1. This Rule must be made absolute. The ground of grievance of the petitioner is that the learned Magistrate did not hear the arguments in the case although his legal representative wanted to be heard. The facts connected therewith are set out in paras. 5 and 6 of the petition before me. The Magistrate in his explanation does not deny the allegations made by the petitioner but he justifies his procedure on the ground that he ‘did not consider the hearing of the argument necessary.” The test is not what the Magistrate thought but what the party thought. If the party considered that the argument on his side would be beneficial to his interest the Magistrate was bound to hear him. Cl. 4, S. 145, clearly provides “that the Magistrate shall hear the parties.” This includes the argument at the conclusion of the evidence on both sides as the procedure prescribed in S. 244 of the Code for summons trial. It was pointed out in the case of Hurendro Narain Singh Chowdhry v. Bhobani Prea Baniani(1) that although it is nowhere declirei in the Code as to whether the procedure for inquiry under S. 145 should be that of a summons case or warrant case it is clear from the nature of the inquiry that the procedure should be regarded on all the points as that prescribed for summons cases. The wording of S. 244 relating to summons cases is almost identical with that of Cl. 4, S. 145, so far as this point is concerned.
2. It was further pointed out in the authority quoted above that the Magistrate was wrong in refusing to hear the arguments of pleaders and that it is not improbable that if he had heard their arguments he would have had his attention directed to the point in favour of the petitioner and probably passed a different order from what he has passed in the case. Very recently in a case of this Court Jatan Singh v. Dukhia Singh(2) it was held that the refusal of the Magistrate to hear the argument of the parties vitiated the final order passed under S. 145 as being in excess of jurisdiction. The order of the Magistrate is therefore set aside and the case remanded for a fresh decision after hearing the arguments of the parties.
V.S/R.K
3. Rule made absolute.