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Judgment
Padmini Jesudurai, J.—The petitioners, who are respectively accused 1 to 3 in C.C. Nos. 12454, 12455 and 12556 of 1986 pending
before the Additional Chief Metropolitan Magistrate, Madras, on complaints, presented by the respondents herein, seek a special order of this
Court under S. 121 of the Evidence Act in each case directing the then Rent Controller (XII Judge. Court of Small Causes), Madras to give
evidence as a defence witness regarding the proceedings of 25.3.1986 in R.C.O.P. Nos. 1970, 1973 and 1974 of 1983 heard by him.
The respondent in Crl. M.P. No. 2322 of 1988 will hereinafter be referred to as the first respondent; the first respondent in Crl. M.P. No. 2323
of 1988 as the second respondent and the respondent in Crl. M.P. No. 2324 of 1988 as the third respondent.
Facts necessary for the disposal of this petition briefly are as follows: On 19.1.1985 petitioners 1 and 2 had purchased the properties in Door
No. 6, Nagappa Mudali Street, Pudupet, Madras-2 which they claimed included the three shops occupied by the respondents. On 21.1.1985
petitioners 1 and 2 sent notices to the respondents requiring them to attorn the tenancy in their favour. On 12.2.1985 the respondents sent reply
that the Door No. in which they were having their shops was really Door No. 26, Harris Road, Pudupet, Madras-2 which was not included in the
alleged sale in favour of petitioners 1 and 2 and that, therefore, the respondents were the owners of the shops and were not tenants under any one,
much less the vendor and there was no need to attorn any tenancy in favour of petitioners 1 and 2. Thereafter, a rejoinder appears to have been
sent and also a reply to the rejoinder. On 25.4.1986, the first respondent, since petitioners 1 and 2 were trying to demolish the wall separating their
property and his property, filed O.S. No. 3127 of 1986 in the Court of the IX Assistant City Civil Judge, Madras and obtained an interim
injunction.
Petitioners 1 and 2 appealed in the Civil court and filed a counter stating that they had obtained an order of eviction against the first respondent
herein in R.C.O.P. No. 1970 of 1983 on the file of the XII Rent Controller, Court of Small Causes, Madras on 31.3.1986. The first respondent
was surprised and shocked, since he had no prior intimation about the R.C.O.P. and about the order of eviction. He along with respondents 2 and
3, rushed to the Rent Court and found from the records of the Court that R.C.O.P. Nos. 1970, 1973, and 1974 of 1985 had been filed against
the respondents that though initially in all the three R.C.O.Ps. substituted service had not been effected on 21.3.1986, and the reports of the bailiff,
the third petitioner herein, as also the endorsements of the Bench Clerk showed the above fact later on 25.3.1986 the endorsements of the Bench
Clerk had been struck off and instead fresh endorsements that substituted service was effected, had been made and on the same day, the
respondents herein were set ex parte and the matter was posted to 31.3.1986. The respondents were not served with any notice nor was any
substituted service effected on 25.3.1986. The Court records clearly showed that the three petitioners, without any order of the Rent Controller,
had colluded together and had created false records as if the third petitioner had effected substituted service on 25.3.1986 in the three R.C.O. Ps.
and had been responsible for orders of eviction being passed ex parte. Once the third petitioner had filed his first report on 21.3.1986 that
substituted service could not be effected, petitioners 1 to 3 could not in law again effect substituted service on 25.3.1986. This was done without
the knowledge of and without orders from the Rent Controller. On these averments, the respondents filed a complaint each, against the petitioners,
which are now pending before the Additional Chief Metropolitan Magistrate, Madras as C.C. Nos. 12454, 12455 and 12456 of 1986
respectively, and taken on file by the said Magistrate for offences under Ss. 192, 193,208, 209, 210, 463, 465, and 468 I.P.C.
