JUDGMENT Desai, C. J.
1. This case has been referred to a larger Bench by Srivastava and Katju JJ., on account of a conflict between S G. Banerji v. Ram Kumar Das, Civil Revn. No 992 of 1958 decided by Mukherji and Uniyal, JJ. on 6-4-1962 (All) and Daulat Ram v. Tirloki Ram. Second Appeal No. 1889 of 1955 decided by Beg and Srivastava, JJ., on 18-8-1961 (All) on the question whether a Munsif exercising jurisdiction conferred upon him by Section 7-E of the U. P (Temporary) Control of Rent and Eviction Act acts as a Civil court or as a persona designata.
2. The Act confers Jurisdiction in respect of several matters upon District Magistrates, i.e. District Magistrates within the meaning of the Cr. P. C. and other officers empowered by them to perform any of their functions under the Act; vide Sections 3-A, 7 and 7-A When a landlord or a tenant claims that the annual reasonable rent of any accommodation is inadequate or excessive he can institute a suit for declaration or for fixation of rent "in the court of the Munsif having territorial jurisdiction, if the annual cent claimed or payable is Rs 500/- on less, and in the court of the Civil Judge having territorial jurisdiction if it exceeds Rs 500/-" vide Section 5(4). It has never been questioned that this provision does not confer a new jurisdiction upon the court of a Munsif or of a Civil Judge and simply provides for a new relief to be granted to a landlord or a tenant by the courts in the exercise of their ordinary jurisdiction viz. the jurisdiction conferred upon them by the Bengal, Agra and Assam Civil Courts Act (No XII of 1887) and the Oudh Courts Act by which they are created. Section 7-B(1) is to the effect that when any tenant is in arrears of rent For more than three months "the landlord may make an appplication to the Munsif having territorial jurisdiction for an order of ejectment of the tenant from the accommodation".
Then follow provisions which deal with con tents of the application, its verification, the procedure to be followed by the Munsif and the orders that can be passed by him Section 7-E, Sub-section (4), lays down that If a landlord neglects to carry out repairs which he is bound to make, "the tenant may apply to the Munsif having jurisdiction for an order to the landlord for carrying out the same"; there are provisions laying down the procedure to be followed by the Munsif and the orders that may be passed by him and Subsection (8) to the effect that "no appeal shall be from the order of the Munsif passed under Subsections (5) and (6) which shall be final." Section 7-F confers powers upon the State Government to call for the record of any of certain enumerated cases other than a case under Section 7-E and make such orders as appears to it necessary for the ends of justice. The only other provision in the Act that may be noticed is that of Section 16 laying down that no order made under the Act by the State Government or the District Magistrate shall be "called In question in any court".
3. The short facts in this case are that the opposite-party tenant made an application under Section 7-E in the court of a Munsif for an order requiring the applicant-landlord to carry out certain repairs to the accommodation. The applicant filed an application in this Court for revision of the Munsifs order under Section 115, C. P. C. Under this provision this Court would have jurisdiction to revise an order of a court subordinate to it and hence arose the question whether the Munsif when exercising jurisdiction under Section 7-E acted as a court subordinate to this Court. The court of Munsif was created under the Bengal, Agra and Assam Civil Courts Act to exercise jurisdiction over all original suits for the time being cognizable by the civil courts of which the value does not exceed Rs. 2000/-, vide Sections 3 and 19. Under Section 21 an appeal lies from a decree or order of a Munsif to the District Judge. It is undisputedly a court subordinate to the High Court and consequently any order that it passes in the exercise of the jurisdiction conferred upon it by Section 19 is revisable by the High Court. The question, therefore, before us is whether when the Munsif in the instant case passed the order under Section 7-E he did so in exercise of his ordinary jurisdiction conferred by the Bengal, Agra and Assam Civil Courts Act or in exercise of a new and distinct jurisdiction which might have been conferred by the legislature upon any authority and was accidentally conferred upon a person already vested with jurisdiction under the Bengal, Agra and Assam Civil Courts Act.
