Ummu Salma Beevi vs Balaraman

S.M. Abdul Wahab, J.—This civil revision petition is against an order in M.P. No. 946 of 1996 in R.C.A. No. 416 of 1996 dated 5.8.1996

on the file of the VIII Judge, Court of Small Causes, Madras.

The landlady has preferred this revision against the order mentioned above by the Rent Control Appellate Authority, directing her to be

summoned, for examination with reference to Ex. P-1 an authorisation given in favour of her son one Zakir Hussain, in the rent control

proceedings.

The respondent filed M.P. No. 745 of 1995 in R.C.O.P. No. 1722 of 1994 for the same relief, but the Rent Controller has rejected the

petition. As against the order of the Rent Controller, the respondent preferred Rent Control Appeal No. 416 of 1996. Pending the said Rent

Control Appeal, M.P. No. 946 of 1996 has been filed by the respondent.

The appellate authority has allowed the petition holding that the interests of justice demands that the signature of the petitioner in Ex. P-1 must

be ascertained by examining the petitioner. As according to the respondent, there is some discrepancy between her signature in Ex. P-1 and other

documents. The appellate authority has also held that it has sufficient powers to do so.

The contention of the counsel for the petitioner-landlady is that no purpose will be served by examining the landlady with reference to Ex. P-1.

The idea of the petitioner is to foist some criminal case against the petitioner by showing to the appellate authority that there was forgery with

reference to Ex. P-1. He also contended that the authorisation was given under Ex. P-1 was only to give evidence and for the said purpose also

there is no necessity for authorisation as per the Rent Control Rules.

The learned Counsel for the respondent vehemently contended that under Rule 28(6) and (7) of the Rent Control Rules, the appellate authority

has got power to summon a party to give evidence. The genuineness of document Ex. P-1 has to be ascertained and a person who has produced a

forged or a fraudulent document should be dealt with according to law.

Before going into the question raised by the counsel on either side, it is necessary to point out that the scope of the appeal itself is limited to the

summoning of the respondent to give evidence in the Rent Control proceedings, with reference to Ex. P-1. When the respondent wanted the

examination of the petitioner in the Rent Control Court, the Rent Controller has rejected the claim of the respondent, he has preferred an appeal. If

he succeeds in the appeal, the petitioner will be summoned and she will be examined with reference to Ex. P-1. Therefore, what is to be decided in

the appeal is, whether tjle Rent Controller was right in rejecting the claim of the respondent for summoning the petitioner to give evidence. The

Rent Controller''s order is not an order with reference to the real dispute in the case before him. The petition M.P. No. 946 of 1996 was filed

under Rule 16(2) read with Rules 28(6) and (7) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1974. In substance, the petition is for

additional evidence as contemplated by Section 23(3) of the said Act.

Additional evidence must be necessary for disposal of the appeal by the appellate authority, with reference to a question that has to be decided

in the appeal, while this question or the issue is pending before the appellate authority. The petitioner has filed the petition M.P. No. 946 of 1996

for summoning the respondent to give evidence with reference to the very same Ex. P-1. By allowing the said petition, the Rent Control Appellate

Authority has allowed the appeal itself. This is wrong.

The appellate authority ought to have considered the order of the Rent Controller by hearing the counsel on both sides.

Additional evidence will be necessary for deciding an issue fcr which purpose there is no sufficient evidence. Issue involved in the appeal is

whether the petitioner should be summoned or not. This has to be decided on a consideration of the provisions of the Act and the Rules and also

the provisions contained in the Evidence Act to some extent. How, the evidence of the petitioner for deciding this issue is relevant is not

understandable. Normally, in an evicted petition or a petition for fixation of fair rent the appellate court may find that evidence for deciding the issue

of eviction or fair rent was not sufficient and therefore, it may require additional evidence. But that is not the case before the appellate authority.

Therefore, invoking of the powers under Rule 16(2) is wrong. On this short ground itself, the revision petition has to be allowed. But however, the

counsel for the respondent was vociferous in contending that since the appellate authority has got powers under Sub-rule (6) of Rule 28, he was

right in summoning the petitioner. Hence, I feel it necessary to consider the scope of Rule 28(6). Sub-rule (6) of Rule 28 read as follows:

28(6) - The controller or the appellate authority, as the case may be, shall have power to administer oaths, to require the attendance of all parties

concerned and of witnesses and require the production of all books and documents relating to the ifcatter in the dispute.

No doubt, the controller or the Appellate Authority has power to require the attendance of all parties conceded. The petitioner is a party. The

appellate authority can require her attendance but he cannot compel her give evidence against her interest, particularly when the respondent wants

to gather evidence for a criminal prosecution. Section 28 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is as follows:

Summons to witnesses:- Subject to such condition and limitation as may be prescribed, the controller may, in his discretion, issue summons to

witnesses, requiring them to attend in person to give evidence or to produce documents in their custody in connection with any proceeding before

him.

