Arunachala Goundan And Others v. Chinnadorai Alias Ramalinga Goundar

Arunachala Goundan And Others v. Chinnadorai Alias Ramalinga Goundar

(High Court Of Judicature At Madras)

Criminal Revision No. 582 Of 1944 & Criminal Revision No. 553 Of 1944 | 08-11-1944

(Prayer: Petition (disposed of on 8-11-1944) under Ss. 435 and 439 Crl. P.C., 1898, praying the High Court to revise the order of the Court of the Additional First Class Magistrate of Vellore dated 28-2-1944 and made in M.C. No. 24 of 1943.)

This case arises out of an order made under S. 145 of the Criminal Procedure Code by the Additional First Class Magistrate of Vellore. In his petition praying that the Magistrate should take action under S. 145, the respondent who may be referred to as the A party stated that he had been dispossessed by the B party on the 20th July 19

43. The Magistrate, who declared in his final order that the A party was entitled to possession, issued a preliminary order under S. 145(1) of the Crl. P.C. on the 19th November 19

43. Under Sub-Ss. 4 and 6 of S. 145 of the Crl. P.C., the Magistrate is bound to issue an order declaring the party which he finds to have been in possession on the date of the preliminary order to be entitled to remain in possession until evicted in due course of law, provided that, if the other party has been wrongfully dispossessed within two months of the preliminary order he may treat that party as in possession and issue the declaration in its favour. In this case, therefore, the B party were in possession when the petitioner filed his petition, namely, on the 6th September 1943, and the petitioner on his own admission had been out of possession for more than two months before the preliminary order was made on the 19th November 19

43. It would appear, therefore, that the Magistrate in this case had no alternative but to make an order declaring that the B party was entitled to possession until evicted in due course of law.

An argument has been pressed on me that the first proviso to Cl. 4, S. 145, need not be construed strictly, and that the period of two months may in proper circumstances be extended in order that substantial justice shall be done. In support of this contention I have been referred to a decision of Devadoss J. reported in Srinivasa Reddy v. Dasaratha Rama Reddy (52 Mad. 66 [LQ/MadHC/1928/98] = 28 L.W. 504). In so far as that decision tends to support the contention advanced for the petitioner, I am unable to agree with it, and the learned Public Prosecutor has referred me to a decision to the contrary effect of Jackson J. reported in Pichai Moopan v. Narayana Swami Moopan (1931 Mad. Cr. C. 168). This decision, in my opinion, gives effect to the plain words of the statute, namely, that the person dispossessed can be treated as in possession on the date of the preliminary order only if he had been dispossessed within two months of that date. In the present case the B party had been in possession for four months when the preliminary order was passed and the Magistrate was not empowered to treat the A party as if they had been in possession at that date. The order of the learned Magistrate mu st therefore be set aside and a declaration will issue that the B party, namely, the petitioners in this criminal revision petition, are entitled to possession until evicted in due course of law.

Advocate List
Bench
  • HON'BLE MR. JUSTICE HAPPELL
Eq Citations
  • (1945) 1 MLJ 210
  • 1945 MWN 109
  • AIR 1945 MAD 216
  • LQ/MadHC/1944/275
Head Note