Find a Lawyer

Criminal Revision No. 1043 of 1969, decided on 12th January 1970.

S. 145-Notices issued to opposite-part by post but not served nit them before the date fixed for hearing-Magistrate presuming that notice may be deemed to have been served and passing ex parse order---Such order, held, without jurisdiction and set aside.

Petitioner No. 1 in person,

Khalil-ur-Rehman Khan for Respondent No.1

Major Hafeez-ud-Din for the State.

The facts of this case, which has been reported under section 438, Cr. P. C. by Mr. Muhammad Hassan Sindhar, Sessions Judge, Rawalpindi, briefly are that premises No. 2-A/1, 2, 7 and 8, Jinpah Road, Murree, were leased out by its transferee Mst. Zakia Begum in favour of Messrs Umar Hayat and A. S. Clive for running a restaurant. Later, the lesson transferred her rights of ownership in the property in favour of Mst. Mahboob Jan, wife of Abdul Shakoor, who was impleaded as respondent No. 1, before the learned Sessions Judge. On the 16th of May 1969, Abdul Shakoor aforesaid in his capacity as attorney of his wife Mst. Mahboob Jan, the new transferee of the premises, moved an application before the learned Sub-Divisional Magistrate, Murree, under section 145, Cr. P. C. with a prayer that he be declared in possession of the premises which may be unlocked. After recording preliminary order under subsection (1) of section 145, Cr. P. C., the learned S. D. M. issued notices to Messrs Umar Hayat and A. S. Clive for the 31st of May 1969. The last-mentioned two gentlemen resided at Lahore and did not appear on the date fixed. The case was then adjourned to 4th of June 1969, as even the Acknowledgment Due postcard had not been received back in Court. On the 4th of June 1969, presuming that notices may be deemed to have been served on the addressees, the learned S. D. M. ordered ex pare proceedings against the two above mentioned respondents before him. Strangely enough, after ex parte order had been passed by the learned S. D. M. the registered envelopes addressed to Messrs Umar Hayat and A. S. Clive were received back with the endorsement that they were not available being away from Lahore.

2. Feeling aggrieved by ex parte proceedings resorted to against them, Umar Hayat and A. S. Clive filed a revision petition before the learned Sessions Judge inter alia on the ground that no order under section 145, Cr. P. C. could be passed unless the parties concerned had been required to attend the Court, put in written statements in respect of their claims as also as to the position in regard to the actual possession of the subject matter of dispute. Obviously, finding considerable force in this contention the learned Sessions Judge referred the case to the High Court for setting aside the ex parse order.

3. In all fairness, the learned counsel for Abdul Shakoor respondent, has frankly conceded the indefensibility of the ex parte order 'passed by the learned S. D. M. and I have no hesitation in setting it aside as having been passed without jurisdiction. While accepting the reference, therefore, it is directed that fresh" notices should be issued to the parties, who should be afforded opportunities to lead evidence in support of their respective positions in accordance with law before a final order is passed in. the matter.

4. Normally, the acceptance of this reference should have warranted the restoration of the position as it obtained on the 5th of June 1969, i.e., the date when the impugned order was passed by the learned S. D.M. but it is submitted on behalf of Abdul Shakoor that a fortnight later, i.e., on the 20th of June 1969, he executed another lease deed in favour of one Muhammad 1qba1, who is not a party to these proceedings in the High Court. It is submitted that Muhammad lqbal, the new lessee, is in actual physical possession of the premises at the moment and is running a hotel therein.

5. Since, however, in mid-winter no hotel is supposed to function in the town of Murree, I do not gee any objection to the restoration of status quo ante and would direct that in the interest of justice a notice should also be issued to Muhammad 1qbal by the learned S. D. M. to afford him an opportunity to press his claim to the possession of the premises, if any, before passing a final order. It may also be observed that an expeditious disposal of the case would be in the interest of the parties and would obviate further complications.

6. A copy of this order may be supplied dasti to Messrs Umar Hayat and A. S. Clive on payment of usual charges.

Order set aside.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.