Decided on August 27,1954



- (1.) This is an off-shoot of an order passed by Mr. Justice Somasundaram of the Madras High court on 5-5-1954 in Criminal Revision Case No. 44 of 1953. In order to appreciate the respective contentions of the parties, it is useful to trace the background of this litigation.The first respondent purcahsed properties including those invoked in this Revisiion case under three registered sale deeds of the year 1952, and obtained possession thereof from the vendors. In November 1952, he moved the Additional Sub Magistrate. Guntur, under S. 144, Criminal P. C., for an order preventing the petitioners herein from trespassing on his lands with allegations that while he was alway at Madras the present petitioners trespassed on his land on 9-11-1952, and cut away the crops on a portion of the land and that they were attempting to remove the crops on the remaining portion of the land and prevent him from harvesting the crops belonging to him.On 20-4-1954, orders were passed under S. 144(1) restraining the present petitioners from interefering with the possession of the land of the first respondent, Meanwhile, proceedings under S. 145, Criminal P. c. was initiated before the Additional First Class Magistrate, Guntur, who passed a preliminary order in December 1952. It may be stated that the order under S. 144 (1) was vacated. After hearing the parties and receiving the evidence adduced by them and considering the effect of the evidence, the Magistrate passed an order declaring the possession of the first respondent herein, but in the last paragraph of the order, the learned Magistrate observed as follows: "I am not concerned with the possession of theland prior to 1951. I am concerned with the possession of the land on 9-12-1952 (i.e., the date of the order under S. 145 (1), Criminal P. C.) or within two months next before 9-12-1952".The present petitioners carried the matter in revision to the High Court and when it came up before Justice Somasundaram, the learned Judge remarked that the last sentence quoted above was unintelligible. It is useful to extract that part of the order of the learned Judge which has given rise to this Revision Petition: "The latter part of the sentence I am unable to understand unless the two months period is to be taken into consideration in connection with dispossession. Whether the petitioner in the lower court was dispossessed within that period prior to 9-12-1952, it is not quite clear. Obviously, the Magistrate had in his mind the allegation in the petition of that statement in the police report, that the respondents in the lower court trespassed on the land on 9-11-1952 and continued to be in possession up to the date of the preliminary order. In that case, the proper finding should have been that the respondents dispossessed the petitioner in the lower court on 9-11-1952, which was within two moinths prior to 9-12-1952, and therefore, the petitioner in the lower court should be declared tobe in possession and the respondents should be asked to deliver possession of the property. But the order does not make it quite clear. It is therefore necessary to set aside this order. I direct the case to be reheard by the same Magistrate or some other Magistrate to be appointed by the District Magistrate who should give a definite and distinct finding as to whether the petitioner in the lower court was dispossessed on 9-11-1952, or whether he was not dispossessed at all. If he was not dispossessed and continued to be in possession then there should be a finding that not only on 9-12-1952, but also prior to it he was in possession".
(2.) When the matter went back to the Magistrate, it was contended on behalf of the present petitioners that thelearned Judge ordered a denovo enquiry and therefore the Magistrate should begin the inquiry under S. 145, Criminal P. C., afresh. On the other hand, it is urged on behlaf of the present 1st respondent that the direction of the learned Judge was only to re-hear the arguments and to re-write the judgment. This argument advanced on behalf of the 1st respondent found favour with the Magistrate who expressed the opinion that the order of Justice Somasundaram meant only re-hearing of arguments on the evidence already on recrod and therewas no necessity to allow the parties to adduce evidence afresh. It is this order of the Magistrate that is underrevision. The same contentions as in the lower Court are repeated before me in this Revision Petition.
(3.) The first question, therefore, that arises for consideration is as to the powers of the High Court in exercise of its jurisdiction under s. 439 to order a rehearing or a further enquiry. While it is contended by Mr. Basi Reddy, the learned Counsel for the petitioner, that the powers of the High Court in regard to re-hearing or an enquiry aresh are unfeittered, the position taken by Raghavayya, counsel for the 1st respondent is that the High court hasno power at all to remit the matter to the lower Court for any purpose and if any such power existed it could only be to direct a re-hearing of the arguments based on the evidence already recorded and to re-write the order. I will now proceed to consider which of the two views is correct.(;

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