Court duty bound to give finding as to possession.

This revision under section 438, Criminal Procedure Code, arises out of the dropping of the petition filed under section 145, Criminal Procedure Code, by the Munsif-Magistrate, Nalgonda, on the ground that none on behalf of the parties is present and hence it appeared to him that no dispute in respect of the house likely to cause a breach of peace existed. The second party filed an application for revising the orders before the Sessions Judge, at Nalgonda. He considered the facts of the case and concluded that the proper order in the circumstances to pass is under section 146, Criminal Procedure Code and not under section 145, sub-section (5). This reference is made by him with the recommendation for remanding the case to the Court of the Munsif-Magistrate either to take action under section 146(1), Criminal Procedure Code or to decide the question of actual possession on merits after hearing the arguments of parties or after going through the record.

Mr. Suryaprakasam, the learned counsel for the first party, contends that under sub-section 5 of section 145, Criminal Procedure Code, Courts can act suo motu and drop proceedings if it appears to it that there exists no dispute any longer in respect of the property likely to cause a breach of the peace, and that before taking that step it is not always necessary for the parties alone to show that no such dispute exists or existed. As to the power of the Court to drop proceedings when certain conclusion has been reached in regard to the non-existence of the dispute there can be no question (Vide Velur Devasthanam v. A. Sambandamurthi Nainar1, and Golla Kesanna and another v. Beldari Ramaswami and others2).The reference also does not seek to contest this position, but raises two other important points namely, that it is not legitimate to conclude from the absence of the parties at the hearing that there does not exist any dispute likely to cause a breach of the peace and secondly, that in cases where the parties do not assist the Court by being present at the hearing, the conclusion that has to be reached is that it is not possible in that state of affairs to decide as to which of the parties was then in possession.

It is contended in support of the reference that the Court having been satisfied while passing the preliminary order under section 145(1), Criminal Procedure Code, that a dispute likely to cause a breach of the peace existed, the dropping of the proceedings later on, without further material on record would be tantamount to an unreasonable cancellation of that order which is meant mainly to prevent the breach of peace. From this it is argued that in cases where there is a preliminary order under section 145, Criminal Procedure Code, there could be no dismissal of an application or dropping of proceedings merely on the ground of the absence of anyone or of all parties. There is force in this contention. The nature of proceedings available under section 145, Criminal Procedure Code, is primarily meant to prevent the breach of peace and if the Court is satisfied that the dispute likely to cause breach of peace existed, the duty of preventing such breach and giving a finding as to possession would continue to be there irrespective of the fact that the parties have been regular in their attendance at the hearings or have withdrawn their assistance to the Court. The absence of the provision in the Criminal Procedure Code for dismissal in default of appearance of the parties to applications under section 145, Criminal Procedure Code, is also significant. It follows that the procedure provided for in regard to these possession proceedings does not at all give room for dismissal of the application or cancellation of the order passed under sub-section (1) of section 145, Criminal Procedure Code, on account or as a result of the absence of the parties. However, the decision reported in Ram Chandra Shaw and others v. Madhab Nayak and others3, reveals a different view. There