The ordinary jurisdiction of a Munsif extends bo original suits for the time being cognizable by civil courts. Under Section 9 C. P. C. civil courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Whether a tenant has a right or not to require the landlord to carry out certain repairs to the accommodation is a civil dispute. The relations between a landlord and tenant are governed by the Transfer of Property Act and the Contract Act and any enforcement of a right or a liability accruing under them would be through a civil court. Under them a tenant has no right to call upon the landlord to make the accommodation windproof and waterproof and to carry out repairs which the landlord did not undertake (o carry out; consequently he would have no right to go to a civil court for an order of this nature. Such a right has, however, been conferred upon him by Section 7-E of the Control of Rent and Eviction Act. This provision not only created right in the tenant but also provided that the right would be enforced by "the Munsif having jurisdiction". The question is what did the legislature intend by this provision. Did it intend that the Munsif, e.g. the presiding officer of a court of Munsif, should pass such an order in the exercise of his ordinary jurisdiction or that a special jurisdiction was conferred upon him to pass it?
I am of the opinion that the Intention was that he should pass it as a part of his ordinary jurisdiction. The legislature had no reason to distinguish this jurisdiction from the ordinary jurisdiction over suits of a civil nature, The dispute was essentially a dispute of a civil nature. But for Section 7-E the tenant would not have a right to obtain such an order and the legislature intended only to create the right. There is nothing in the Act to indicate that it intended to oust me ordinary jurisdiction of civil courts over the right or to create a special authority for enforcing it. This intention is not Inconsistent with its specifying a Munsif's Court as the court competent to grant the relief; otherwise a Munsif or a Civil Judge would have been competent to grant it depending upon the valuation placed upon it by the tenant. Apparently the Legislature intended not that the jurisdiction should depend upon the valuation to be placed upon the relief by the tenant but that a munsif should have jurisdiction In all cases and, consequently, provided in Section 7-E that the tenant may apply to a Munsif. The words "having jurisdiction" used in Sub-section (4) certainly mean territorial jurisdiction. Territorial jurisdiction depends upon the provisions of the Bengal, Agra and Assam Civil Courts Act or the Oudh Courts Act and the reference to this jurisdiction does lend some support to the argument that the Munsif is to act as a court governed by the Act and not as a persona designata specially constituted under Section 7-E.
4. I am not enamoured of the distinction made between "a Munsif" and "a court of Munsif and of the argument based upon it to the effect that "a Munsif" acts as a persona designata, whereas "a court of Munsif" acts as a court constituted under the Bengal, Agra and Assam Civil Courts Act or the Oudh Courts Act. When the Legislature speaks of "a court of Munsif" it certainly means a court and not a persona designata, but the converse is not always true and it may speak of "a Munsif meaning thereby "a court of Munsif. There is certainly a distinction between a court and the officer presiding over it, but, while a reference to a court always means what it says, a reference to the officer presiding over it is ambiguous and may mean either the court or him as distinct from the court. What the Legislature means by its referring to an authority described as the authority presiding over a court depends upon whether it means to refer to the court or to him and refers to the fact of his presiding over a court simply to describe or identify him. It is always open to the Legislature to confer a special jurisdiction upon an authority presiding over a court and when It does so it may have to refer to the fact of his presiding over the court in order to describe or identify him. In such a case the reference to his presiding over the court is only accidental and does not mean that he has to exercise Jurisdiction as a Court When the Legislature referred in Section 7-E to "the Munsif having jurisdiction" it does not seem to have meant the person presiding over a court of Munsif 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 been selected on account of his presiding over a court of Munsif. It has referred ;o "Court of the Munsif" in Section 5(4) and Section 7-C(S) and to "the Munslf" in Section 7-B(1) and Section 7-E, but I have no reason to think that this distinction was deliberate.
I doubt If the Legislature intended to create three different authorities, (1) a District Magistrate acting administratively, (2) a Munsif acting as a Civil Court and (3) a Munsif acting as a persona designate. The difference between a proceeding under Section 5 (4) or under Section 7-C (3) and a proceeding under Section 7-B or under Section 7-E Is not of such a nature as would have justified one proceeding being held before a court and the other before a persona designata. It a Munsif were to act as a persona designata under Section 7-E there would have been no necessity of Sub-section (8) barring an appeal from his order The mere absence of a provision making it appealable would have sufficed; Sub-section (8) would have been necessary only if the order was appealable and it will be appealable if he acts as a civil court. Only the State Government's and District Magistrate's orders under the Act are immune from an attack in a court, not an order passed by a Munsif under Section 7-E. If lie were to act as a persona designata one would have expected his order also to be immune from such an attack Similarly the absence of the State Government's revisional jurisdiction over an order under Section 7-E is more consistent with its being an order of a court than with its being an order of a persona designata.
