P.L. Bhargava J. - (1.) THE applicants -Lakru, and his son, Mohan, occupier, No. D 331 27 in Mohalla Khalispura, Banaras. Kali Das Gupta the opposite party is the owner of house, which adjoins the house occupied by the applicants and bears No. D 33/28. It is alleged that the western wall of the house of Kali Das was in a dangerous condition. The Municipal Board of Banaras served upon him (Kali Das) a notice under Section 263, Subsection (1), clause (b) of the U.P. Municipals Act, 1916 requiring him to demolish the dangerous portion of the wall. On the 14th September 1949, Kali Das filed an application in the court of the City Magistrate of Banaras, under Sub -section (1) of Section 310 of the Municipalities Act, alleging that the applicants do not allow him to demolish the wall. The applicants were, thereupon, summoned and they filed various objections to the application filed by Kali Das. On the 13th December 1949, the Magistrate made an order directing the applicants to allow Kali Das to comply with the notice; and he further directed that the filed be put up before him on December 21, 1949.
(2.) IT appears that the order passed by the Magistrate, on the 13th December 1949, was not complied with and when the file was put up before the Magistrate on the 21st December 1949 the applicants filed an application praying that the order, dated the 13th December 1949, be vacated. Thereupon, the Magistrate made the following order: I cannot revise the order passed by me on the 13th December 1949. It is obvious from the application that the second party (Lakru and Mohan) are not allowing the first party (Kali Das) to comply with the notice under Section 263 M. Act. I order under Section 310 Cl. (3) M. Act that the second party shall pay a fine of Rs 5 per day till such time as he refused to allow the 1st party to comply with the notice under Section 263 M. Act. Case to be put up on 29, December 1949, to find out the time for which the second party continues to do so, so that the fine could be realized. On December 13, 1949, Kalidas filed and application pointing out that the applicants had not complied with the order. The Magistrate made the following order; The second party is absent inspite of due information. I take the facts mentioned in the application, therefore, to be true, Warrant of realization of Rs. 46 -fine to date in accordance with my order dated 21st , December 1249, will be immediately issued.
(3.) WHEN this order was passed, the applicants filed an appeal in the court of the Sessions Judge of Banaras. It appears from the Memorandum of appeal that they challenged all the orders made by the Magistrate. The appeal was dismissed by the Additional Sessions Judge of Banaras to whom it was transferred for disposal. The main ground upon which the decision of the learned Sessions Judge proceeded was that the applicants had not preferred any appeal either against the order, dated the 13th December, 1949, or against the one made on the 21st December 1949.;