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1963 (4) TMI 93
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.... a tenant claims that the annual reasonable rent of any accommodation is inadequate or excessive he can institute a suit for declaration or for fixation of rent "in the court of the Munsif having territorial jurisdiction, if the annual cent claimed or payable is ₹ 500/- on less, and in the court of the Civil Judge having territorial jurisdiction if it exceeds ₹ 500/-" vide Section 5(4). It has never been questioned that this provision does not confer a new jurisdiction upon the court of a Munsif or of a Civil Judge and simply provides for a new relief to be granted to a landlord or a tenant by the courts in the exercise of their ordinary jurisdiction viz. the jurisdiction conferred upon them by the Bengal, Agra and Assam Civil Courts Act (No XII of 1887) and the Oudh Courts Act by which they are created. Section 7-B(1) is to the effect that when any tenant is in arrears of rent For more than three months "the landlord may make an application to the Munsif having territorial jurisdiction for an order of ejectment of the tenant from the accommodation". Then follow provisions which deal with con tents of the application, its verification, the procedure....
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....f a new and distinct jurisdiction which might have been conferred by the legislature upon any authority and was accidentally conferred upon a person already vested with jurisdiction under the Bengal, Agra and Assam Civil Courts Act. The ordinary jurisdiction of a Munsif extends be original suits for the time being cognizable by civil courts. Under Section 9 C. P. C. civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Whether a tenant has a right or not to require the landlord to carry out certain repairs to the accommodation is a civil dispute. The relations between a landlord and tenant are governed by the Transfer of Property Act and the Contract Act and any enforcement of a right or a liability accruing under them would be through a civil court. Under them a tenant has no right to call upon the landlord to make the accommodation windproof and waterproof and to carry out repairs which the landlord did not undertake (o carry out; consequently he would have no right to go to a civil court for an order of this nature. Such a right has, however, been conferred upon him by Section 7-E of ....
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....eaks of "a court of Munsif" it certainly means a court and not a persona designata, but the converse is not always true and it may speak of "a Munsif meaning thereby "a court of Munsif. There is certainly a distinction between a court and the officer presiding over it, but, while a reference to a court always means what it says, a reference to the officer presiding over it is ambiguous and may mean either the court or him as distinct from the court. What the Legislature means by its referring to an authority described as the authority presiding over a court depends upon whether it means to refer to the court or to him and refers to the fact of his presiding over a court simply to describe or identify him. It is always open to the Legislature to confer a special jurisdiction upon an authority presiding over a court and when It does so it may have to refer to the fact of his presiding over the court in order to describe or identify him. In such a case the reference to his presiding over the court is only accidental and does not mean that he has to exercise Jurisdiction as a Court When the Legislature referred in Section 7-E to "the Munsif having jurisdiction&....
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....earing the appeal they exercised jurisdiction of the Supreme Court and not as an independent and supervisory authority over the Board. Evatt J referred to Medical Board of Victoria v. Meyer. 56 CLR 62 which deserts the theory that while a jurisdiction is conferred upon "a Judge of the Supreme Court" it is distinguishable from that of the Supreme Court. Similar was the decision in James Chadwick and Bros Ltd v. National Sewing Thread Co Ltd AIR1951Bom147 where it was observed that where a statute directs that an appeal shall lit to a Court already established the appeal must be regulated by the practice and procedure of the court When a Deputy Commissioner exercises jurisdiction conferred upon him under Section 13(3) of the U. P. and Berat Relief of Indebtedness Act. he acts as a re-venue officer and not as a persona designata; see Ram Million v Bandlal AIR1958MP203 . For the distinction between jurisdiction conferred upon a new statutory body created by an Act and exercising administrative functions and jurisdiction conferred upon an existing court reference may be made to R v. Southampton Licensing Justices (1906) 1 KB 446 and Colchester Brewing Co Ltd. v. Tendring Licen....
