D.S. Mathur, J. - (1.) This is an application u/s 561-A, Cr.P.C. by Shamshul Haq and two others for quashing the order dated 28.5.1963 of the civil court allowing the restoration application and setting aside the ex parte order passed on 19.3.1963.
(2.) The material facts of the case are that on a report form P.S. Kotwali, Moradabad, the City Magistrate took proceeding u/s 145, Cr.P.C. with regard to a piece of land situated in Mohalla Asalatupra Bhura within the city of Moradabad. As there was an apprehension of the breach of peace the plot of land was attached and the parties were directed to appear in Court and file their written statements in respect of their claim of actual possession and also to adduce evidence in accordance with the law. The present applicants and also Aziz Ahmad, opposite party no. 2, claimed to be in possession thereof and filed their written statements and evidence. The Magistrate found it difficult to arrive at a finding with regard to possession and made a reference to the civil court u/s 146, Cr.P.C. for determination of the question of possession. The Magistrate's order is dated 15.1.1963.
(3.) As would appear from the impugned order dated 28.5.1963, 18.3.1963 was fixed for the hearing of the reference. On that date the opposite party absented himself and the reference was decided ex parte on 19.3.1963. The civil court, namely, the Civil Judge of Moradabad, accepted the statement on oath of Shamshul Haq and as there was nothing to rebut his statement the reference was decided in favour of the applicants.;