Provisions of Order 9, Rule 13 Cr.P.C. being substantive in character and not procedural cannot be applied to the reference proceedings u/s 146 Cr.P.C., 1898.

Jagadisan, J. -

These Civil Revision Petitions have been directed to be heard by a Division Bench by order of the learned Chief Justice in view of the importance of the question that is raised and, because, the decision of a single Judge of this Court in Kondammal v. Doraiswami Naicker, (1961) 1 MLJ. 284: (1961) MLJ. (Crl.) 191, is challenged as not having been correctly decided.

The undisputed facts are as follows. A dispute in respect of possession of certain lands gave rise to a proceeding under section 145 of the Criminal Procedure Code before the Revenue Divisional Officer, Usilampatti, who is the Executive First Class Magistrate, Usilampatti. Before the learned Magistrate one Peria Karuppa Thever and 9 others were the B Party and one Vellai alias Ocha Thevar constituted the A Party. The learned Magistrate, being apparently of the opinion that the question which party was in possession on the crucial date, namely, the date of the preliminary order could not be satisfactorily determined by him, referred the matter to the District Munsif of Tirumangalam. This procedure was adopted under section 146, Criminal Procedure Code. When the proceedings came on for hearing before the learned District Munsif on 18th September, 1959, the A Party appeared through his counsel, but the B Party were absent and remained ex parte. A witness was examined on the side of the A Party who swore to the possession of that party on the date of the preliminary order and there was no evidence contra. On this evidence an ex parte order was passed by the learned District Munsif holding adversely against the B Party by declaring the possession of the A Party.

The B Party therefore filed an interlocutory application, I.A. No. 1144 of 1959 before the District Munsif praying to set aside the ex parte order, invoking the aid of section 151 and Order 9 , rule 13, Civil Procedure Code. During the pendency of this application Vellai alias Ocha Thevar, the A Party, died on 27th October, 1959. The B Party thereupon filed I.A. No. 1416 or 1959 to bring on record the widow and the daughter of the deceased A Party as legal representatives in order to enable them to prosecute further the application to set aside the ex parte order. The learned District Munsif held that the provisions of the Civil Procedure Code were not applicable to the reference proceedings under section 146, Criminal Procedure Code and dismissed both the applications. It is against these orders that the present Civil Revision Petitions have been preferred.

It is necessary to refer even at the outset to the decision in Kondammal v. Doraiswami Naicker, (1961) 1 MLJ. 342: (1961) MLJ. (Crl.) 267, as the correctness of this decision has been called in question by the learned Advocate-General appearing for the respondent in these petitions. That was also a case where a reference in the civil Court under section 146 , Criminal Procedure Code was made by the Magistrate in a proceeding under section 145, Criminal Procedure Code. The A Party failed to be present in the civil Court when the matter was posted for hearing and was treated as ex parte. The reference was disposed of by the civil Court in their absence. There does not appear to have been any application in that case under Order 9 , rule 13, Civil Procedure Code for setting aside the ex parte order. Apparently after the ex parte order of the civil Court was transmitted to the Magistrate and after the Magistrate implemented the finding of the civil Court, a petition to quash those proceedings was filed in this Court. One of the grounds urged for quashing the Magisterial proceedings was that the petitioners who were absent before the civil Court had no opportunity to participate in the enquiry held by the civil Court. Anantanarayanan, J. held that the interests of equity and justice required that they should be heard. At page 284 the learned Judge observes thus:

“In any event, it is now clear upon the authority, Kochadi Naidu v. Nagayaswami Naidu