The case of the petitioners was that though initially on 21.3.1986 substituted service was not effected by the third petitioner for want of
identification of the premises, on 25-3-1986 when the cases were taken up in open court, since learned counsel for petitioners 1 and 2 felt
aggrieved that inspite of the clear address, the third petitioner had failed to do his duty properly and the Rent Controller Sri Abdul Wahab, sent for
the third petitioner and the Deputy Nazir, Selvi Vatsala, directed the third petitioner, to again visit the premises along with the first petitioner and
affix summons on the premises so identified by the first petitioner. Thereupon the third petitioner took the first petitioner and effected substituted
service in the premises identified by the first petitioner. The third petitioner made a report about the service to the Deputy Nazir, who had noted in
the R.C.O.P, Process Entry Register that under the oral instructions of the 12th June one process was again affixed on 25-3-1986 by the third
petitioner. Following that, the Bench Clerk also struck out the original endorsement and made a fresh endorsement that substituted service was
effected and the matter was posted to 31.3.1986 for ex parte proof. This happened in all the three R.C.O. Ps.
The respondents examined witnesses on their side and and the witnesses had been cross-examined by the petitioners and the trial Court had
framed charges against the petitioners for offences under Ss. 193, 208, 200, 210, 465 and 468, I.P.C.
The present petition is filed under S. 121 of the Evidence Act seeking a Special order directing Sri Abdul Wahab, the then Rent Controller, to
give evidence as a defence witness since his evidence is necessary to establish the defence, which to a great extent, is already borne out from the
records of the court. Learned counsel for the petitioners reiterated the averments made in his petition which necessitate the passing of the special
order.
Per contra, Thiru P. Sinthamathar, learned counsel for the respondents contended, that the Rent Controller is not a Judge and is not a
subordinate to the High Court and at any rate the circumstances of the case, do not warrant examination of the Rent Controller as a defence
witness and passing the special order permitting him to depose.
It would be useful to extract S. 121 of the Indian Evidence Act, 1872.
No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate be compelled to answer any questions as to
his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but
he may be examined as to other matters which occurred in his presence whilst he was so acting.
From a reading of the above provision, we find that the three questions arise for determination:
(i) Is the Rent Controller appointed under the Tamil Nadu Buildings (Lease and Rent Control) Act a Judge;
(ii) Is he a subordinate to this Court; and
(iii) whether, in the circumstances of these cases special orders are necessary?
The first question is whether a Rent Controller appointed under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Act 18 of
1960) is a Judge. The term ""Judge"" is not defined in the Indian Evidence Act, but is defined in S. 19, I.P.C, as follows:
The word ""Judge"" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give,
in any legal proceeding, Civil or Criminal, a definitive Judgment, or judgment which, if not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be definitive, or;
Who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
Court of Justice"" is defined in S. 20, I.P.C, as follows:-
The words ""Court of Justice"" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to
act judicially as a body, when such Judge or body of Judges is acting judicially.
The Evidence Act, however, gives a definition of the term ""Court"" in S. 3.
Court"" includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence.
This definition is an inclusive definition and includes all persons legally authorised to take evidence. A combined reading of S. 121 of the Evidence
Act and the definition of ""Court"" in S. 3 indicates that a judge under the Indian Evidence Act is one, who is legally authorised to take evidence. The
term ""evidence"" itself has been defined in S. 3 of the Indian Evidence which is as follows:
Evidence"" means and includes:- (1) All statements which the court permits or requires to be made before it by witnesses, in relation to matters of
fact under inquiry; such statements are called oral evidence:
(2) All documents produced for the inspection of the court; such documents are called documentary evidence.
It is clear therefore, that evidence includes oral, as well as documentary evidence. That the Rent Controller is legally authorised to take. evidence,
is clear from the Rules framed under the Tamil Nadu Buildings (Lease and Rent Control) Act, Rule 12(2), which lays down the procedure to be
followed for the disposal of applications presented under the Act, authorises the Rent Controller to record a brief note of the evidence of the
parties and witnesses if any, examined on either side, and upon the evidence so recorded and after consideration of any documentary evidence,
which may be produced by the parties, pass orders on the application. Rule 16(2) empowers the appellate authority, to make further inquiry, by
either taking additional evidence or by requiring such evidence, to be taken by the Rent Controller.
