GANESH RAO v. SARPHINA D SOUZA BAI — 1975 DIGILAW 118 (KAR)

( 1 ) THIS revision petition under S. 50 of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act), has been referred by one of us lc a Divn Bench in view of the importance of the question arising for decision, namely, whether an Addl Dist Judge has jurisdiction to hear and decide an appeal under S. 48 of the Act. ( 2 ) THE petitioner herein is a tenant. The respondent herein had made, an application under S. 21 of the Act for evicting him from the petition premises. The learned Munsiff had dismissed their application. They preferred an appeal to the Disit Judge, S. Kanara, who transferred it to. the Addl dist Judge of the Dist Court, S. Kanara. The learned Addl Dist Judge reversed the decision of the learned Munsiff and made a decree for eviction of the tenant. Feeling aggrieved by the decision of the learned Addl Dist judge, the tenant has come up in revision. ( 3 ) SRI P. Ganapathy Bhat, learned Counsel for the petitioner, contended that the judgment of the learned Addl Dist Judge was void and without jurisdiction as an appeal under S. 48 of the Act can be heard and decided only by the Dist Judge having jurisdiction over the area in which the petition premis is are situate and that that section does not empower an Addl Dist Judge of a Dist Court to hear and decide such appeal. ( 4 ) SUB-SEC (1) of Sec. 48 of the Act, reads :" 48. Appeals.- (1) Notwithstanding anything contained in any law for the time being in force, every person aggrieved by an order under S. 14, S. 16, S. 17 or S. 21, passed by the Controller or the Court, may within thirty days from the date of the order, prefer an appeal in writing to the Dist Judge having jurisdiction over the area in which the premises are situate, (underlining italics is ours ). The above sub-section is in pari materia with S. 15 (1) (a) of the Mysore house Rent and Accommodation Control Act, 1951, which read : " 15 (1) (a ). . . . any person aggrieved by an order. . . . . . . . The above sub-section is in pari materia with S. 15 (1) (a) of the Mysore house Rent and Accommodation Control Act, 1951, which read : " 15 (1) (a ). . . . any person aggrieved by an order. . . . . . . . passed by the Court or the Controller may, within fifteen days from the date of the urder, prefer an appeal in writing to the Dist Judge having jurisdiction over the area in which tht house is situate, (underlining italics is ours ). ( 5 ) DEALING with a similar contention, namely, that an Addl Dist Judge had no jurisdiction to hear and decide an app. al under S. 15 of the Mysore house Rent and Accommodation Control Act, 1951, a Divn Bench of this court (of which one of us was a member) held in Haji M. P. Mohammad v. Sheik Ahmed , (1964) 2 Myslj. 458. that an Addl Dist Judge of a Dist Court is as much a dist Judge of thait Court as the Prl Dist Judge of that Court, that S. 15 of that Act made no distinction between the Prl Dist Judge and an Addl Dist judge of that Court and that an Addl Dist Judge of a Dist Court having jurisdiction over the area in which the house was situated, had jurisdiction to hear and decide an appeal under that Section in respect of such premises. The Divn Bench repelled the contention that since S. l9 that Act did not confer appellate authority on the Dist Court but only on the Dist judge, an Addl Dist Judge could not share that appellate power with the principal District Judge. ( 6 ) HOWEVER, Mr. Ganapathy Bhat contended that the decision in haji M. P. Mohammad's case (1) turned upon the provisions of Ss. 4a and 4b of the Mysore Civil Courts Act, 1883, which was in force when that case was decided and that the jurisdiction and powers of Addl Dist Judges are materially different under S. 5 of the Karnataka Civil Courts Act, 1964, which has superseded the Mysore Civil Courts Act, 1883. ( 7 ) WE have set out below the material portions of Ss. ( 7 ) WE have set out below the material portions of Ss. 4a and 4b of the Mysore Civil Courts Act, 1883, and S. 5 of the Karnataka Civil Courts act, 1964 : the Mysore Civil Courts Act, 1883 the Karnataka, Civil Courts Act, 1964 sec. 4a: Tse State Govt may by notification fix, and from time to time vary, the number of Judges to be appointed for a District. . . . . Court. Sec. 5 (1) : The State Govt may, on the recommendation of the High Court, appoint one or more Addl District Judges to a District Court for