JASRAJ CHOPRA, J. - (1.) THIS petition under s. 482 Cr. P. C. arises out of the order of the learned Addl. District Magistrate Jodhpur dated 11. 2,1988 whereby the learned Addl. District Magistrate has ordered that non-petitioner No. 2 Shri Madanlal will not use his Floor Mill, Saw Mill and Kherat Machine, which are installed by him in Plot No. 27, Subhash Colony, Jodhpur. However, the petitioners were ordered to produce their evidence. It is this order of produc-tion of evidence, which is under challenge in this petition.
(2.) THE facts necessary to be noticed for the disposal of this petition briefly stated are that the petitioners moved an application against non-petitioner No. 2 Shri Madanlal complaining that he has installed a Floor Mill, Saw Mill and Kherat Machine in Plot No. 27, Subhash Colony, Jodhpur which create nuisance to the habitants of that locality and, therefore, he may be asked to stop the use of those machines as these machines have not been installed by him after obtain-ing No Objection Certificate from the Competent Authority. On this application, proceedings under s. 133 Cr. P. C. were initiated. A preliminary order was drawn and the non-petitioner was directed to stop the use of those machines. He was further asked to show cause as to why this order should not be made absolute. This order was passed on 14. 1. 88 18. 1. 88 was fixed for filing reply. However, not-hing could be done by 18. 1. 1988. because the notices were not served. However, on 2. 2,1988 Shri R. K. Chhaparwala, Advocate filed power on behalf of non-peti-tioner Madanlal. On 9. 2. 1988, the Additional District Magistrate was on leave and thereafter, the case was listed for orders on 11. 2. 1988 and on that day, the non-petitioner did not file his reply and therefore, the Court felt that as no reply has been filed, the non-petitioner should not cause nuisance till further orders. However, the petitioners were asked to produce their evidence. THE petitioners have filed this petition challenging the direction of the learned Addl. District Magistrate asking them to produce their evidence, I have heard Mr. V. S. Choudhary, the learned counsel for the petition-ers and Mr. S. G. Ojha, the learned counsel for non-petitioner No. 2. I have carefully gone through the record of the case. Mr. N. P. Gupta, the learned counsel appearing for non-petitioner No. 2 has submitted that actually, such an order could not have been passed by the learned lower court. He has submitted that when the non-petitioner has failed to submit his reply, the Court had no option to make the order absolute and the order of the court that nuisance will not be caused till further orders is actually an order passed under s. 136 Cr. P. C. According to him, once the preliminary order has been made absolute, the order of the court asking the petitioners to produce the evidence is misuse of the power. I am afraid, I cannot agree with this submission of Mr. Gupta. In A. I. R. Manual, Volume 12th, Fourth Edition, the learned Authors V. R. Manohar and W. W. Chitaley have observed while com-menting on s. 136 Cr. P. C. that non-appearance cannot be inferred merely from failure to file written statement and the appearance contemplated under s. 136 Cr. P. C. is the physical appearance of the party against whom the order was made. It was further observed that the non-filing of a reply to the show cause notice will not confer jurisdiction on a Magistrate to pass an order under s. 136 Cr P. C. without asking the party if he denies the existence of a public right. In this case, the non-petitioner has put in appearance and an Advocate has filed power on his behalf and he was present on the date the impugned order dated 11. 2. 1988 was passed. Simply because the party has failed to file the written statement, it does not mean that it has not put in appearance or it has failed to show cause before any order can be made absolute. Actually, in this case subsequently a reply has been filed by non-petitioner No. 2 Shri Madanlal on 20. 2. 1988 denying existence of public right in favour of the petitioners. The order of the court itself shows that earlier it passed an order that nuisance should not be continued and the party was asked to show cause as to why nuisance be not stopped by 18. 1. 1988. When on 18. 1. 1988 no reply was filed, the Court continued that order till further orders and asked the petitioners to produce their evidence. Mr. S. G. Ojha, the learned counsel for non-petitioner No. 2 has placed reliance on a decision of the Kerala High Court in Krishna V. Varghesc (l) wherein it was observed as follows: "if the person against whom the show cause summons is served, appears and files objections the Magistrate should not dispose of the case under s. 136 but should take evidence and satisfy himself that the order passed by him is reasonable and proper. " In this case, the Magistrate thought it proper to hold the enquiry and once he has posted the case for enquiry, the evidence has to be led. Simply because no reply has been filed inspite of appearance, it does not mean that it confers jurisdiction on the court to make an order absolute under s. 136 Cr. P. C. without asking a party whether it denies the existence of a public right. In this view of the matter, the order of the learned lower court cannot be held to be without jurisdiction and it cannot be termed to be an exercise of the jurisdiction which is not vested in it. In the result, I find no force in this petition and it is hereby dismissed. . ;