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.... of a court deciding a matter as an arbitrator under the Defence of India Act was held to act not as a Court but as a persona designata Justices at a licensing meeting are not a Court and an appeal from their refusal to grant a licence is not governed by the Summary Jurisdiction Act; Boulter v Justices of Kent. (1897) AC 556 See also Atwood v Chapman (1914) 8 KB 275 in which they were held not to act as a court in law A Civil Judge upon whom a jurisdiction is conferred by the Madras Rent Control Act does not exercise the jurisdiction as Civil Court according to Rayala Corporation (Madras) Ltd. v. Syed Bawkar Co AIR1957Mad385 . A District Magistrate exercising jurisdiction conferred by the Madhya Bharat Police Act is not a criminal court and acts administratively; this was the decision in Dongarsingh v. State AIR1957 MP 97. Strickland v. Crima 1930 AC 285: (AIR 1930 PC 227) dealt with a statute conferring jurisdiction upon the Court of Appeal to decide all questions that may arise as to the right of any person to be a member of the legislative assembly and the House of Lords held that when the Court of Appeal decided in a particular case that the election of X was void no appeal la....
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....unsif to exercise the jurisdiction conferred by Section 7-E not in his private capacity but in his capacity to act as the presiding officer of a Munsif's court. Gulam Nizamuddin v. Akhtar Husain Khan AIR1933All764 ; Municipal Corporation of Rangoon v M. A. Shakur AIR 1928 Rang 25 (FB) Municipality of Sholapur v. Tuljaram, AIR 1981 Bom 562 should not Be interpreted as laying down a hard and fast rare that when jurisdiction is conferred upon the presiding officer of a court and not upon the court itself he acts as a persona designata. "One has got to look to the entire provision for the purpose of determining whether the matter is to be Beard by the Judicial Officer as a Court or in his own personal capacity"; Kiron Chandra Bose v. Kalidas Chatterji AIR1943Cal247 . "Whether an act is to be perform-ed by the one or the other is generally to be determined by the character of the act, rather than by such designation. Whenever the power or duty imposed is found from a consideration of the object and purposes of the act to be one which is more properly the function of the court, it will be so construed; and whenever it is manifest that the legislature meant the judge, ....
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....e general scheme and other provisions of the Act. 12. According to the preamble of the Act, the object of this legislation was to control the letting and the rent of accommodations, and to prevent the eviction of tenants. Under Section 3 of the Act, a District Magistrate may grant a landlord permission to file a suit against a tenant for his eviction. Under Section 5 of the Act, a landlord or a tenant may institute a suit for fixation of rent. Such a suit has to be filed in the Court of the Munsif or in the Court of the Civil Judge, according to the valuation of the subject-matter Under Section 7 of the Act, a District Magistrate may pass orders about allotment of houses Under Section 7-B, the landlord may apply to the Munsif having territorial jurisdiction for the recovery of arrears of rent and for ejectment of the tenant. Under Section 7-C of the Act, the tenant may deposit rent in the Court of the Munsif having jurisdiction. Under Section 7-D, the District Magistrate can direct a landlord to restore amenities to a tenant. Under Section 7-E of the Act, the Munsif having jurisdiction may order a landlord to carry out repairs. 13. To grant permission for filing a suit for ejectm....
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.... the application treated as a plaint in a suit for recovery of arrears of rent alone ... ......" According to Sub-section (8), if the applicant pays the necessary court-fee, the application has to be treated as a plaint and the proceedings as a suit. It is to be noted that the same Munsif has to deal with the entire proceeding from Sub-section (1) to Sub-section (8) of Section 7-B of the Act. Under Subsection (8), the application has to be treated as a plaint, and the proceedings constitute a suit it is obvious that the Munsif acting under Sub-section (8) of Section 7-B is a Civil Court. It is unreasonable to suppose that, a Munsif has one character under Sub-section (1), and another character under subsection (8). The status of the Munsif must be the same throughout the proceeding under Section 7-B of the Act. The status of the Munsif cannot alter, simply because the landlord has paid court-fee in order to convert the application into a plaint. Throughout the proceeding under Section 7-B of the Act the Munsif is a Civil Court. 15. Mr. Vishnu Kumar Gupta, appearing for the opposite party, pointed out two matters in support of his contention that under Section 7-E of the Act....
