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1960 DIGILAW 1 (MAD)

Kuppa Goundar v. Joint Sub-Registrar, III, Salem

1960-01-05

JAGADISAN

body1960
Order.- This is a writ petition for the issue of a writ of certiorari to quash the order of the Joint Sub-Registrar, III, Salem, dated 28th November, 1959, passed under the following circumstances: One Ponnuswami Goundar filed Original Enquiry No. 1 of 1959 before the Joint Sub-Registrar, III, Salem, claiming compulsory registration of a mortgage document, dated 12th February, 1959, under section 73 of the Indian Registration Act. His case was that the mortgage document was executed by one Ellappa Goundar and his brother, Kuppa Goundan (Ellappa Goundan also acting as guardian of his minor son, Thangavelu) having received consideration of Rs. 4,600 in cash. It was stated by this Ponnuswami Goundan that after receiving consideration and after executing the mortgage bond referred to, the executants promised to have the document registered on or before 16th February, 1959. Finding that the executants did not keep up their promise and fulfil their obligation to have the document registered, Ponnuswami issued a registered notice through his lawyer on 30th March, 1959, which was received by the executants on 6th April, 1959. No reply was sent to this notice. Thereafter Ponnuswami filed a petition for compulsory registration on 14th May, 1959, before the Joint Sub-Registrar, III, Salem, who issued summons to the executants to appear before him on 26th May, 1959, to admit the document and have it registered. The respondents received the summons but failed to appear before the Joint Sub-Registrar. Alleging that the executants wilfully absented themselves before the Joint Sub-Registrar Ponnuswami filed an original petition, O.E. No. 1 of 1959, in accordance with the provisions of the Indian Registration Act seeking an enquiry into the matter as provideed for therein. Ellappan and Kuppa Goundan the executants of the mortgage bond were the respondents in O.E. No. 1 of 1959 which as stated above was instituted by Ponnuswami. The executants, however, denied the execution of the document as alleged by Ponnuswami and also denied receipt of consideration and filed counter-statements before the Joint Sub-Registrar. Therefore an enquiry became necessary as to whether the mortgage document was executed by the executants as alleged by the mortgagee Ponnuswami. The Joint Sub-Registrar held an enquiry in the course of which he examined Ponnuswami, as P.W. 1 and Ramaswami and Sennimalai as P.Ws. 2 and 3. One of the executants Kuppa Goundan was examined as R.W. 1. Therefore an enquiry became necessary as to whether the mortgage document was executed by the executants as alleged by the mortgagee Ponnuswami. The Joint Sub-Registrar held an enquiry in the course of which he examined Ponnuswami, as P.W. 1 and Ramaswami and Sennimalai as P.Ws. 2 and 3. One of the executants Kuppa Goundan was examined as R.W. 1. He denied having executed the document or of having received a sum of Rs. 4,600 alleged to have been paid. The Joint Sub-Registrar further examined the Karnam of Nallikalpatti the scribe of the documents and the Karnam of Parapatti one of the attestors to the documents as Court witnesses 1 and 2. It is not necessary to refer to the substance of the evidence tendered before the Joint Sub-Registrar in the course of his enquiry. During the enquiry the Joint Sub-Registrar felt that having regard to the contention raised before him the evidence of one Sennimalai father-in-law of Ponnuswami, the person in whose favour the mortgage was executed was necessary to which course there was apparently opposition on the part of Kuppa Goundan the joint executant of the mortgage document. As neither side was willing to his being examined the Joint Sub-Registrar thought it fit to issue summons to Senninalai to give evidence before him as Court witness. The order of the Joint Sub-Registrar in so far as it is material is as follows: " The Court witness Sennimalai is a very important man in connection with this case: but he has not been examined either by the applicant or the counter-petitioner. I consider his evidence important to find out the truth in this case." Kuppa Goundan feeling himself aggrieved by the said order of the Joint Sub-Regitrar has filed the above writ petition challenging the jurisdiction of the Joint Sub-Registrar to pass such an order. The learned Advocate for the petitioner contends that the jurisdiction of the Joint Sub-Registrar to hold the enquiry in respect of compulsory registration of the document presented before him is circumscribed by the provisions of sections 36 and 75 (4) of the Indian Registration Act and that having regard to the said provisions, he has no power to examine any witness of his own styled as Court witness. Section 36 reads as follows: " If any person presenting any document for registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document the registering officer may in his discretion, call upon such officer or Court as the (State) Government directs in this