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High Court Of Delhi
SHANTI DESAI - Appellant
Versus
SANWAL DAS GUPTA - Respondent
CRIMINAL APPEAL 16 of 1985
Decided On : 01/27/1987
Held, learned counsel for the respondent, to start with, has raised two-fold objections to the maintainability of the revision petition; inasmuch as all the parties are not before the Court and that the petitioners should have approached the court when they were proceeded ex-parte Both these preliminary objections being highly technical are even otherwise devoid of any substance. In the first instance, all the respondents have a common cause. In the lower court, they were represented by the same counsel. It may be that by inadvertence in the memo of parties, the name of one of the respondents is missing but in order to forestall the objection the petitioners have already moved an application (Cr. M. 359/86) for the amendment of the memo of parties and to bring on record the other respondents who were initially the petitioners before the lower court However, without going into the merits of the said application, I am of the opinion that by virtue of section 403 Criminal Procedure Code, once the record of the case has been summoned and is being perused the absence of any of the respondents/parties will have no material bearing and is not fatal to the case. The second objection can be over, come if one refers to the provisions of sections, 397 and 401 of the Code of Criminal Procedure which makes it amply clear that the order proceeding ex-parte is an interim order against which no appeal or revision lies. The present revision challenging the final order is thus maintainable. (Para 2)
(ii) Criminal Procedure Code, 1973 - Section 145 - Present proceedings initiated by respondents under section 145 - Petitioners were proceeded ex-parte Hearing done one day before date fixed - No evidence led by respondents (or long time-Petitioner's prayer to participate at later stage disallowed - W.S. of petitioner used to pass direction to S.H.O. to deliver back possession of disputed room to respondents - Revision against - Whether impugned order is liable to be set aside? (Yes)
Held, this order cannot be allowed to stand inasmuch as the learned lower court has no jurisdiction or any justification to proceed exparte against the respondents/second party. No jurisdiction because section 145 Criminal Procedure Code itself does not confer any power to the court to initiate ex-parte proceedings against a contesting any. No justification because of facts. Once the case has been adjourned to 19.1.1984 for recording the first party's evidence, there was no occasion for the court below to take up the case a day prior to the date already fixed. Certainly, the counsel for the parties could not anticipate without there being any notice or an information that the case will be taken up on 18.1.1984. It was only for that reason that neither of the counsels for the parties put in appearance, except the first party Shri Sanwal Dass Gupta. On the subsequent date also, no counsel for the parties was present. By the time, the parties and their counsels had come to know that the case will be taken up on 29.2.1984. On that day, counsel for the second party made earnest efforts for the setting aside of the ex-parte proceedings initia1cd against them. This argument did not prevail with the learned S.D.M. Thus, the second party was prevented from participating in the proceedings from that day onwards. At this stage, it will be relevant to mention that for the last many hearings, over a span of more than 3 years, the first party did not produce any witness. There was absolutely no worthwhile progress in the case. No prejudice would have been caused to the first party in case the ex-parte proceedings had been set aside or at least from that day onward the second party would have been allowed to participate in the proceedings. This would have been the just and proper order. By not acceding to the request of the second party, their valuable right has been violated. The entire subsequent proceedings from 6.2.1984 are liable to be quashed. (Para 6)
( 1 ) PETITIONER have challengedthe correctness of the order of the learned Sub-divisionalmagistrate dated 14-1-1985, whereby a direction was issuedto the S. H. O. Police Station Kamla Market to deliver Jackthe possession of the disputed room in premises No. 5285,ajmeri Gate, Delhi, to the respondents.
( 2 ) LEARNED counsel for the parties agree that in the present proceedings initiated by the respondents u/s. 145 of thecode of Criminal Procedure before the learned S. D. M. Kotwali, Delhi, the petitioners were proceeded ex parte anddeprived of their right to participate, examine and cross-examine the witnesses. Can this fact by itself, be enough toset aside the finding of the court below in the exercise ofpowers u/s 397 of the Code of Criminal Procedure by thiscourt. Learned counsel for the respondent, to start with, hasraised two-fold objections to the maintainability of the revisionpetition; inasmuch as all the parties are not before the Courtand that the petitioners should have approached the courtwhen they were proceeded ex parte. Both these preliminaryobjections being highly technical are even otherwise devoid ofany substance. In the first instance, all the respondents havea common cause. In the lower court, they were representedby the same counsel. It may be that by in advertance, in thememo of parties, the name of one of the respondents is missing but in order to forestall the objection, the petitioners havealready moved an application (Cr. M. 359/86) for the amendment of the memo of parties and to bring on record the otherrespondents who were initially the petitioners before the lowercourt. However, without going into the merits of the saidapplication, I am of the opinion that by virtue of Section 403cr. P. C. , once the record of the case has been summoned andis being perused; the absence of any of the respondents/partieswill have no material bearing and is not fatal to the case. The second objection can be overcome if one refers to theprovisions of Sections 397 and 401 of the code of Criminalprocedure, which makes it amply clear that the order proceeding ex parte is an interim order against which no appeal orrevision lies. The present revision challenging the final orderis thus maintainable.
( 3 ) ON merits, I do not feel any difficulty in setting asidethe impugned order. One has only to peruse few of the ordersof the learned S. D. M. Delhi. The proceedings u/s 145 Criminal Procedure Code. were initiated on the report of the S. H. O. , P. S. Kamlamarket, Delhi, dated 21-7-1979. On 23-7-1979, preliminaryorder u/s 145 (1) Criminal Procedure Code. was drawn up. The parties weredirected to appear in person. On that very day, an order ofattachment of the disputed room in premises No. 5285,ajmeri Gate, Delhi was also passed. Subsequently, theorder of attachment was amended and the entire first floorof the building was attached on 15-2-1980. The subsequentorder was, however, set aside by the High Court. The casewas then adjourned for recording the evidence of the firstparty. No witness was either summoned or produced. Theproceedings remained in that state for more than 3 years.
( 4 ) THE order dated 4-1-1984 shows that in the absenceof the counsel for the second party, the case was set down forrecording first party s evidence on 19-1-1984. However, thecase was taken up on 18-1-1984. On that day, only Sanwaldass Gupta was present and the case was adjourned to6-2-1984. The order of that date reads as under :-
"only first party present. Second party was notpresent on last two dates. On 18-1-1984, I hadordered that if the second party is not present onthe next date, case will be taken ex parte. Accordingly, the case is ordered ex parte. Forevidence of first party, adjourned to 29-2-1984. "
IT appears that the second party came to know of thelast two days proceedings. On 29-2-1984, the counsel forthe second party put in appearance and prayed for the settingaside of the ex parte proceedings or in the alte
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