5. The distinction between a jurisdiction conferred upon a Judge of a Court and a jurisdiction conferred upon the court was discussed by the High Court or Australia in Kahn v Board of Examiners, 62 CLR 422 Under a statute a person dissatisfied with a decision of a board was given a right to appeal to "the Judges of the Supreme Court" and the appeal was to be heard by three or more Judges. The High Court of Australia held that when they heard the appeal they did so as Supreme Court and that an appeal lay to the High Court from their decision When hearing the appeal they exercised jurisdiction of the Supreme Court and not as an independent and supervisory authority over the Board. Evatt J referred to Medical Board of Victoria v. Meyer. 56 CLR 62 which deserts the theory that while a jurisdiction is conferred upon "a Judge of the Supreme Court" it is distinguishable from that of the Supreme Court. Similar was the decision in James Chadwick and Bros Ltd v. National Sewing Thread Co Ltd., AIR 1951 Bom 147 where it was observed that where a statute directs that an appeal shall lit to a Court already established the appeal must be regulated by the practice and procedure of the court When a Deputy Commissioner exercises jurisdiction conferred upon him under Section 13(3) of the U. P. and Berat Relief of Indebtedness Act. he acts as a re-venue officer and not as a persona designata; see Ram Million v Bandlal. AIR 1958 M P 203 (FB). For the distinction between jurisdiction conferred upon a new statutory body created by an Act and exercising administrative functions and jurisdiction conferred upon an existing court reference may be made to R v. Southampton Licensing Justices, (1906) 1 KB 446, and Colchester Brewing Co Ltd. v. Tendring Licensing Justices, (1916) 2 KB 126. Swinfen Eday L. J. observed In the latter case at page 131:
"Where a new jurisdiction is given to a Court, prima facie that Court is to exercise that jurisdiction in accordance with all its ordinary powers"
A Civil Judge exercising jurisdiction under Section 17 of the Payment of Wages Act exercises jurisdiction as a civil court and not as a persona designata; see Hindusthan Journals v Govind Ram. AIR 1963 Madh Pra 25 but contrary view was taken in Mewar Textile Mills Ltd. v Girdhari Singh. (S) AIR 1957 Raf 115 A Collector exercising jurisdic-tion under Section 13 of the Madras Hereditary Village Offices Act does so as a courl according to Subba Rao v. Koteswara Rao, AIR 1963 Andh Pra 37. NandlaJ Das v Monmatha Nath. AIR 1962 Cal 597 holds a Civil Judge hearing an appeal under the West Bengal Premises Tenancy Act to be a court and not a persona designata, A civil court hearing a revision petition under the Madras Rent Control Act was held in Ullal Dinkar v Ratna Bai, AIR 1958 Mys 77 to do so as a court subordinate to the High Court and not as a persona designata, A Civil Judge upon whom is conferred jurisdiction under the Displaced Persons (Debts Adjustment) Act is a court subordinate to the High Court, vide Ishwar Singh v. Mohan Singh, Civil Revn No, 602 of 1956, D/- 11-3-1958 (All) by Roy and Bisham-bhar Dayal, Jj
6. A District Magistrate upon whom jurisdiction is conferred by S 160 of the U. P. Municipalities Act to hear an appeal from an assessment order was held, by a Bench of this Court of which I was a member, not to be a Court, vide State of U. P. v Ratan Shukla, (S) AIR 1956 All 258. Similarly in Lakhama Pesha v. Venkat Rao Swamlrao, (S) AIR 1955 Bom 103 a Judge upon whom a certain jurisdiction was conferred by the Bombay Municipalities Act was held to be a persona designata. In Godson v Corporation of the City of Toronto, (1891) 18 SCR 36 (Canada), a county Judge on whom jurisdiction was conferred by a Municipal Corporation Act to Investigate a certain matter and to report the result to the Municipality was held to be not a court when exercising the jurisdiction When a civil court acts as an arbitrator under a statute and decides a certain matter it acts as a persona designata and its decision is an award not open to an appeal under the ordinary taw applicable to decisions of courts Accordingly in Hanskumai v Union of India AIR 195S SC 947 a Judge of a court deciding a matter as an arbitrator under the Defence of India Act was held to act not as a Court but as a persona designata Justices at a licensing meeting are not a Court and an appeal from their refusal to grant a licence is not governed by the Summary Jurisdiction Act; Boulter v Justices of Kent. (1897) AC 556 See also Atwood v Chapman (1914) 8 KB 275 in which they were held not to act as a court in law A Civil Judge upon whom a jurisdic-tion is conferred by the Madras Rent Control Act does not exercise the jurisdiction as Civil Court according to Rayala Corporation (Madras) Ltd. v. Syed Bawkar Co., AIR 1957 Mad 385.