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.... no clear indication in the Act that, a Munsif is a person a designata. On the contrary, the Act contains several references to Munsifs as Courts. In the Act we come across three different expressions: (1) the Munsif having Jurisdiction, (ii) the Munsif having territorial jurisdiction, and (iii) the Court of the Munsif having jurisdiction. The three expressions appear to have been used in the Act indiscriminately. The three expressions refer to the same authority The expression "the Court of the Munsif having Jurisdiction" obviously refers to the authority as a Civil Court. The other two expressions also appear to have been used in the same sense. The expression "Munsif having jurisdiction" used in Sub-section (4) of Section 7-E of the Act is equivalent to the expression, "the Court of the Munsif having territorial jurisdiction". 19. In view of all these considerations, I have come to the conclusion that, a Munsif functioning under Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 is a Civil Court sub-ordinate to the High Court. Consequently, the present Civil Revision under Section 115, C. P. C. is maintainable. PATHAK, J.: ....
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.... apply "to the Munsif having jurisdiction" for an order directing the landlord to carry out any repairs, other than annual repairs, which he was bound to make. The jurisdiction of the Munsif, and the procedure to be followed by him, were set out in some detail. The relevant provisions of Section 7-E are: "(4) If the landlord neglects to carry out any repairs, other than annual repairs, which he is bound to make to the accommodation by law or contract, the tenant may apply to the Munsif having jurisdiction for an order to the landlord for carrying out the same. The Munsif shall cause a notice to be served on the landlord to appear and show cause; within such time as may be fixed, against the application. (5) If the landlord does not appear In obedience to the notice or if he appears but fails to satisfy the Munsif as to why he should not he directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Munsif shall direct him to carry out the same within a time to be fixed. (6) If the landlord still tails to carry out the repairs in accordance with the direction under Subsection (5) the Munsif may require the tenant to submit an....
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....s not be a Court in the strict sense of exercising judicial power, and the mere existence of certain attributes, normally associated with Courts, would not necessarily confer that status upon such tribunal. In Shell Co. of Australia v Federal Commr. of Taxation, 1931 AC 275 the judicial Committee observed: "A tribunal is not necessarily a Court in this strict sense because it gives a final decision 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court 6. Nor because it is a body to which a matter is referred by another body." 29. These principles have been applied in Bharat Bank Ltd. v. The Employees of the Bharat Bank Ltd., (1950)NULLLLJ921SC ; Harinagar Sugar Mills Ltd v Shyam Sunder [1962]2SCR339 ; Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 162] 30. And, Bennet, J., in AIR1933All764 observed: "The fact that a presiding officer of a Civil Court is appointed to preside over an election court will not make the election court a civil court See also AIR1957A....
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.... tenant is entitled to institute a suit for fixation of rent. The suit is to be instituted in the "Court of the Munsif" or the "Court of the Civil Judge" depending upon the pecuniary valuation of the suit the statute does not say that the suit shall be instituted before the Munsif or the Civil Judge. Again Sub-section (5) of Section 5 speaks of rent fixed "by the Court" and not by the Munsif or the Civil Judge Under Section 7-C Sub-section (3), the deposit to be made by the tenant must be made in the "Court of the Munsif having jurisdiction in the area where the accommodation is situate". The landlord can withdraw the deposit on application made by him to the "Court" under Sub-section (4), and in certain cases the deposit will be held by the "Court" under Sub-section (5) for the benefit of the person entitled to it. These provisions were inserted by the same amendment Act as brought in Section 7-E. These provisions of Section 5 and Section 7-C bear marked contrast to the language employed in Section 7-E, where it is the Munsif upon whom Jurisdiction has been conferred. 37. Now this test indicates that the Legislature in e....
