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Petition for Special Leave to Appeal No. 27‑D of 1970, decided on 18th June 1970.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 10th March 1970, in Criminal Revision No. 227 of 1969).
-----S. 145‑Dispute as to possession of immovable property‑Ex parte proceeding‑ Petitioner having notices of dates of hearing avoiding appearance in Court and failing to cross‑examine witnesses produced by other party‑Peti tioner's application seeking permission to cross‑examine other party's witnesses and to produce evidence on his own behalf, having been filed after passing of final order by Court, held, rightly rejected Petitioner's only remedy lay in filing civil suit.
M. Nurullah, Advocate Supreme Court instructed by Aminul Huq, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 18th June 1970.
‑At the instance of the respondents Nos. 1 to 3 herein an ex parte proceeding under section 145 of the Code of Criminal Procedure was drawn up on the 10th of November 1961, against the petitioner and seven others anti show‑cause notices were issued on them. The land was attached and a Receiver was appointed. The petitioner filed his written statement on 19th March 1965, but the case somehow dragged on till the 10th of October 1968, when three witnesses were examined on behalf of the respondents. The petitioner had notice of this date but did not appear even though there was an earlier order that the case would proceed ex parse in his absence. He allowed the evidence of these witnesses to go unchallenged. The case was then adjourned to 26th October 1968, but again the petitioner did not appear and the Magistrate passed a final order declaring the possession of the said respondents and discharging the receiver appointed earlier.
After the passing of the order the petitioner appeared and filed a petition for permission to cross‑examine the witnesses and to adduct' evidence on his behalf, but as the Magistrate bad already passed the final order, he rejected this petition stating that he had already passed the final order.
The petitioner then moved the Sessions Judge, Chittagong, under sections 435 and 438 of the Code of Criminal Procedure, requesting him to make a reference to the High Court for the quashing of the order of the Magistrate. In view of the above facts the Sessions Judge refused to make the reference. The petitioner then came directly to the High Court by way of a revision petition. The High Court also refused to interfere. He now seeks special leave to appeal.
Learned counsel appearing on behalf of the petitioner admits that he had notice of all the dates fixed by the Magistrate as also of the order for ex parte hearing, but says that he did not appear on the earlier dates, because, those dates were fixed only for the examination of the respondents' witnesses. He appeared, however, on the last date. He was a little late but he asked for permission to examine the witnesses. This permission was refused.
It is clear ‑from the above that the petitioner was clearly negligent in not appearing on the previous dates and cross ‑examining the witnesses as they gave evidence. His appearance on the last date was also belated. The petition was put in after the final order had been made. In the circumstances, he cannot make any grievance against the order of the Magistrate. He has himself to thank for whatever has happened.
His remedy now lies in filing a civil suit and getting a receiver appointed immediately. There is no ground for inter ference in this case more. This petition is, accordingly, dismissed.
Petition dismissed.
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