A District Magistrate exercising jurisdiction conferred by the Madhya Bharat Police Act is not a criminal court and acts administratively; this was the decision in Dongarsingh v. State, AIR 1957 Madh Pra 97. Strickland v. Crima, 1930 AC 285: (AIR 1930 PC 227) dealt with a statute conferring jurisdiction upon the Court of Appeal to decide all questions that may arise as to the right of any person to be a member of the legislative assembly and the House of Lords held that when the Court of Appeal decided in a particular case that the election of X was void no appeal lay from it to the Privy Council because the intention behind the Act was to designate it a special tribunal finally to decide all questions of the nature without annexing to the jurisdiction the ordinary incident of an appeal to the Crown.
Similarly in Kedar Nath v. S. N. Misra, 1957 All LJ 379: ((S) AIR 1957 All 484) a Full Bench of this Court held that a Sub Divisional Officer constituted a tribunal to hear an election petition under the U. P. Panchayat Raj Act acts as a persona designata; the criterion laid down by Mootham, C. J., was that if a statute confers on an existing Court jurisdiction not possessed formerly it acts as a Court and that, if it creates for a particular purpose a special tribunal deriving its entire authority from it, it acts as a persona designata. I respectfully agree with this criterion as also with the observation that the answer to the problem depends on the intention of the legislature to be ascertained, from the terms of the statute itself. Proceedings before a Magistrate for the recovery of expenses instituted by a Municipal Board were held in the Dargah Committee Ajmer v. State of Rajasthan, AIR 1962 SC 574 to be proceedings before a persona designata and not a Court because the proceedings were of a civil nature. The jurisdiction of a criminal court does not include decision of a dispute or a civil nature and, therefore, the jurisdiction conferred upon the Magistrate under the Municipalities Regulation could not be said to be a jurisdiction to be exercised by him as a criminal court. All these cases are distinguishable from the instant case.
7. A persona designata differs from a legal tribunal in this that its "determinations are not be treated as judgments of a legal tribunal"; per Lord Atkison in Balakrishna Udayar v. Vasudeva Ayyar, 44 Ind App 261 at p. 269: (AIR 1917 PC 71 at p. 74). A persona designata is "a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filing a particular character"; see AIR 1958 M. P. 203 (FB) and Central Talkies Ltd v. Dwarka Pd., AIR 1961 SC 606. According to the Supreme Court he is a person selected to act in his private capacity and not in his capacity to act as a Judge; he exercises special jurisdiction distinct from the jurisdiction that he may be possessing under another statute. I have given reason for my view that the legislature has selected a Munsif to exercise the jurisdiction conferred by Section 7-E not in his private capacity but in his capacity to act as the presiding officer of a Munsif's court.
Gulam Nizamuddin v. Akhtar Husain Khan, 1933 All LJ 971: (AIR 1933 All 764); Municipal Corporation of Rangoon v M. A. Shakur, AIR 1928 Rang 25 (FB) Municipality of Sholapur v. Tulja-ram, AIR 1981 Bom 562 should not Be interpreted as laying down a hard and fast rare that when jurisdiction is conferred upon the presiding officer of a court and not upon the court itself he acts as a persona designata. "One has got to look to the entire provision for the purpose of deteming whether the matter is to be Beard by the Judicial Officer as a Court or in his own personal capa city"; Kiron Chandra Bose v. Kalidas Chatterji, AIR 1943 Cal 247. "Whether an act is to be perform-ed by the one or the other is generally to be determined by the character of the act, rather than by such designation. Whenever the power or duty imposed is found from a consideration of the object ana purposes of the act to be one which is more properly the function of the court, it will be so construed; and whenever it is manifest that the legislature meant the judge, and not the court, that meaning will be applied to the words in order to carry out the legislative intent"; see 14 Am. Jur., "Courts", para 4.
