1. This criminal revision is directed against the order of reversal to have been passed by the learned Sessions Judge Rajouri dated 28-2-1985 whereby in an appeal preferred by the petitioner Smt. Nirmal Kumari, "hereinafter referred to as the defendant, against the order of Munsiff Magistrate Nowshera dated 23-6-1984 holding that the proceedings initiated under section 476/195 Cr. P.C. read with Section 193 RPC by the defendant against the respondent Dev Raj Kohli, "hereinafter referred to as the plaintiff", were not maintainable and as such the petition moved before him by the defendant was dismissed as misconceived and the proceedings initiated on that score were dropped.

2. The facts of the case which have given rise to this revision petition are that the plaintiff Dev Raj Kohli filed a suit for declaration and permanent injuction against the defendant Nirmal Kumari in the trial court with which an application for grant of interim injuction was also moved. With that petition in support of his application for issuance of a temporary injuction, an affidavit was attached. It was alleged by the defendant that the affidavit filed by the plaintiff was false and he had no interest or title over the suit property. He had sworn and presented a false affidavit in a judicial proceeding in order to cause wrongful gain to himself and wrongful loss to the defendant.

3. On the said application of the defendant, after the evidence was recorded in the case, the learned Magistrate undertook that as in the case the legalities were involved, therefore there was no need to discuss the evidence in the matter and as such he disposed of the matter on the legal side of the case holding that the proceedings initiated were not contemplated under section 476/195 Cr. P.C, but provisions of Section 497 (A) Cr. P C. were invoked in the matter.

4. Heard learned counsel for the parties, also had a thoughtful consideration over the record on the file.

5. At the outset I may say that the suit preferred by the plaintiff against the defendant in the court of Munsiff Nowshera was dismissed in default and that case was never restored to its original number for the plaintiff did not move the court to get that order rectified by preferring an application for its restoration in the trial court. Two and a half years thereafter this application was moved before the trial court for lodging of the criminal prosecution against the plaintiff on account of the fact that a false affidavit was sworn by him with a motive to gain himself and to cause loss to the other side and therefore it was stated that the criminal prosecution was attracted in the matter and the trial court was requested to file a complaint against him before a competent Magistrate of jurisdiction for prosecution of the defendant.

6. On the perusal of the file it appears that the suit was dismissed in default and no gain or loss was caused to any of the parties and the property remained in the form as it existed before the institution of the suit. As the trial court did not dispose of the matter on trial of the case on its merits therefore he could not record his findings that the affidavit sworn in by the plaintiff was in any manner false and any forgery had been committed by him in filing such an affidavit with his application for issuance of a emporary injuction in his favour.

7. Much law has been laid down on the point, but in order to bring this matter in a short compass, I am motivated to make mention of AIR 1967 SC 68, wherein the Full Bench of the Apex Court have in nut-shell held that:

"Section 479-A lays down a special [procedure which applies to persons who appear as witnesses before civil revenue or criminal courts and do one of two things: (i) intentionally give false evidence in any stage of the judicial proceeding, or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceedings. The first refers to an offence under S. 191/193 and the secon

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