HIGH COURT OF RAJASTHAN
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K.S.LODHA, J. -
(1.)IN this revision, a very short question has been agitated by the learned Counsel for the petitioner and in that view, the facts of the case need not be stated at any length. It will be sufficient to state that the present petitioner Galba had made a report to the police that the non -petitioner No. 1 had purchased 1/3rd undivided share of the petitioner's brother Sawiya from the land which jointly belonged to the petitioner Galba his brother Sawiya and a third brother Kheema. However, the non -petitioner was interfering with the possession of the petitioner on the part of the land on which the petitioner was in possession by way of conveyance. He, therefore, claimed that the non -petitioner may be restrained from causing any breach of peace in respect of the possession of the complainant. The police after inquiry, put up the matter before the learned Sub -Divisional Magistrate, Jalore, for taking proceedings against the parties under Section 145 Cr.P.C. The learned, Magistrate drew a preliminary order and at the same time attached the land in dispute. The proceedings under Section 145 then proceeded. The case was fixed for the petitioner's evidence on 16 -7 -84. However, no witness was present on that day. It appears that a request was made that the matter may be kept for site inspection and the evidence of the parties may be taken there at the site itself. The court then fixed 24 -7 -84 for the site inspection as well as for recording the evidence of both the parties at the spot. It, however, further appears that on 24 -7 -84, the learned Magistrate could not go to the spot as his vehicle was out of order. The matter was then taken up in the court itself but none of the parties was present on that day in the court. The learned Magistrate directed that the matter may be fixed for 25 -7 -84 to be taken up at the spot. On 25 -7 -84, the learned Magistrate went to the spot and prepared a site inspection note. He also recorded the evidence of the witnesses of party No. 1, who is the non -petitioner and further observed that no witness on behalf of party No. 2, the present petitioner was present. The matter was fixed for orders on 28 -7 -84 and on 28 -7 -84, the order in question was passed that there was no likelihood of any breach of peace as there is no dispute between the parties about the attached land. He also directed that the receiver should hand over possession of the land in dispute to party No. 1 Narpat Raj. Against this order of the learned Sub -Divisional Magistrate, the petitioner has come up in revision before this Court.
(2.)THE only contention urged before me by the learned Counsel for the petitioner is that when the learned Magistrate did not go to the spot on 24 -7 -84 and did not fix any other date in the presence of the parties nor gave them any notice about such date, he was not justified in inspecting the site in the absence of the present petitioner on 25 -7 -84 nor was he justified in recording the ex -parte evidence of the non -petitioner No. 1 on that day in the absence of the present petitioner. The learned Counsel for the non -petitioner No. 1, however, urged that when the case was fixed for site inspection and the parties evidence on 24 -7 -84, and the Magistrate could not reach the spot on that day, the matter was taken up on the next day and the parties should have appeared before him. He also urged that even though the petitioner's evidence was not present on 25 -7 -84 the affidavits filed by the parties were already on the record and, therefore, no prejudice has been caused to the petitioner due to the non -examination of his witnesses.
I have given my careful consideration to the rival contentions and I may at once state that the contention raised by the learned Counsel for the petitioner deserves to be accepted. When the case was fixed for site inspection and the parties evidence on 24 -7 -84 and the learned Magistrate could not reach the spot, it was his duty to notify the next date to the parties. None of the parties was present on that day and, therefore, they could not be orally notified about the next date and no written notice were sent. The present petitioner could not have come to know that the learned Magistrate would come to the spot on 25 -7 -84 and, therefore, he could not appear before the learned Magistrate on that day and could not participate in the site inspection. He also could not cross -examine the witnesses produced by party No. 1 on that day. Equally he also could not produce his own witnesses on that day. Naturally prejudice has been caused to him.
(3.)THE fact that the affidavits filed by the present petitioner are on the record, would not in any way abate this prejudice because when the non -petitioner No. 1 was granted opportunity to produce his witnesses before the learned Magistrate over and above the affidavits filed by him an equal opportunity ought to have been given to the present petitioner also and, therefore, he could not have been deprived of the opportunity of producing his witnesses and also cross -examining the witnesses produced by the non -petitioner No. 1. The order of the learned Magistrate is certainly based on this evidence, which he had. taken in the absence of the petitioner and in these circumstances, this older of the learned Magistrate cannot be sustained. The matter will have to go back to the learned Magistrate to proceed from the stage on which the case was on 24 -7 -84.
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