1982K44 (PLP)

This application under section 561‑A, Cr. 'P. C. read with section 439, Cr. P. C.; has been preferred chrllenging the order dated 24‑5‑1980 of the learned III Additional Sessions Judge, Hyderabad, whereby the order dated 12‑6‑1979 of the learned Resident Magistrate Tando Bagho at Hyderabad has been setaside considering it not sustainable under the circumstances of the case.

2. The brief facts of the case are that the applicant runs a business of limestone in Shop No. 404 at Tando Wali Muhammad, Hyderabad, since March, 1977. The respondent No. 2 was aggrieved by such business of the applicant. According to him such business was injurious to his health as well as to health of his family. He therefore approached the District Magistrate, Hyderabad, to get the nuisance removed. This application was forwarded to the Resident Magistrate Tando Bagho who after appointing Jury on his application passed the order under section 139(2), Cr. P. C. The respondent No. 2 challenged the order of the Resident Magistrate by way of a revision application which was allowed by the impugned, orders.

3. The learned counsel for the applicant contends that the respondent No. 2 has mala fidely approached the District Magistrate as the applicant was running the business since 1977 and no complaint whatsoever was made from any resident of the locality. It has also been contended by him that he filed a Civil Suit No. 239/78 which was decreed ex parte restraining the defendants from interfering with the business of applicant who was plaintiff in the Civil Suit except in accordance with law. It has been lastly contended that the order of Additional District & Sessions Judge, was illegal. He has placed his reliance on 1970 P Cr. L J 210 and 1977 P Cr. L J 192 and 275.

4. Mr. Syed Sarfaraz Ahmed and A. A. Muhammadally, Assistant Advocate‑General who have appeared on different dates in this matter have on the other hand contended that there is no illegality whatsoever in the order of the learned Additional District & Sessions Judge, Hyderabad as he enjoyed a concurrent jurisdiction with this Court under section 439‑A, Cr. P. C. It has also been pointed by them that in view of section 439‑B this Court shall have no jurisdiction to entertain any proceedings in revision in respect of an order made by the learned Sessions Judge, under section 439‑A, Cr. P. C. The learned Additional District & Sessions Judge for all purposes under section 438, Cr. P. C. is the Sessions Judge and the jurisdiction to pass such orders has been vested in him by virtue of section 439, Cr. P. C. They relied upon :‑ (i) 1978 P Cr. L J 706; (ii) P L D 1978 Lab. 287; (iii) P L D 1963 S C 237; and. ' , (iv) 1969 S C M R 325

5. I have heard the learned counsel for the applicant as well as State. I have also gone through the record and the citations referred to by them There is no doubt that orders passed by the Sessions Judge under section 439‑A, Cr. P. C., cannot be examined by this Court under a revision power as provided by section 439(4)(b), Cr. P. C. There is nothing wrong with the impugned order of the learned Additional District & Session Judge. The decree of the civil Court restrained the defendants from interfering with the applicant except in accordance with law. The respondent No. 2 therefore approached the District . Magistrate for action under section 133, Cr: P. C., considering the business of limestone in the residential locality as nuisance being injurious to him as well as to his family. After considering all the aspects of the case I am of the view that the order of the learned Additional Sessions Judge, is proper, legal and is therefore maintained accordingly. I do not find any force in this application which is hereby dismissed. s. G. D. Appeal dismissed.