Kuppa Goundar vs Joint Sub-Registrar, III, Salem and Others

Jagadisan, J.—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 28-

11-1959 passed under the following circumstances:

One Ponnuswami Gounder filed Original Enquiry No. 1 of 1959 before the Joint Sub-Registrar III, Salem, claiming compulsory registration of a

mortgage document dated 12-2-1959 under S. 73 of the Indian Registration Act. His case was that the mortgage document was executed by on

Ellappa Gounder and his brother, Kuppa Gounder (Ellappa Gounder also acting as guardian of his minor son, Thangavelu) having received

consideration of Rs. 4600 in cash.

It was stated by this Ponnuswami Gounder that after receiving consideration and after executing the mortgage bond referred to, the executants

promised to have the document registered on or before 16-2-1959. 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 30-3-1959 which was received by the

executants on 6-4-1959. No reply was sent to this notice.

Thereafter Ponnuswami filed a petition for compulsory registration on 14-5-1959 before the Joint Sub Registrar, III, Salem, who issued summons

to the executants to appear before him on 26-5-199 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 provided 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 Gounden was examined as R. W. 1. He denied having executed the document or of having received a sum of

Rs. 4600 alleged to have been paid. The Joint Sub Registrar further examined the karnam of Nalikalpatti the scribe of the document and karnam of

Parapatti one of the attestors to the document 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 contentions 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 Kuppanna 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 Sennimalai 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 Gounden feeling himself aggrieved by the said order

of the Joint Sub Registrar 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 S. 36 and S. 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, desire 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 S. 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 notice 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 Civil Procedure Code, 1908.

The contention raised is that S. 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 S. 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 O. 16 R. 14 C. P. Code. Rule 14 of O. 16 of the C. P. 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 CPC can be attracted.

This contention overlooks the specific words in S. 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 S. 75(4) of the Registration Act attracts all the provisions of the CPC in respect of summoning and enforcing attendance of witnesses

and that, therefore, the provisions of O. 16, R. 14 C.P.C. 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 CPC 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 filed 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. 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.

Writ petition dismissed.