such period as it may deem necessary. S. 4b: When more than one Judge is appointed for a District. . . . . Court. one of the Judges shall be appointed the Principal Judge and the others Additional Judges. Each of the Judges appointed to a District. . . . Court may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force. Subject to the genital or special orders of the High Court, the Principal District judge may from time to time, make such arrangements as he thinks fit for the distribution of the business of the Court among the various Judges thereof. (2) The Addl District Judge, so appointed shall, subject to the genera, or special orders of the High Court, discharge all or any of the functions of the District Judge under this Act, or any other law for the time being in force which the District Judge may assign to him, and in the discharge of those functions, he shall exercise the same powers as the District Judge. ( 8 ) MR. GANAPATHY Bhat is right in contending that there is an important distinction between the powers of an addl Dist Judge under S. 4b of the Mysore Civil Courts Act, 1883, and those under S. 5 (2) of the Karnataka civil Courts Act, 1964. The former Section provided that each of the addl Dist Judges appointed to a Dist Court might exercise all or any of the powers conferred on that Court by that Act or any other law, for the time being in force. The former Section provided that each of the addl Dist Judges appointed to a Dist Court might exercise all or any of the powers conferred on that Court by that Act or any other law, for the time being in force. But, S. 5 (2) of the Karnataka Civil Courts Act do's not authorise an Addl Dist Judge appointed to, a Dist Court to exercise all or any of thcl powers conferred on that Court by that Act or any other law for the time being in force. What that sub-section empowers an Addl Dist judge of a Dist Court, is to discharge all or any of the functions of the dist Judge of that Court under that Act or any other law for the time being in force which the Dist Judge may assign to him. Unless the Dist Judge of a Dist Court assigns to an Addl Dist Judge of that Court any of the former's functions, the latter cannot exercise functions of the Dist Judg: even though he is an Addl Dist Judge of that Court. ( 9 ) BUT, the question is whether the aforesaid distinction between the powers of an Addl Dist Judge under S. 4b of the Mysore Civil Courts Act, 1883, and those under S. 5 (2) of the Karnataka Civil Courts Act, 1964, renders the ruling' in Haji M. P. Mohammad's case (l) inapplicable after that mysore Civil Courts Act, 1883, was superseded by the Karnataka Civil courts Act, 1964, ( 10 ) MR. GANAPATHY Bhat laid particular emphasis on the words " having jurisdiction over the area in which the premises are situated " which follow the, words the District Judge' in S. 48 (1) of the Act and he maintained that only the Dist Judge can be said to have jurisdiction over the area in which any premises are situate and that an Addl Dist Judge cannot be said to haye jurisdiction over any such area, since' his (the Addl dist Judge's) power under S. 5 (2) of the Karnataka Civil Court's Act, is only to exercise such functions as may be assigned to him by the Dist judge. In either words, the contention of Mr. In either words, the contention of Mr. Ganapathy Bhat was that since an Addl Dist Judge under the Karnataka Civil Courts Act, 1964, unlike his counterpart under the Mysore Civil Courts Act, 1g33, is not conferred all the, powers of the Dist Court and his power is only to. hear such cases as may be assigned to him by the Dist Judge having jurisdiction over the area in which the premises are situate, the Dist Judge alone has been authorised by S. 48 of the Act to entertain and decide appeals. ( 11 ) EVEN though an Addl Dist Judge has not been conferred under the Karnataka Civil Courts Act, 1964, the powers of the Dist Court, when once a case is assigned or transferred to him by the Dist Judge under S. 5 (2) of that Act, he has all the powers of the Dist Judge under that Act or any other law for 'the time being in force, in respect of that case, and he can hear and decide that case in the same manner as the Dist Judge could have dona. In the present case, as the Dist Judge, S. Kanara, had transferred the appeal (out of which this rivision petition has arisen) to the Addl Dist judge, the latter had jurisdiction to