M.H. Beg, J. - (1.) THE Petitioner alleges that he is a tailor residing in the City of Sultanpur who had some dispute over tailoring charges with a practising lawyer of Sultanpur. He alleges that the Sarpanch of the Nyaya Panchayat of village Mayang is the father of the practising lawyer with whom the Petitioner had the dispute. The Petitioner alleges that a complaint was filed against him by one Ghirrau, Opposite Party No. 3, in the Nyaya Panchayat of Mayang alleging that the Petitioner had been entrusted with a blanket and a Durri when he went to the village and slept there. The Petitioner is alleged to have disappeared in the morning with the blanket and the Durri. In other words, the allegation was that the Petitioner was a casual visitor to the village who disappeared with, some property entrusted to him. The complaint was, however, brought for an offence of theft punishable Under Section 379 IPC.
(2.) THE Petitioner also alleges that he was not served personally with the summons fixing the date of hearings. The order sheet of the case in the Nyaya Panchayat shows that a letter was sent by registered post which was returned with an endorsement that the Petitioner had refused to accept it. Consequently, the evidence of the complainant was taken without the attendance of the Petitioner. It is not disputed that the Petitioner resides outside the jurisdiction of the Nyaya Panchayat of village Mayang. The procedure for service of summons upon persons residing outside the jurisdiction of a Nyaya Panchayat is contained in Rule 120, which runs as follows: If the person to be summoned by a Nyaya Panchayat in a case resides out side its jurisdiction, the Nyaya Panchayat shall send the summons, by post or otherwise to the Nyaya Panchayat or the Court within whose jurisdiction the person on whom it is to be served resides and such Nyaya Panchayat shall cause it to be served as if it were its own summons and shall return the duplicate to the Nyaya Panchayat concerned. It is evident that this was not done at the initial stage. But, after the examination of the prosecution witnesses, the Nyaya Panchayat seems to have realised that the summons should have been served through a court as the Petitioner resides in the city of Sultanpur. Consequently, a summons was issued to the Petitioner through the court. This was received by the Petitioner's brother. It appears that the next date fixed was 5 -4 -1963. The date initially fixed for delivery of judgment on 5 -3 -1963 was postponed in order that the summons may be served upon the Petitioner. It is, however, clear that the summons was not served personally upon the Petitioner although the Petitioner had knowledge of the service of the summons fixing 5 -4 -1963 as the date of hearing. The Petitioner's conduct is also not above suspicion. The Petitioner alleges that he realised as soon as the summons was served upon his brother that a complaint was filed at the instance of the practising lawyer who had already threatened him. But, evidently, after having come to know of the date of hearing, the Petitioner avoided going to the Nyaya Panchayat. Instead, the Petitioner filed a transfer application (a copy of which is Annexure A) Under Section 85 of the UP Panchayat Raj Act before the Sub -Divisional Magistrate Sadar Sultanpur opp. party No. 1. In this application the Petitioner alleged that there is a danger of his being beaten up by the opp. party or by men hired by the opposite party if he went to attend the case on the date fixed. This shows that the Petitioner not only knew the date of hearing but also knew the "opposite party" meaning thereby Ghirrau. It is apparent that the Petitioner was afraid of going to this village because he knew that Ghirrau was hostile to him although he alleges in this Court that he did not even know Ghirrau from before.
(3.) IT is somewhat surprising that Ghirrau, Opposite Party No. 3, who filed the complaint Under Section 379 IPC, so that the Petitioner was fined Rs. 85/ - , has not appeared at all to oppose this writ petition although he had been served. Therefore, so far as Ghirrau is concerned, the allegations made by the Petitioner, which have not been controverted, could be deemed to have been admitted. The Petitioner had obtained an order from the Sub -Divisional Magistrate, Opposite Party No. 1, on 29 -3 -1963, staying proceedings before the Nyaya Panchayat. But, he did not have the courage to go to the village and inform the Nyaya Panchayat of the stay order. It appears that he sent a letter to the Sarpanch of the Nyaya Panchayat which was received by the Sarpanch on 9 -4 -1963 after the delivery of the judgment on 5 -4 -1963. He alleges that he sent another letter on 18 -4 -1963. This is evident from the counter -affidavit filed in this case by the Sarpanch of the Nyaya Panchayat who opposed the writ petition although Ghirrau opposite party No. 3 has not come forward to oppose it.;