The section contemplates only the summoning of witnesses that too in his discretion. But Sub-rule (6) of Rule 28 enables the Rent Controller,

appellate authority to require the attendance of parties. This appears to be beyond the scope of Section 28 itself. No party to a proceeding can be

compelled to attend. If the party happens to be the petitioner his/her attendance before any authority at his/her discretion. When the petitioner fails

to appear, the petition can be dismissed, if the other party fails to appear an order can be passed ex parte. A reading of Section 28 of the Act

shows that the controller has no power even to summon a party. Section 23(3) of the Act also does not contain any power to the appellate

authority to compel the attendance of a party. What it contemplated is only to give an opportunity to a party for being heard. Further Section 23

and 28 of the Act also do not contain any power given to the controller or appellate authority to summon a party at the instance of the respondent

or the opposite party, for giving evidence in a proceeding. Therefore, Sub-rule (6) of Rule 28 of the Act with reference to the power of the Rent

Controller or the appellate authority to require the attendance of the parties concerned is ultra vires the Section 23(3) and Section 28 of the Act. It

is also to be noted that the Tamil Nadu Buildings (Lease and Control) Act, 1960, does not contain any provision for applying the CPC for

summoning or examining the party or witnesses.

One more important aspect that is to be noticed in this case is that the object of the respondent for summoning the petitioner is to ascertain the

genuineness of Ex. P-1. In the affidavit filed in support of M.P. No. 946 of 1996 in paragraph 2, the purpose is mentioned as follows:

...to record a finding to that Effect that Exhibit P-1 in R.C.O.P. No. 1722 of 1995 is not genuine but forged one.

In substance, the respondent wants a finding as regards the forgery committed with reference to Ex. P-1.

Article 20(3) of the Constitution of India is against such an object because no person shall be compelled to give evidence against

himself/herself in a prosecution.

The learned Counsel for the respondent cited the following decisions:

(1) Gooru Narayana and Another Vs. Vaikuntam Chinna Lakshmayya, .

(2) Bagusethi Manikyam Vs. Bagusethi Ramamurty, .

(3) The State (Delhi Administration) Vs. Pali Ram, .

(4) J. Madanagopal v. State of Tamil Nadu and Anr. 1992 W.L.R. 713.

(5) O. Bharatan Vs. K. Sudhakaran and another, and

(6) Afzal and another Vs. State of Haryana and others, .

Gooru Narayana and Another Vs. Vaikuntam Chinna Lakshmayya, :

A.I.R. 1939 Mad. 927 : 1989 M.W.N. 735 : 50 L.W. 654, is a case where the affidavit of certain person was acted upon without summoning the

person who sworn to the affidavit. Hence a single Judge of this Court has held that affidavit cannot be properly acted upon.

B. Manikyam v. B. Ramamurthy AIR 1975 On. 20, is a decision of the Orissa High Court, which distinguishes the recognised agents and

authorised agents. How for this case is useful to the petitioner, I am unable to understand at all.

In The State (Delhi Administration) Vs. Pali Ram, , the Apex COurt has held that the criminal court has power to issue direction to an accused

to give his specimen handwriting. It is also stated in the said case that the Judge should as a matter of prudence and caution, hesitate to base his

finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence.

The opinion of the expert is stressed. The Apex Court has held that Section 23 of the Act in the light of Section 45 of the Evidence Act enables a

Court holding an enquiry under the CPC in respect of an offence to direct the accused person before it to give his sample writing. In a criminal

case the accused is bound to appear and the court has to send summon and even issue warrant against the accused for attendance. We are not

concerned with such a situation in the Rent Control proceedings.

J. Madanagopal v. State of Tamil Nadu and Anr. 1992 W.L.R. 713. This is also not helpful to the petitioner. The said case relates to the filing

of an affidavit by a power of attorney in support of a writ petition without posting him with relevant facts. Justice M. Srinivasan, (as he then was)

has held that the petitioner himself ought to have filed the affidavit.

Jagannath Misra Vs. State of Orissa, , relates to a case where the High Court compared the disputed signatures on counterfoils without the aid

of expert or person conversant with the disputed signatures, the Apex Court has held that such a comparison is illegal.

In Afzal and another Vs. State of Haryana and others, , the Police Official was asked to forge the signature of his superior on carbon copy of

counter-affidavit. On refusal he contacted his superior and the superior directed the official to forge his signature and the official acted accordingly.

The Police Officer who asked the Police Official to forge his signature was fotlnd to have abetted the offence of forgery. THe facts of the case has

nothing to do with out case.

All the cases cited by the learned Counsel for the respondent are not at all relevant. The learned Counsel for the respondent attempted to rely

upon the provisions contained in Section 73 and Section 47 of the Indian Evidence Act. Section 73'' of the Indian Evidence Act enables the court

to direct a person who appears before it to writ for comparison of the signature. Similarly Section 47 of the Indian Evidence Act enables the Court

to compare the signature contained in documents. I do not understand how these are all relevant for the purpose of deciding the civil revision

petition. We are concerned with the order passed by the appellate authority summoning the petitioner for giving evidence with reference to Ex. P-

The petitioner is a party to the Rent Control proceedings. If according to the respondent, the signature contained in Ex. P-1 is a forged one, he

has got every right to take appropriate proceedings, but he cannot compel the petitioner to give evidence in an appeal, especially when her

evidence is not at all necessary for deciding the appeal. As indicated above, by allowing the Interlocutory Application, the appellate authority has

allowed the appeal itself. This is the result of his misconception of the scope of the appeal before him. Therefore, the order has to be set aside.

Accordingly, the revision is allowed with costs. Counsel fee is fixed at Rs. 500.