It will be useful now, to briefly refer to certain decisions of the various courts, which had to deal with similar question relating to other persons
performing judicial or quasi-judicial functions. In Brajnandan Sinha Vs. Jyoti Narain, the Supreme Court held that the Commissioner appointed
under the Public Servants (Inquiries) Act, 1850, was a court within the meaning of the Contempt of Courts Act, 1952. It was made clear that the
essential characteristic of a court is that it should have power to give a decision or a definitive judgment which has finality and authoritativeness.
In Vidya Devi Dass Vs. Firm Madan Lal Prem Kumar, , a Full Bench of the Punjab and Haryana High Court held that an Appellate Authority
under the Punjab Rent Restriction Act is a civil court for the purposes of S. 195(1)(b), 476 and 479A Crl. P.C, 1898 (S.340 of the present
Code).
Following the above decision, in Baulat Ram v. Girdhari LaL 1969 Cri. L.J. 1204, a single Judge, of the Same court held that a Rent
Controller under the same Act was also a civil court for the purpose of S. 195(1)(b) and (3) of the present Code of Criminal Procedure.
The Supreme Court in Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank Ltd. and Another, held that an Assistant
Registrar, discharging the functions of a Registrar under S. 48 r/w. 6(2) of the Bihar and Orissa Co-operative Societies Act, is a court. The
essential test laid down by the Supreme Court in Brajnandan Singa''s case was reiterated and applied.
Again in Chandrapal Singh and Others Vs. Maharaj Singh and Another, the Supreme Court held that a Rent Controller under the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act 1972) is a court for the purpose of Ss.195(1)(b)(i) and (3), Crl. PC, not only on the basis
of the tests laid down in the earlier decisions, but particularly in view of S. 34(2) of that Act, which stated that the Authorities holding inquiries or
hearing appeals under the Act, would be deemed to be Civil Courts within the meaning of Ss. 480 and 482, Crl. P.C, 1898 and the proceedings
would be judicial proceedings within the meaning Ss. 193 and 228, I.P.C.
A reading of the relevant statutory provisions, as well as the decided cases, make it clear that a Rent Controller appointed under the Tamil
Nadu Act, is a Judge for the purpose of S. 121 of the Indian Evidence Act, particularly when the term ""Court"" under the Evidence Act is made to
include a Judge or Magistrate or any Officer except an arbitrator, legally authorised to take evidence.
The second question is whether the Rent Controller is subordinate to this Court. Article 227 of the Constitution places all courts and Tribunals
in the territories in relation to which the High Court exercises jurisdiction under the superintendence of that High Court. The High Court has power
to call for returns from the courts, to make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts
and is given certain other powers mentioned in that Article. Article 235 of the Constitution gives the High Court control over the District Courts
and Courts subordinate thereto, including the posting and promotion of and the grant of leave and certain other matters. While Article 227 deals
with judicial subordination, Article 235 deals with administrative subordination. It will be useful to refer to two decisions of the Supreme Court on
this aspect.
In S.K. Sarkar, Member, Board of Revenue, U.P., Lucknow Vs. Vinay Chandra Misra, the Supreme Court held that, a member of the board
of Revenue was subordinate to the High Court under Article 227 of the Constitution for the purpose of S. 10 of the contempts of Courts Act (70
of 1971). The Court also held that the phrase ""courts subordinate to it"" as used in S.IO of the above Act is wide enough to include, all courts
which are judicially subordinate to the High Court, even though administrative control over them under Article 235 of the Constitution does not
vest in the High Court and that under Article 227 of the Constitution the High Court has the power of superintendence over all courts and tribunals,
throughout the territories in relation to which it exercises jurisdiction.
Earlier, the Supreme Court, in the decision already referred to viz., Thakur Jugal Kishore Sinha Vs. Sitamarhi Central Co-operative Bank Ltd.
and Another, held that an Assistant Registrar discharging the functions of a Registrar under S. 48 r/w.6(2) of the Bihar and Orissa Co-operative
Societies Act (6 of 1935), is subordinate to the High Court for the purpose of S. 3 of the Contempt of Courts Act. The Court observed that
Article 227, is of wider ambit and does not limit the jurisdiction of the High Court to the hierarchy of Courts functioning directly under it under the
CPC and Code of Criminal Procedure, but it gives the High Court power to correct errors of all courts and tribunals, in appropriate cases and that
subordinate for the purpose of S. 3 of the Contempt of Courts Act means judicial subordination and not subordination under the hierarchy of
Courts under the CPC or the Code of Criminal Procedure.
