G LAKSHMI AMMAL Vs. ELUMALAI CHETTIAR

JUDGEMENT

(1.) The point involved herein is whether by invoking Section 24(1)(b) C. P. C. a proceeding pending before Rent Controller constituted under Act 18 of 1960 (hereinafter referred to as the Act) can be transferred to another Rent Controller The main opposition to this petition is stemmed on the claim that the Rent Controller and Appellate Authority constituted under Act 18 of 1960 are "persona designata" and they are not courts which are subordinate to the High Court and that they will not come within the expression 'other proceedings' as contemplated under Sec. 24(1)(b) C. P. C. It is further claimed that when an application filed for transfer under Rule 17 of the Rules framed under the Act has been rejected, the present application under Section 24 C. P. C. is not maintainable.

(2.) On the first point as to whether the Rent Controller is a court or persona designata, Mr. Sivamani relies upon the following decisions to contend that whatever view might have been taken hitherto, in view of the decision rendered in when the Rent Controller functions like a civil court, it cannot any longer be held that he functions as a persona designata. In, support of his contention, he refers to the decision of the Division Bench arising under the Madras Buildings (Lease and Rent Control) Act 15 of 1946 in ILR (1950) Mad 28: (AIR 1949 Mad 776). Where in it was held that the court of Small Causes which was constituted as an appellate authority under the Act, was only a court. The expression 'authorities' used in Section 12(1)(4) of the Act was held to cover courts already in existence". Relying upon the decision reported in 1949 Mad WN 43: (AIR 1949 Mad 785) which also arose under the earlier Act, he claims that 'Judge of the Small Cause Court who is authorised to function as Rent Controller, is not a persona designata, since he was functioning as part of the Small Case Court. By referring to the decision in Central' Talkies Ltd, Kanpur v. Dwaraka Prasad, in which the scope of the Powers exercised by the District Magistrate under U. P. Act III of 1947, was, considered and wherein it was held that permission granted by Additional District Magistrate pursuant to the notification made by the State investing him with all the powers of the District Magistrate under the Code as well as under any other law including the Eviction Act, made him a court and not a persona designata. In dealing with what functionaries can be treated as persona designata, it was held that- "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" is a persona designata, What was held in Parthasarathy Naidu v. K6teswara Rao, ILR 47 Mad 369: (AIR 1924 Mad 561, (FB) to the effect that ' persona designata' are persons selected to act in their private capacity and not in their capacity as Judges, was adopted in that decision. Proceeding further he relies on the decision in Pitambar v. Hargovanbhai, for understanding the scope of the word 'A Court of Small Causes' occurring in Sec. 24(4) C. P. C. wherein it was held that it would include both Court of Small Causes constituted under the Provincial Small Cause Courts Act as well as a court invested with the jurisdiction of a Court of Small Causes.

(3.) The decision of the Supreme Court in Ramchandra v. U. P. State, was relied upon by him for the proposition that where a special or local statute refers to a constituted court as a Court, and does not refer to the Presiding Officer of the court the reference cannot be said to be of a persona designata and that the provisions of the Civil Procedure Code applied generally to a proceeding before a civil court arising out of a reference made by a Magistrate under Section 146(1) Cr. P. C. and hence the term 'Proceeding' used in Section 24 C. P. C. is comprehensive enough to include all matters coming UP for judicial adjudication and not confined to civil proceedings alone, and therefore, when the Magistrate makes a reference it relates to a civil court and there is no question of persona designata involved therein. To strengthen his contention that Rent Controller is only a court he relied on the decision in Malleswara Rao v. Rangapaniah wherein it was held that Rent Controller being a Court Section 5 of the Limitation Act would apply. Likewise, a Full Bench decision, in Surindra Mohan v. Dharam Chand, AIR 1971 J and K 76 is also relied upon to contend that when Chief Judicial Magistrate is appointed by designation, and not by name, he is not a persona designata but only a court, The Full Bench held that, the following aspects had to be taken into account to find out the nature of powers exercised and they being (1) nature of duties performed and the manner in which appointment is made-, (2) whether appointment is by name in his individual capacity or with reference to his post; (3) whether the authority selected is a member of the court or not, and (4) whether he has been empowered to act judicially and possess all the trappings of a court and is to abide by the rules of evidence and dispose of the matter like a court. If on these aspects considered the ultimate conclusion is that the named authority is to function like a court, it cannot any longer be claimed that he is a persona designata.