8. In Din Dayal v. Ved Prakash, Civil Revn. No. 1034 of 1955 D/- 15-2-1962 (All) our brother Dwivedi held that a Munsif acting under Section 7-E acts as a persona designata because an order directing a landlord to carry out repairs, within a certain time is unlike an order normally issued by a court. With great respect I do not agree. He relied upon the principle that a court cannot issue a mandatory injunction for the doing of an act which cannot be supervised by it. Section 55 of the Specific Relief Act (see illustrations (a) and (b)) and Section 133 Cr. P. C. permit mandatory injunctions similar to a mandatory injunction contemplated by Section 7-E to be issued and yet undoubtedly the authorities issuing them are courts.
9. I am of the opinion that Civil Revn. No 992 of 1958. D/- 6-4-1962 (All) and Mustafa Hus ain v. Sewa Ram Bodh Raj, Civil Revn. No. 1212 of 1955 D/- 20-4-1961 (All) by V. Bhargava, I do not lay down the correct law. I respectfully agree with the view taken in the case of Second Appeal No 1889 of 1955, D/- 18-8-1961 (All) and hold that a Munsif exercising jurisdiction under Section 7-E acts as a Court and not as a persona designata. His order is, therefore, revisable by this Court under Section 115, C. P. C T would answer the question in the affirmative. OAK, J.:
10. I have read the judgments prepared by the learned Chief justice and my learned brother Pathak J. In my opinion, a Munsif acting under Section 7-E of the U P. Temporary Control of Rent and Eviction Act, 1947 (hereafter referred to as the Act) is a Court.
11. Under Section 7-E of the Act, a Munsif having jurisdiction may direct a landlord to carry out certain repairs. According to Sub-section (8) of Section 7-E, as it stood originally, an appeal lay from the order of the Munsif under Sub-section (5) or Sub-section (6) as if it were a decree. According to Subsection (8) of Section 7-E, as it stands now. no appeal shall lie from the order of the Munsif passed under Sub-sections (5) and (6) of Section 7-E. If Section 7-E is considered in isolation, it would be difficult to say whether the Munsif is a Court or a persona designata. In order to appreciate the true status of the Munsif under Section 7-E, one has to consider the general scheme and other provisions of the Act.
12. According to the preamble of the Act, the object of this legislation was to control the letting and the rent of accommodations, and to prevent the eviction of tenants. Under Section 3 of the Act, a District Magistrate may grant a landlord permission to file a suit against a tenant for his eviction. Under Section 5 of the Act, a landlord or a tenant may institute a suit for fixation of rent. Such a suit has to be filed in the Court of the Munsif or in the Court of the Civil Judge, according to the valuation of the subject-matter Under Section 7 of the Act, a District Magistrate may pass orders about allotment of houses Under Section 7-B, the landlord may apply to the Munsif having territorial jurisdiction for the recovery of arrears of rent and for ejectment of the tenant. Under Section 7-C of the Act, the tenant may deposit rent in the Court of the Munsif having jurisdiction. Under Section 7-D, the District Magistrate can direct a landlord to restore amenities to a tenant. Under Section 7-E of the Act, the Munsif having jurisdiction may order a landlord to carry out repairs.
13. To grant permission for filing a suit for ejectment of a tenant and to allot houses are administrative functions. These duties have been assigned to the District Magistrate To fix reni for an accommodation and to take action against a tenant for the recovery of rent and for eject-ment are functions of judicial nature At certain places in the Act the Munsif has been expressly referred to as a Court But nowhere in the Act do we find any reference to the District Magistrate as a Court Under the Act, the District Magistrate functions as an administrative officer. Courts of District Magistrates are constituted under Sections 6 and 10 Cr. P. C. But it cannot be seriously maintain ed that, a District Magistrate functioning under the Act is a Criminal Court It is well recognized that the District Magistrate or the Collector is the chief executive officer of a district It is in that capacity that certain duties have been assigned to the District Magistrate under the Act.
In AIR 1961 SC 606 it was held that, under the Act the District Magistrate is not a persona designata But that case does not lay down that under the Act the District Magistrate is a Court Section 16 of the Act lays down that no order made under this Act by the State Government or the Dish'ict Magistrate shall be called in question in any Court Section 16 makes no reference to a Munsif or a Civil Judge Section 16 suggests that an order passed by a Munsif under the Act may be called in question in a Court of law The legis lature appears to have placed the State Government and the District Magistrate on one hand and the Munsit and the Civil Judge on the other hand, on different footings.