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....FB) upon the nature of the duties entrusted to the judicial officer, upon what are his powers and what the procedure he must follow, and whether when discharging these special duties, he act? in every way a Court of law would act. 41. See also Baburao Prahlad v. Hariharnath Kashinathrao. 42. The statute provides that in case the landlord neglects to carry out repairs, other than annual repairs, which he is bound to make to the accommodation by law or contract the tenant is entitled to apply to the Munsif having jurisdiction for an order to the landlord for carrying out the repairs. Upon receipt of the application, the Munsif causes notice to be served on the landlord to appear and show cause against the application. Upon the hearing of the application the Munsif is empowered to direct the landlord to carry out the repairs within a specified time Now the direction is unlike any which a Court issues. It is a direction to carry out repairs No mandatory injunction bearing this character will issue, and as was observed by Joyce, J.. in Attorney General v. Staffordshire County Council 1905 1 Ch 336: a mandatory order, as I understand the practice of the Court, will not be made to dir....
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....ifestly because the Munsif did not act as a Court that it became necessary to pro vide for an appeal expressly by this statute against the order under Sub-section (5) or (6) as if such order was a decree The original provisions of sub section (8) before they were replaced by the pre sent provisions by virtue of the U. P. (Temporary Control of Rent and Eviction Act. 1954. read is follows "(8) An appeal shall lie from the order of the Munsif under Sub-section (5) or (6) as if it were a decree and the order passed in appeal shall be final." 48. Now a decree has been defined by Sub-section (2) of Section 2 Civil Procedure Code and it is only a Court which can pass a decree the order passed by the Munsif not having been made by a Court, was inherently not a decree By fiction of law it became one and for the limited purpose of appealing From it. 49. In [1959]1SCR1177 the Supreme Court declared that the decision of a persona designation would not be open to appeal under the ordinary law applicable to derisions of Courts. Examining the question whether an appeal lay against an award made by an arbitrator under the Defence of India Act, it observed: "The position theref....
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....section (8), an order under Sub-section (5) or (6) would not have been open to appeal. 53. It is next pointed out that Section 7-E contemplates that an application by the tenant must be made to "the Munsif having jurisdiction", and that as the Act nowhere indicates which Munsif has jurisdiction, we must in this behalf fall back upon the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887 It is contended that as the provisions of the latter enactment when speaking of the jurisdiction of "the Munsif really mean the jurisdiction of "the Court of the Munsif", even so must we comprehend the words "the Munsif having jurisdiction" in Section 7-E as meaning the "Court of the Munsif having jurisdiction" 54. It is true, and this is a matter upon which I see no room for legitimate dispute, that the word ''Munsif' in the statute of 1887 means "the Court of the Munsif". The preamble of that Act indicates that it was enacted to consolidate and amend the law relating to Civil Courts in Bengal, Agra and Assam. Section 3 of the Act creates four classes of Civil Courts, the Court of the District Judge, the Court of the ....
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....ut by the statute. 57. In support of the contention that the Munsif under Section 7-E acts as a Court, reliance was placed upon a decision of the Supreme Court in 1961CriLJ740. Upon a true consideration of the judgment, however, it seems to me that no support can be derived from this decision The question before the Supreme Court was whether a District Magistrate empowered to grant permission to a landlord to sue a tenant for ejectment under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act was a persona designata, and it was held that he was not The Supreme Court railed upon the dictum of Schwabe, C. J., in Partbasarathy Naidu v. Koteshwara Rao AIR 1924 Mad 561, where he drew a distinction between "Judges acting as Courts or acting merely as persona designata, that is to say, persons selected to act in the matter in their private capacity and not in their capacity as Judges". To comprehend what was determined by the Supreme Court, it is necessary to appreciate what was decided by the Madras High Court in that case. The question before that Court was whether a District or Subordinate Judge, before whom an election petition was required to be presented b....