We can also advert to S. 105 Code of Criminal Procedure, wherein for the purpose of the above section, certain Courts have been described
to be Subordinate to certain other courts. S. 195(1)(b) Code of Criminal Procedure requires a complaint of the Court or of some other Court, to
which that Court is subordinate, for certain offences mentioned in that Sub-section when those offences are alleged to have been committed in or in
relation to any proceeding in the Court. S. 195(4) Cr. P.C. provides that for the Clause (b) of Sub S. (1) a court shall be deemed to be
subordinate to the court to which appeals ordinarily lie, from the appealable decrees or sentences of such former court, or in the case of a civil
court from whose decrees, no appeal ordinarily lies, to the Principal Court, having ordinary original civil jurisdiction, within whose local jurisdiction
such Civil Court is situate. The sub-sections have been added to cover a contingency where appeals lie to more than one court.
Though the two decisions of the Supreme Court, referred to above, relate to matters covered under S. 195 Cr. P.C, still the principles
underlying the pronouncements referred to above, would apply with equal force to S. 121 of the Indian Evidence Act. The object of requiring
under S. 195(1)(b) Cr. P.C., a complaint by a Court or by a Court Subordinate to that Court, when the offences are said to have been committed
in relation to court proceedings and the object of requiring the special order under S. 121 of the Evidence Act, before a judicial officer, could be
required to give evidence, is to afford protection to courts and court proceedings from unjustifiable allegations and frivolous complaints made
against them by private parties, Viewing the matter thus, I have no hesitation in holding that the Rent Controller is subordinate to this Court, for the
purpose of S. 121 of the Evidence Act.
The final question is whether the facts of this case, necessitate the special order. The allegations in the complaints are that the report of the third
petitioner on 25-3-1986 is a false document, since the earlier reports, on 21-3-1986 was to get further orders from the Rent Controller for fresh
summons and that without getting any further orders, the petitioners colluded together and without making any visits to the respondent''s premises,
created false record as if a visit was made, the premises were identified and substituted service was effected. On the basis of this report, the
respondents are said to have been made ex parte and an ex parte order of eviction had been passed. The defence of the petitioner is that, the third
petitioner was orally directed by the Rent Controller on 25-3-1986 to effect substituted service and on his instructions, the third petitioner went
and effected service and submitted a report, which is therefore not false. Under these circumstances, the question whether the Rent Controller gave
any oral instructions to the third petitioner on 25-3-1986 to effect substituted service and whether it was on his instructions, that the service was
effected naturally arise for determination. In fact, it is alleged that the Bench Clerk, who had earlier made an endorsement on the third petitioners
first report, struck out the endorsement and had made a fresh endorsement on the basis of the report of the third petitioner dated 25th March,
1986. It is also alleged that even on 25th March, 1986, the Deputy Nazir has made a note in the R.C.O.P. process Entry Register that the process
was again affixed on 25th March, 1986 by the third petitioner under the oral instructions of the 12th Judge. It also appears that this defence has
also been suggested to some of the witnesses already examined, on behalf of the respondents. Under these circumstances, it cannot be said that
the evidence of the Rent Controller is not relevant or not necessary for the decision of the issues involved in the Criminal Case. The special order
sought for under S. 121 of the Evidence Act, therefore, has to be issued.
In the result, the petitions are allowed. Thiru Abdul Wahab, now Registrar, Court of Small Causes, Madras and formerly the Rent Controller
(XII Judge, Court of Small Causes), Madras may be examined as a defence witness in C.C. Nos. 12464, 12465 and 12466 of 1986 pending
before the Additional Chief Metropolitan Magistrate, Egmore, Madras 8.