14. Section 7-B throws much light on the status of a Munsif under the Act Under Sub-section (1) of Section 7-B, "the landlord may make an application to the Munsif having territorial jurisdiction for an order of ejectment of the tenant from the accommodation."
Under Sub-section (3), the Munsif serves a notice on the tenant calling upon him to pay up the arrears of rent. Sub-section (51 lays down that if the tenant does not deposit rent and does not file any objection, the Munsif shall order the tenant's eviction Sub-section (7) of Section 7-B states:
'It the tenant appears in reply to the notice under Sub-section (3) and files an objection.......the Munsif shall inform the applicant that he may, subject to the payment of the court fee.........have the application treated as a plaint in a suit for recovery of arrears of rent alone ... ......"
According to Sub-section (8), if the applicant pays the necessary court-fee, the application has to be treated as a plaint and the proceedings as a suit. It is to be noted that the same Munsif has to deal with the entire proceeding from Sub-section (1) to Sub-section (8) of Section 7-B of the Act. Under Subsection (8), the application has to be treated as a plaint, and the proceedings constitute a suit ft is obvious that the Munsif acting under Sub-section (8) of Section 7-B is a Civil Court. It is unreasonable to suppose that, a Munsif has one character under Sub-section (1), and another character under subsection (8). The status of the Munsif must be the same throughout the proceeding under Section 7-B of the Act.
The status of the Munsif cannot alter, simply because the landlord has paid court-fee in order to convert the application into a plaint. Throughout the proceeding under Section 7-B of the Act the Munsif is a Civil Court.
15. Mr. Vishnu Kumar Gupta, appearing for the opposite party, pointed out two matters in support of his contention that under Section 7-E of the Act the Munsit is a persona designata Mr. V K. Gupta firstly pointed out that, under Section 7-E of the Act, the Munsif having territorial jurisdiction has unlimited pecuniary jurisdiction It was, therefore, contended that, he cannot be a Civil Court under the Bengal Agra and Assam Civil Courts Act, 1887 (hereafter referred to as the Civil Courts Act). Mr V. K Gupta pointed out that, under Section 19 of the Civil Courts Act, a Munsif has limited jurisdiction It has however, to be noted that, even under Sectin 19 of the Civil Courts Act, all Munsifs have not got the same pecuniary jurisdiction. The jurisdiction of one Munsif may be up to Rs 2,000/-, Another Munsif may have jurisdiction up to Rs 5,000/- It was open to the legislature to confer on Munsifs unlimited pecuniary jurisdiction for purposes of U. P Act No III of 1947
16. Secondly, it was contended by Mr. V. K. Gupta that, in order to recover money spent by a tenant for repairs under Section 7-E of the Act, the tenant has to file a separate suit against the landlord to recover the amount as a debt The material provision as contained in Sub-section (6) of Section 7-E is this;
"If shall thereafter be lawful or the tenant a make such repairs and to deduct the, cost there of from the rent, or to recover it otherwise from the landlord as if it were a debt due to him by the landlord."
According to this provision, a tenant may recover the cost of repairs in two ways Either he may adjust the expenditure against rent payable by him Or the tenant may treat that expenditure as a debt due to him by the landlord This provision has little bearing on the status of the Munsif under Sub-sections (5) and (6) of Section 7-E
17. In National Telephone Co. v. Postmaster-General. 1913 AC 546 Viscount Haldane. L C ob served that, "when a question is stated to be referred to an established Court without more it imports that the ordinary incidents of the procedure of that Court are to attach "
18. The broad scheme under the Act is this Duties under the Act have been divided into two groups. Administrative duties have been assigned to the District Magistrate. Functions of Judicial nature have been assigned to Munsifs and Civil Judges. Courts of Munsifs are constituted under the Civil Courts Act. There is a presumption that Munsifs under U. P. Act No. III of 1947 are also Civil Courts There is no clear indication in the Act that, a Munsif is a person a designata. On the contrary, the Act contains several references to Munsifs as Courts. In the Act we come across three different expressions: (1) the Munsif having Jurisdiction, (ii) the Munsif having territorial jurisdiction, and (iii) the Court of the Munsif having jurisdiction. The three expressions appear to have been used in the Act indiscriminately. The three expressions refer to the same authority The expression "the Court of the Munsif having Jurisdiction" obviously refers to the authority as a Civil Court. The other two expressions also appear to have been used in the same sense. The expression "Munsif having jurisdiction" used in Sub-section (4) of Section 7-E of the Act is equivalent to the expression, "the Court of the Munsif having territorial jurisdiction".