hear and decide it. ( 12 ) HOWEVER, Mr. Ganapathy Bhat contended that though S. 5 (2) of the Karnataka Civil Courts Act, 1964, empowers an Addl Dist Judge to discharge all or any of the functions of the Dist Judge under that Act or any other law for the time being in force, the Addl Dist Judge cannot exercise jurisdiction of the Dist Judge under S. 48 of the Act for two reasons. The first reason according to Mr. Ganapathy Bhat, is that the Act is a self- contained one and that S. 48 of the Act which confers the appellate power on the Dist Judge having jurisdiction over the area in which the premiss are situate, excludes the application of the general provision in S. 5 (2) of the Karnataka Civil Courts Act, 1964, which empowers an Addl Dist Judge to discharge all or any of the functions of the Dist Judge. ( 13 ) SUPPORT for the above contention was sought to be derived from certain observations of Somanath Iyer, J (as he then was), in Winnifred mathias v. Louisa Correa, ' (1968) 1 Myslj573. There, it was contended that in spite of s. 15 of the, Mysore House Rent and Accommodation Control Act, 1951, providing that an appeal from an order of the Court of the Munsiff lies to the dist Judge, an appeal from a decree for eviction passed by the Court of the Munsiff would lie to the Court of the Civil Judge, since S. 20 of the karnataka Civil Courts Act, 1964, provides that appeals from decrees and orders passed by a Munsiff in original suits and proceedings of a civil nature shall lie to the Court of the Civil Judge and that an appeal from a decree or order of the Court of Munsiff on an application u s. 21 of the Act, lies to the Court of the Civil Judge and not the Dist Judge. While repelling that contention, Somnath Iyer, J (as he then was), observed that the Act is a complete and exhaustive code with respect to control of rents and eviction and the, other masters in regard to which that legislation was enacted, that it is that special law by which all proceedings arising under that Act are governed, and that it is that special law which holds the field to the exclusion of the general law which the Karnataka Civil Courts Act is. ( 14 ) MR. Ganapa,thy Bhat argued that from the aforesaid observations of His Lordship it follows 'that, the provision in S. 48 of the Act that an appeal shall lie to, the Dist Judge, should ho,ld the field to the exclusion of the piovision in Section 5 (2) of the Karnataka Civil Courts Act that an addl Dist Judge may exercise all the functions of the Dist Judgs in cases assigned to him by the latter. ( 15 ) WE ar_ unable to accept the above contention of Mr. Ganapathy bhat. ( 15 ) WE ar_ unable to accept the above contention of Mr. Ganapathy bhat. The aforesaid observations in Haji M. P. Mohammad's case (1) that s. 15 ot the Mysore House Rent and Accommodation Control Act, made no distinction between the Prl Dist Judge of a Dist Court and an Addl Dist judge of that Court, are equally applicable to S. 48 of the Act which also does not make any distinction between the Principal District judge and an Additional District Judge. As pointed out therein by Somnath Iyer, J (as he then was), the definite article, 'the', preceding the words 'district Judge', has no other purpose than to identify the particular dist Judge having jurisdiction over the area in which the premises are situate and the purpose of that definite article is not to specify the Prl dist Judge of the Dist Court. We are unable to find anything in S. 48 of 'the Act, which expressly or by necessary implication, requires that an appeal under that Section should be heard and decided by the Prl Dist Judge only and not by an Addl Dist Judge. ( 16 ) THE second ground on which Mr Ganapathy Bhat contended that s. 5 (2) of the Karnataka Civil Courts Act, 1964, cannot clothe an Addl Dist judge with the jurisdiction of the Dist Judge', was that S. 48 of the Act provides for appeal to the District Judge and tha,t an Additional district Judge cannot be regarded as the District Judge. Support for this contention was sought to be derived from certain observations of the Supreme Court in Hari Chand v. Balala Engineering co, AIR. 1969 SC. 483. . There, the validity of an order of requisitioning made by an Addl dist Magistrate!, in exercise of the powers under the Defence of India Act, 1962, came up for consideration. The Central Govt, by its notification dt. 13-12-1962, in exercise of