jurisdiction of this High Court.

12. In view of the principle enunciated in the aforesaid decisions, and in view of the fact that it was Sailendra Nath Chakraborty who had to do anything with the disputed land, and not Aposh Ali, the peon of his father, who had to do nothing with the land, the order passed in this case declaring Sailendra Nath Chakraborty to be entitled to possession when he was neither a party to the proceedings nor any notice was served on him is bad law.

13. For the aforesaid reasons, the Reference is accepted, and the order passed by the learned Magistrate declaring Sailendra Nath Chakraborty to be entitled to possession of the disputed lands, and directing the Receiver to hand over the same to him; are set aside. It will, however, be open to him to start fresh proceedings, if he feels that there is still apprehension of a breach of the peace, and if any such occasion arises for starting a proceeding under section 145, Cr. P. C., he should place on record all the necessary parties including Sailendra Nath Chakraborty so that the dispute may be effectively settled and the breach of the peace prevented. Z. A. S. Reference accepted.