behalf to issue a summons requiring him to appear at the registration office, either in person or by duly authorised agent, as in the summons may be mentioned, and at a time named therein." Section 75 (4) is in these terms:- " The Registrar may for the purpose of any enquiry under section 74 summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908. The contention raised is that section 36 of the Registration Act provides only for examining all witnesses whose presence or testimony is necessary for the registration of Such document according to the desire of the person presenting the document for registration and that it does not provide for witnesses being examined at the instance of the Officer before whom the document is presented for registration. The language of section 75 (4) of the Act is wide and it enables the Registrar to summon and enforce the attendance of witnesses as if he were a civil Court. But the contention on behalf of the petitioner is that this section only provides for the mode of summoning and enforcing the attendance of witnesses and does not prescribe the jurisdiction of the officer to summon witnesses. The power of the Civil Court to summon witnesses is contained in Order 16, rule 14 of the Civil Procedure Code. Rule 14 of Order 16 of the Civil Procedure Code provides that a Court may of its own motion and accord summon witnesses at any time as it thinks fit or necessary. The contention of the learned counsel for the petitioner is that the Joint Sub-Registrar is not a civil Court to whom the provisions of the Civil Procedure Code can be attracted. The contention of the learned counsel for the petitioner is that the Joint Sub-Registrar is not a civil Court to whom the provisions of the Civil Procedure Code can be attracted. This contention overlooks the specific words in section 75 (4) of the Registration Act, namely as if he were a civil Court which show that the powers exercisable by the enquiring Registrar in respect of summoning and examining witnesses are exactly those that are conferred upon a civil Court. Otherwise the significance of the words “ As if he were a civil Court” will be entirely lost. I am of opinion that the words “ As if he were a civil Court” occurring in section 75 (4) of the Registration Act attracts all the provisions of the Civil Procedure Code in respect of summoning and enforcing attendance of witnesses and that, therefore, the provisions of Order 16, rule 14, Civil Procedure Code, referred to above apply with full force to any enquiry before the Sub-Registrar for compulsory registration of documents presented before him. Assuming, however, that the provisions of the Civil Procedure Code do not in terms apply in respect of the aforesaid enquiry the question still remains whether the enquiring officer is in any way precluded from examining witnesses whom he considers necessary or material for the purpose of investigating the truth. No doubt, a tribunal functioning under a special enactment has got its jurisdiction circumscribed by the provisions of the Act creating it but this delimitation of jurisdiction is only with regard to matters to be decided and adjudicated upon by it. It cannot relate to the mode of the enquiry which the Tribunal can conduct to enable it to function under the special enactment. Quasi-judicial tribunals entrusted with the duties of decision and adjudication have really an uncharted field of enquiry which they can resort to untrammelled by strict rules of procedure or evidence. That does not mean that they can hold a roving enquiry or act contrary to the rules of natural justice. Such tribunals are free to function within the limits of their jurisdiction without being obliged to follow any particular or special form of enquiry or procedure. There is no prohibition under the Indian Registration Act against the Joint Sub-Registrar summoning witnesses of his own accord, in his anxiety to find out the truth. Such tribunals are free to function within the limits of their jurisdiction without being obliged to follow any particular or special form of enquiry or procedure. There is no prohibition under the Indian Registration Act against the Joint Sub-Registrar summoning witnesses of his own accord, in his anxiety to find out the truth. In fact in the present case the Joint Sub-Registrar has categorically observed that he feels the necessity for examining Sennimalai to find out the truth. It would be a travesty of justice if he cannot do so by his being told that he must find out the truth of the case only through the evidence of witnesses whom the parties choose to place before him. I am of opinion that the Joint Sub-Registrar has not in any way exceeded his jurisdiction by holding that Sennimalai should be examined as a Court witness. The statutory provision of the Indian Registration Act and the wide and free scope of enquiry permissible to tribunals in general confer such jurisdiction upon him. I, therefore, overrule this contention raised on behalf of the petitioner. The Writ Petition fails and is dismissed. R.M. ----------------- Petition dismissed.