the powers under S. 40 (1) of that Act, had authorised the Dist Magistrates to exercise the powers of requisitioning under S. 29 of that Act. The exercise of that power by the Addl Dist magistrate, was sought to be justified under S. 10 (2) of the Crlpc, 1898. The Central Govt, by its notification dt. 13-12-1962, in exercise of the powers under S. 40 (1) of that Act, had authorised the Dist Magistrates to exercise the powers of requisitioning under S. 29 of that Act. The exercise of that power by the Addl Dist magistrate, was sought to be justified under S. 10 (2) of the Crlpc, 1898. Tne state Govt by a, notifica,tion had authorised the Addl Dist Magistrate to exercise all or any of the powers of the Dist Magistrate under tha,t Coda or any other law for the time being in force. The Supreme Court held that even though the Addl Dist Magistrate had been empowered under S. 10 (2), crlpc. 1898, to exercise all or any of the powers of the Dist Magistrate, the Dist Magistrate and the Addl Dist Magistrate were two different and distinct authorities, that by no stretch of reasoning could an Addl Dist magistrate be cajled the; Dist Magistrate and that the Addl Dist Magistrate could not be held to be rompetent to exercise the powers of the Dist magistrate under S. 10 (2) of Crlpc, 1898. ( 17 ) THE main reason given by the Supreme Couurt for holding that the Addl Dist Magistrate was not competent to exercise the powers of the dist. Magistrate, is contained in para 9 of the judgment, which reads :" It has not been disputed that the powers of requisitioning are of a very drastic nature and involve the fundamental rights in respect of property guaranteed under Art. 19 (1) (g) of 'the Constitution. The central Govt while making the delegation of its power under S. 29 of the Act must ordinarily be presumed to be fully conscious of this aspect of the matter and it was for that reason that an officer or authority of the high status of a Dist Magistrate in the district was empowered to exercise that power. " ( 18 ) THE above reasoning of the Supreme Court has, in our opinion, no application to the exercise of the normal judicial power to hear and decide appeals conferred by S. 48 of the Act. ( 19 ) MOREOVER, the Addl Dist Magistrate is of a lower rank than the dist Magistrate and subordinate to the latter. But in Karnataka State judicial Service, there is no separate cadre of Addl Dist Judges. . ( 19 ) MOREOVER, the Addl Dist Magistrate is of a lower rank than the dist Magistrate and subordinate to the latter. But in Karnataka State judicial Service, there is no separate cadre of Addl Dist Judges. . Both the Dist judge and the Addl Dist Judge are of the same cadre. Where there are more than one Dist Judge in a Dist Court, the senior of them will be designated as the Prl Dist Judge and the others will be designated as Addl Dist judge or Judges. ( 20 ) THERE is nothing in S. 48 of the Act which indicates that the appellate jurisdiction conferred on the Dist Judge thereunder, should be exercised only by the Prl Dist Judge of a Dist Court and not by an Addl Dist judge of that Court. ( 21 ) THERE is one more reason to hold that an Addl Dist Judge to whom an appeal under Sec. 48 of the Act has been transferred by 'the Prl dist Judge, has power to hear and decide such appeal. Though Sec. 48 of the Act designates the Dist Judge and not the Dist Court as the appellate authority, the conferment of the appellate jurisdiction on the Dist Judge, appears to us to be by virtue of his presiding over the Dist Court and the dist Judge is no,t a, persona designata. ( 22 ) IN Central Talkies Ltd v. Dwaraka Prasad, AIR. 1961 SC. 606, Hidayathullah, J (as he then was) who spoke for the Court, said that a persona designata is" a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character ". His Lordship quoted with approval the observations of Schwabe, cj, in Parathasasaradhi Naidu v. Koteswara Rao, AIR. 1924 Mad. 561 that persona designatae are"persons selected to act in their private capacity and not in their capacity as Judges". ( 23 ) IN construing the expression 'the Munsiff exercising jurisdiction' under Sec. 7e of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, Desai, CJ, whq delivered the leading opinion of the Full Bench in chatur Mohan v. Ram Behari, AIR. 1964 All. 562. ( 23 ) IN construing the expression 'the Munsiff exercising jurisdiction' under Sec. 7e