19. In view of all these considerations, I have come to the conclusion that, a Munsif functioning under Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 is a Civil Court sub-ordinate to the High Court. Consequently, the present Civil Revision under Section 115, C. P. C. is maintainable. PATHAK, J.:
20. The question referred for decision is:
"Whether a Munsif while acting under the provisions of Section 7-E of the U. P. Control of Rent and Eviction Act acts as a mere persona designata or as a Court, and whether a revision against an order passed under Section 7-E of the Act is maintainable?"
21. An application was made by one Ram Bihari Dixit, the tenant of a house, under Section 7-E of the U. P, (Temporary) Control of Rent and Eviction Act, 1947, before the Munsif of Koil at Aligarh, for an order directing the landlords, Chatur Mohan and others, to make the house wind-proof and water-proof and to effect certain repairs. Upon this application an order was passed by the Munsif on October 14, 1958, requiring the landlords to make the repairs indicated in the order, and permitted the tenant, in case the landlords defaulted, to carry them out. Against the Mun-sif's order, the landlords preferred a revision application in this Court invoking its Jurisdiction under Section 115 C. P, C. Upon objection by the tenant that the revision application was not maintainable, Mithan Lal, J. referred the case for decision of the aforesaid question to a Division Bench, which in turn considered the question of sufficient importance to merit consideration by a larger Bencn. and that is how the matter is now before us.
22. The U. P. (Temporary) Control of Rent & Eviction Act was enacted for the purpose of controlling the letting, and the rent, of accommodation and for preventing the eviction of tenants therefrom. Apparently, one of the effects of such control on letting and rent was that the landlord developed a disregard for the maintenance and upkeep of accommodation. Accordingly, the U. P. Legislature enacted the U. P. (Temporary) Control of Rent & Eviction (Amendment) Act, 1952. Among other provisions, Section 7-E was inserted in the principal Act, requiring every landlord to keep the accommodation wind-proof and water-proof and to carry out other repairs which he was bound to make by law, contract or custom. Sub-section (S) provided that If the landlord failed to carry out annual white washing recolouring and periodical repairs, the tenant could by notice require him to carry out the same within one month, and in case the landlord failed to do so the tenant was entitled to carry out the same himself. Sub-section (4) conferred a right upon the tenant to apply "to the Munsif having jurisdiction" for an order directing the landlord to carry out any repairs, other than annual repairs, which he was bound to make. The jurisdiction of the Munsif, and the procedure to be followed by him, were set out in some detail. The relevant provisions of Section 7-E are:
"(4) If the landlord neglects to carry out any repairs, other than annual repairs, which he is bound to make to the accommodation by law or contract, the tenant may apply to the Munsif having jurisdiction for an order to the landlord for carrying out the same. The Munsif shall cause a notice to be served on the landlord to appear and show cause; within such time as may be fixed, against the application.
(5) If the landlord does not appear In obedience to the notice or if he appears but fails to satisfy the Munsif as to why he should not he directed to carry out the repairs or such of them as he finds the landlord is bound to make, the Munsif shall direct him to carry out the same within a time to be fixed.
(6) If the landlord still tails to carry out the repairs in accordance with the direction under Subsection (5) the Munsif may require the tenant to submit an estimate of the cost of such repairs and after considering the estimates and taking such other evidence, as he may consider necessary, permit the tenant to carry them out at a cost not exceeding such amount as may be specified in the order and to recover such cost from the landlord. It shall thereafter be lawful for the tenant to make such repairs and to deduct the cost thereof from the rent or to recover it otherwise from the landlord as If it were a debt due to him by the landlord.
(7) No order for carrying out of repairs under Sub-section (5) shall be made if the Munsif Is satisfied that the repairs involved were due to the apparent and absolute fault of the tenant (8) No appeal shall lie from the order of the Munsif passed under Sub-sections (5) and (6) which shall be final."
