JUDGMENT
M.K. Chawla, J.
(1) Petitioners have challenged the correctness of the order of the learned Sub-divisional Magistrate dated 14-1-1985, whereby a direction was issued to the Sho, Police Station, Kamla Market to deliver back the possession of the disputed room in premises No. 5285, Ajmeri Gate, Delhi, to the respondents.
(2) Learned counsel for the parties agrees that in the present proceedings initiated by the respondents under Section 145 of the Cr. P.C. before the learned Sdm, Kotwali, Delhi, the petitioners were proceeded ex parte and deprived of their right to participate, examine and cross-examine the witnesses. Can this fact by itself be enough to set aside the finding of the court below in the exercise of powers under Section 397 of the Cr. P.C. by this Court. Learned counsel for the respondent, to start with, has raised two-fold objections to the maintainability of the revision petition inasmuch as all the parties are not before the Court and that the petitioners should have approached the court when they were proceeded ex parte. Both these preliminary objections being highly technical are even otherwise devoid of any substance. In the first instance, all the respondents have a common cause. In the lower court, they were represented by the same counsel. It may be that by in- . advertance, in the memo of parties, the name of one of the respondents is missing but in order to forestall the objection, the petitioners have already moved an application (Cr.M. 359/86) for the amendment of the memo of parties and to bring on record the other respondents who were initially the petitioners before the lower court. However, without going into the merits of the said application, lam of the opinion that by virtue of Section 403 Cr. P.C. once the record of the case has been summoned and is being perused, the absence of any of the respondent parties will have no material bearing and is not fatal to the case. The second objection can be overcome if one refers to the provisions of Sections 397 and 401 of the Cr. P.C. which makes it amply clear that the order proceeding ex parte is an interim order against which no appeal or revision lies. The present revision challenging the final order is thus maintainable.
(3) On merits, I do not feel any difficulty in setting aside the impugned order. One has only to peruse few of the orders of the learned Sdm, Delhi. The proceedings under Section 145 Cr. P.C. were initiated on the report of the Sho, Ps, Kamla Market, Delhi, dated 21-7-1979. On 23-7-1979, preliminary order under Section 145(1) Criminal Procedure Code was drawn up. The parties were directed to appear in person. On that very day, an order of attachment of the disputed room in premises no. 5285, Ajmeri Gate, Delhi was also passed. Subsequently, the order of attachment was amended and the entire first floor of the building was attached on 15-2-1980. The subsequent order was, however, set aside by the High Court. The case was then adjourned for recording the evidence of the first party. No witness was either summoned or produced. The proceedings remained in that state for more than 3 years.
(4) The order dated 4-1-1984 shows that in the absence of the counsel for the second party, the case was set down for recording first party’s evidence on 19-1-1984. However, the case was taken up on 18-1-1984. On that day, only Sanwal Dass Gupta was present and the case was adjourned to 6-2-1984. The order of that date reads as under : “ONLY first party present. Second party was not present on last two dates. On 18-1-1984, I had ordered that if the second party is not present on the next date, case will be taken ex parte. Accordingly, the case is ordered ex parte. For evidence of first party, adjourned to 29-2-1984.”
It appears that the second party came to know of the last two days proceedings. On 29-2-1984, the counsel for the second party put in appearance and prayed for the setting aside of the ex parte proceedings or in the alternative, to allow them to participate in the proceedings, from then onward. This prayer was turned down. The second party was thus deprived of the right to cross-examine the witnesses of the first party or to produce any evidence in rebuttal.
(5) The learned Sdm on the basis of the record came to the conclusion that the first party was in possession of the disputed room within two months of the order of attachment and directed the Sho of the area concerned to deliver back the possession to the first party. However, while coming to this conclusion, learned Sdm referred to and relied upon the written statement of the second party.
(6) This order cannot be allowed to stand inasmuch as the learned lower court has no jurisdiction or any justification to proceed ex parte against the respondents/second party. No jurisdiction because Section 145 Criminal Procedure Code itself does not confer any power to the Court to initiate ex parte proceedings against a contesting party. No justification because of facts. Once the case has been adjourned to 19-1-1984 for recording the first party’s evidence, there was no occasion for the court below to take up the case a day prior to the date already fixed. Certainly, the counsel for the parties could not anticipate without there being any notice or an information that the case will be taken up on 18-1-1984. It was only for that reason that neither of the counsel for the parties put in appearance, except the first party Shri Sanwal Dass Gupta. On the subsequent date also, no counsel for the parties was present. By this time, the parties and their counsel had come to know that the case will be taken up on 29-2-1984. On that day, counsel for the second party made earnest efforts for the setting aside of the ex parte proceedings initiated against them. This argument did not prevail with the learned SDM. Thus, the second party was prevented from participating in the proceedings from that day onwards. At this stage, it will be relevant to mention that for the last many many hearings, over a span of more than 3 years, the first party did not produce any witness. There was absolutely no worthwhile progress in the case. No prejudice would have been caused to the first party in case the ex parte proceedings had been set aside or at least from that day onward, the second party would have been allowed to participate in the proceedings. This would have been the just and proper order. By not acceding to the request of the second party, their valuable right has been violated. The entire subsequent proceedings from 6-2-1984 are liable to be quashed.
(7) This aspect can also be looked into from another angle. If the second party has been proceeded ex parte, then the learned Sdm was not justified to refer to or find fault in the written statement of the second party in his order. The first party cannot be allowed to have the double advantage, in ousting the second party from the proceedings and then taking advantage of some averments of their written statement, without affording them the opportunity to explain their stand by way of either cross-examining the witnesses or producing the oral as well as documentary evidence in rebuttal. They have been condemned unheard without their fault. Certainly this cannot be allowed.
(8) As a result of the above discussion, I hereby accept the revision petition, set aside the impugned order dated 14-1-1985 by which the Sho of Ps, Kamla Market, was directed to hand over the possession of the disputed room to party no. 1. The order of attachment dated 23-7-1979 shall, however, stand. The proceedings are remanded to the court of the Sdm, Kotwali, Delhi with a direction to allow the second party to join the proceedings from the date when they were proceeded ex parte. The learned Sdm shall make endeavor to dispose of the controversy at his earlier convenience, preferably within six months from today.