of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, Desai, CJ, whq delivered the leading opinion of the Full Bench in chatur Mohan v. Ram Behari, AIR. 1964 All. 562. observed thus at pages 564 and 565 :" I am not enamoured of the distinction made between ' a Munsiff' and ' a Court of Munsiff' and of the argument based upon it to, the effect that ' a Munsiff acts as a persona designata, whereas ' a Court of Munsiff' acts as a Court constituted under the Bengal, Agra and assam Civil Courts Act----When the Legislature referred in S. 7e to the ' Munsiff having jurisdiction', it does not sem to have, meant the person presiding over a Court of Munsiff as distinct from the Court and to have referred to the fact of his presiding over the Court simply to describe him. He seems to have bean selected on account of his presiding over a Court of Munsiff. "the above observation will, in our opinion, apply with equal force to the expression ' the Dist Judge having jurisdiction over the area in which the premises are situate' occurring in S. 48 of the Act. Though the term 'district. Judge' has been used in S. 48 of the Act, the appeal provid-d thereunder is in reality to the Court of the Dist Judge. ( 24 ) AS pointed out by the Supreme Court in Natvarlal Sewing Thread co Ltd v. James Chadwick N Bros , AIR. 1953 SC. 357. where a new jurisdiction is given loan established Court without more, it imports that the ordinary incidents and the ordinary rulls of procedure of that Court are to attach to exercise of such jurisdiction also. ( 25 ) UNDER S. 5 (2) of the Karnataka Civil Courts Act, 1964, the Dist judge of a Distt Court has power to transfer or assign to an Addl Dist Judge; of that Court any suit appeal or proceeding of a civil nature on the former's file. ( 25 ) UNDER S. 5 (2) of the Karnataka Civil Courts Act, 1964, the Dist judge of a Distt Court has power to transfer or assign to an Addl Dist Judge; of that Court any suit appeal or proceeding of a civil nature on the former's file. In the light of the, aforesaid pronouncement by the Supreme Court in the National Sewing Thread Co's case (7) the same power to transfer or assign to an Addl Dist Judge, must be held to be applicable to the special jurisdiction given by S. 48 of the Act to the Dist Judge, as there is nothing in that section which, expressly or by necessary implication, forbids transfer or assignment of an appeal thereunder to an Addl Dist Judge. ( 26 ) IN Ganapeti v. . Mahadeo, AIR 1949 Nag. 408. a question arose whether an Addl dist Judge can exercise the powers of a Dist Judge in the matter of granting probate of a will. The Divn Bench (consisting of Bose, CJ and Mangalamurthy , J), observed that as the Addl Dist Judges had been exercising jurisdiction in granting probate, for many years, if there was any dqubt on the point, then it should be resolved so as to hold that their Jurisdiction was proper. However, their Lordships held that in that case there was not much doubt because in their view the Judges of the Dist Court include not only the Dist Judges properly so termed but also all the Addl Dist Judges appointed to that Court. ( 27 ) ADDL Dist Judges have been hearing appeals under S. 48 of the act ever since the Act came into force in the year 1961. Even if there should be any doubt as to their jurisdiction to hear such appeals, it should be resolved so, as to hold that they have such jurisdiction. But, in our opinion, there, can be no serious doubt about their jurisdiction. ( 28 ) FOR the reasons started above, we hold that an Addl Dist Judge of the Dist Court having jurisdiction over an area, in which the premises are situate, has jurisdiction to hear and decide! an appeal under S. 48 of the Act, when such appeal has been transferred or assigned to him bj the Dist judge of that Court. ( 29 ) WE shall now proceed to consider the attack of Mr. an appeal under S. 48 of the Act, when such appeal has been transferred or assigned to him bj the Dist judge of that Court. ( 29 ) WE shall now proceed to consider the attack of Mr. Ganapathy bhat on the merits of the appellate judgment of the learned Addl Dist Judge. All the contentions of Mr. Ganapathy Bhat therefore fail and we dismiss this petition, but without costs. However, having regard to accute scarcity of accommodation in mangalore City, we grant time to the tenant (the petitioner herein) till 30-6-1976 to vaeat the petition premises. --- *** --- .