JUDGMENT

Hill, JJ. - It was a reference by the Sessions Judge of Bhagulpur submitting the case to the High Court lender Section 438 of the Criminal Procedure Code for orders.

2. The letter of reference or the Sessions Judge was as follows:

The present petitioners appear to have been parties with others to two proceedings taken u/s 145 Criminal Procedure Code, before the Deputy Magistrate of Supoul of (sic) about the same time. The proceedings in respect of which this application is made related to land in Daharia, and the other case related to lands in Kusaha. The game persons were the parties in both cases. In this case the petitioners were made the first party and Bajendro Narain and others were made second party, and in the Kusaha case vice verse.

Both cases were fixed for hearing about the same time, this case being fixed for the 24th January last, and the other case for the 27th January 1896.

When this case was called on for hearing the petitioners had not their witnesses ready, but had their witnesses present in the case of Kusaha. They applied for an adjournment, alleging that they were under the influence of a bond fide mistake that the Kusaha case would be taken up that day, and the Daharia case on the 27th January. The Deputy Magistrate refused the application. Another petition was put in asking for a day's adjournment, which was also refused. The Deputy Magistrate disposed of the case after taking the evidence of the second party, Rajendro Narain, only. He examined the petitioner, Lachmi Narain, who said he had been misinformed by a servant as to the date, and he also examined the petitioner's mukhtear, who said he had known that the 24th January was the date fixed for the Daharia case, but his clients had not been to him to ask him.

In support of this application it is urged that this case should be sent back to the Deputy Magistrate for further inquiry:

(a) Because petitioners were under the influence of a bond fide mistake as to the date, and the Deputy Magistrate ought not to have refused their application for an adjournment;

(b) Because, when from the evidence of the other party it appeared that Jugdeo Jha was interested in the land as a proprietor, the Deputy Magistrate ought, following the ruling in Ram Chunder Das v. Monohur Roy ILR 21 Cal. 29 to have granted the application of the petitioners and to have issued a notice to Jugdeo Jha, so that the case might have been heard in his presence, or he might have had an opportunity, as a party to the proceeding, of putting in any objection; and

(c) Because the order contains no specification of the lands in dispute, and while the proceeding drawn up by the Deputy Magistrate specified 3 bighas in 2 plots as the lands in dispute, the witnesses for the other party gave evidence with regard to 16 or 17 bighas.

In opposition it is urged that the objection to the trial on the 24th January was not bona fide, and that the petitioners' only object was to get the other case tried first, so that the other party might first give their evidence. But this argument cannot apply to the application for one day's adjournment.

It is also urged that the land referred to in the proceedings of the Deputy Magistrate is included in the 16 or 17 bighas deposed to by the witnesses. This may be so, but there is no proof that it is the case.

It is not improbable that the Deputy Magistrate is right in holding that the petitioners wished to harass the other party by frequent postponements, but I do not think that this was sufficient reason for his refusal to grant the one day's adjournment prayed for, and I am far from being satisfied that the petitioners were not under a bona fide mistake as to the dates fixed for the two cases. The description of the present case in the order sheet seems to have been confused in the course of the proceedings. In my opinion the Deputy Magistrate ought to have granted the adjournment prayed for, so as to have enabled the petitioners to produce their evidence.

The objectio