1966 (9) TMI 160 - HC - Indian Laws

Court Validates Magistrate's Order Sans Notice, Affirms Possession Date, and Stayed Execution

Chandi Kumar Sarkar Versus Probhat Kumar Biswas

The court upheld the legality of the Magistrate's order passed without notice to parties, citing the limited role of the Magistrate under Section 146 of ... - Issues Involved:1. Legality of the Magistrate's order without notice to parties.2. Correctness of the civil court's finding regarding the relevant date for possession.3. Inclusion of a party not part of the preliminary order under Section 145.4. Absence of specific findings on possession of individual disputed plots.Issue-wise Detailed Analysis:1. Legality of the Magistrate's Order Without Notice to Parties:The petitioner argued that the Magistrate's final order was invalid as it was passed without serving notice to the parties, thereby denying natural justice. The court examined the principle of natural justice, which demands that a party should be heard before an adverse decision is made. However, it was concluded that this principle does not apply in the context of Section 146 of the Code. The Magistrate's role under Sub-section (1B) of Section 146 is limited to disposing of the proceeding in conformity with the civil court's decision, without any discretion to vary the finding. The parties had already been heard twice, once by the Magistrate and once by the civil court. Therefore, the court held that the Magistrate was not required to hear the parties again before passing the final order.2. Correctness of the Civil Court's Finding Regarding the Relevant Date for Possession:The petitioner contended that the civil court erred by using the date of the filing of the application under Section 144 (7-1-1964) instead of the date of the preliminary order under Section 145 (17-2-1964) to determine possession. The court found that the civil court's reference to 7-1-1964 was merely a factual statement about the filing date and not the basis for determining possession. The relevant date for possession was indeed 17-2-1964, and the civil court's finding was based on this date. The court also noted that even if the civil court had erred, the finding could not be challenged under Section 435 or Section 439 of the Code, as per Sub-section (1D) of Section 146. The proper recourse would be a regular suit in the appropriate forum.3. Inclusion of a Party Not Part of the Preliminary Order Under Section 145:The petitioner argued that the civil court's decision was invalid as it included opposite party No. 4 (Life Insurance Corporation of India), who was not part of the preliminary order under Section 145. The court noted that opposite party No. 4 was brought on record on 4-4-1964, and the proceedings continued with their participation. Section 145 requires all parties concerned in the dispute to be part of the proceeding. The court held that the inclusion of opposite party No. 4 was valid, as they were given the opportunity to present their case, and the preliminary order could be treated as modified to include them.4. Absence of Specific Findings on Possession of Individual Disputed Plots:The petitioner contended that the civil court's finding was invalid as it did not specify which of the opposite parties was in possession of which portion of the disputed property. The court found that the civil court's task was to determine whether the first party or the second party members were in possession of the disputed plots. The civil court found that the first party had no possession and that the second party members were in possession. The court held that the civil court was not required to make separate findings for each plot, and the joint possession finding was sufficient given the circumstances.Conclusion:The court concluded that there were no grounds to interfere with the Magistrate's order. The Rule was discharged, and the operation of the order was stayed for two weeks upon verbal prayer. The final order was to be stayed until 4th October 1966, with no further extensions.