Sajjad Ali vs Liaqat Ali and Others

B.P. Singh, J.—This is an application for revision against the judgment and order dated 17th August, 1991 passed by the Additional Sessions Judge (Special Judge) Bareilly, in Liaqat Ali and Ors. v. Sajjad Ali and Ors. Criminal Revisi No. 142 of 1991 setting aside the order dated 6th March, 1991 passed by the Additional City Magistrare, Bareilly, in Criminal Case No. 9/90 u/s 145 Code of Criminal Procedure P.S. Baradari, Bareilly City. The following facts are not disputed.

Acting on a Police report dated 17-6-1979 that there was an immediate apprehension of breach of peace regarding the disputed land situate in Mohalla Sufi Tola P. S. Baradari district Bareilly, the City Magistrate passed a preliminary order on 17-6-1979. Thereafter, the land in dispute was allotted by the City Magistrate, Bareilly on 25-10-1979 Sajjad Ali, the Applicant was the first party in the case while Shaukat Ali was the second party in the case before the learned Magistrate Subsequently Nawab Ali Samdhi of Shaukat Ali and Ashfaq Ali were also made as second party m the case. Both the first party as well as the second party staked their claim to the land in dispute claiming that they were the owners in possession of the same. Written statements were filed by Sajjad Ali Shaukat Ali Nawab Ali and Ashfaq Ali. The case remained pending in the court of the City Magistrate and none of the parties has stated before me the reasons as to why the case remained pending for such a long time. Shaukat Ali died on 7-1-1991 and Nawab Ali had predeceased him some time in September, 1990.

The learned Magistrate found on 24-1-1991 that the second party was absent Consequently 6-3-1991 was fixed in the case for ex parte hearing. After hearing the learned Counsel for the first party, the Additional City Magistrate Bareilly, decided the case on 6-3-1991 and held that the first party sajjad Ali was in possession over the disputed land. In the order dated 6-3-1991 there is no mention of the fact that Shaukat Ali and Nawab Ali were not alive on 24-1-1991.

Aggrieved by the judgment and order dated 6-3-1991, Liaqat Ali, Sharafat Ali, Zulfiqat Ali and Sharif Ali sons of Shaukat Ali and Smt. Quresha Begum widow of Nawab Ali Criminal Revision No. 142 of 1991 in the court of Addl. Sessions Judge (Special Judge) Bareilly Criminal Revision No 142 of 1991 was allowed by the Additional Sessions Judge (Special Judge) Bareilly on 17-8-1991 and the case was remanded back to the trial court with the direction that the revisionists before him were to be given an opportunity to file written statements and thereafter both the parties were to be given an opportunity to lead their evidences.

It is against this order dated 17-8-1991 that Sajjad Ali has come in revision. I have heard the learned Counsel for the parties at some length.

The main contention of the Applicant''s counsel is that the judgment and order of the learned Sessions Judge did not suffer from any illegality. On the other hand, the main thrust of the argument of the learned Counsel for the opposite parties is that the order dated 6th March, 1991 was a nullity because it was passed against dead persons and as such, the judgment and order dated 17-8-1991 did not call for any interference. It is not disputed that Shaukat Ali died on 7-1-1991 and Nawab Ali had predeceased him some time in September, 1990. It is also not disputed that Sajjad Ali, the Applicant, who is a close neighbour of Shaukat Ali and Nawab Ali, did not bring the fact of their death to the notice of the court. Opposite parties Liaqat Ali, Sharafat Ali, Zulfiqar Ali, Sharif Ali and Smt. Quresha Begum have contended that they had no information that Shaukat Ali and Nawab Ali were contesting the case in the court of the City Magistrate and consequently they could not apply for substitution in the proceeding before the learned Magistrate. It was only when Sajjad Ali went to take possession over the land in dispute on the basis of the order of the City Magistrate dated 6th March, 1991 that they came to know about the case in question.

Section 145(7) Code of Criminal Procedure runs as follows:--

When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

A plain reading of the above Sub-section will make it clear that it is not mandatory for the Magistrate to substitute the legal representative of a party in a case u/s 145 Code of Criminal Procedure. The word "may" appearing in Sub-section (7) of Section 145 indicates that the Magistrate is not bound to bring the legal representative of the deceased party in the every case. The Magistrate can drop the proceeding on the death of one of the parties if the danger of the dispute which was likely to cause breach of peace had disappeared. It may be that only two parties were staking their claim of possession over a particular property and after the death of one of them the dispute was no longer there. In such a case, the Magistrate need not to bring the legal representative of the deceased on the record, but if threat of breach of peace remained, the Magistrate was bound to substitute the legal representative of the deceased party in the case. No doubt, there is no provision u/s 145(7) Code of Criminal Procedure to issue notice to the legal representative of the deceased party, but it was the duty of Sajjad Ali to bring the fact of the death of Shaukat Ali and Nawab Ali to the Court''s notice so that the Court could have determined if the threat of the dispute which was likely to cause the breach of peace was still existing or not. Liaqat Ali and others have staked their claim in place of Shaukat Ali and Nawab Ali and it could not be said that the danger to the dispute which was likely to cause the breach of peace was no more there.

In this view of the matter the contention of the learned Counsel for the opposite parties that the order dated 6th March, 1991 was a nullity, as it was passed against dead persons was not without force. Thus, the present application for revision has no force and is liable to be dismissed.

ORDER

The apnlication for revision is dismissed. The stay order dated 29-8-1991 is hereby vacated. Revision dismissed.