23. These are the provisions with reference to which the question referred must be answered
24. What we are really called upon to decide is whether the Munsif acting tinder Section 7-E is a Court. If he acts as a Court, there can be no doubt that as such Court he is subordinate to the High Court within the meaning of Section 115 C P C and. therefore a revision against an order passed under Section 7-E would be maintainable
25. The question whether an adjudicating authority is a Court or a persona designata depends. as Mootham, C. J. observed in 1957 All LJ 379 ((8) AIR 1957 All 484 (FB)) upon:
"Whether the enactment confers on an existing court a jurisdiction which it formerly did not possess, ....... or whether it creates for a particular purpose a special tribunal which derives its entire authority from the enactment itself......".
26. Is it a case where additional jurisdiction has been conferred upon an already existing Court or one where the statute creates a tribunal and vests special jurisdiction in it so that but for the statute it would not only be devoid of jurisdiction but be non-existent in law as such tribunal?
27. This is a question not capable of conclusive determination by any mechanical rules or rigid criteria. The resolution of the problem will depend upon the consideration of several circumstances which may vary from case to case, and the answer must necessarily be given by reference 'o the over-all context in which the jurisdiction has been conferred.
28. Now it is well settled that although a tribunal may have many of the trappings of a Court, it may nevertheless not be a Court in the strict sense of exercising judicial power, and the mere existence of certain attributes, normally associated with Courts, would not necessarily confer that status upon such tribunal. In Shell Co. of Australia v Federal Commr of Taxation, 1931 AC 275 the judicial Committee observed:
"A tribunal is not necessarily a Court in this strict sense because it gives a final decision 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court 6. Nor because it is a body to which a matter is referred by another body."
29. These principles have been applied in Bharat Bank Ltd. v. The Employees of the Bharat Bank Ltd., AIR 1950 SC 188; Harinagar Sugar Mills Ltd v Shyam Sunder, AIR 1961 SC 1669; Smt. Ujjam Bai v. State of Uttar Pradesh. AIR 1962 SC 162]
30. And, Bennet, J., in 1933 All LJ 971: (AIR 1933 All 764) observed:
"The fact that a presiding officer of a Civil Court is appointed to preside over an election court will not make the election court a civil court See also 1957 All LJ 379: ((8) AIR 1957 All (484) (FB)
31. One of the tests generally recognised is that when jurisdiction is conferred upon the presiding officer of a Court as distinct from the Court, he acts as a persona designate.
32. This test was applied by the Judicial Committee in 44 Ind App 261: (AIR 1917 PC 71) where in deciding the question whether an order under Section 10 of the Religious Endowments Act, 1863 was passed by a Court or by the District Judge as persona designate that eminent body was impressed by the consideration that:
"It is to the Civil Court, and not to an individual judge who may preside in or constitute the Civil Court that Jurisdiction is given "
33. This Court in 1933 All LJ 971: (AIR 1933 All 764) was similarly influenced by the consideration, amongst others, that the statute conferring jurisdiction referred to the tribunal as the District Judge and not as the Court of the District Judge-34. In AIR 1926 Rang 25 a Full Bench of the Rangoon High Court proceeded so far as to raise a presumption on the basis of such test that the presiding officer, upon whom jurisdiction was conferred, acted as a persons designata It observed:
"Where by an Act of the legislature, a new authority is constituted for the purpose of determining questions concerning rights which are themselves the creations of the Act, and a Judge or presiding officer of a Court, as distinct from the Court itself, is directed to perform the functions of the newly created authority, then it must be presumed, unless the contrary is not expressly indicated or necessarily implied, that the Judge or presiding officer should perform those functions as a persona designate and not as a Court.".
35. In AIR 1931 Bom 582 Patkar and Broom-field, JJ,, in their respective Judgments, similarly expressed the view that where a Judge or presiding officer of a Court, and not the Court itself, was directed to perform certain functions created by statute, such a Judge may be considered a persona designate and not a Court.
36. In the case before us, jurisdiction under Section 7-E has been conferred upon the "Munsif" and not upon the "Court of the Munsif" and this consideration assumes importance when we find from other provisions of the same statute that the Legislature expressly speaks of "the Court" when reference is intended to a Court For example, under Sub-section (4) of Section 5 a landlord or tenant is entitled to institute a suit for fixation of rent. The suit is to be instituted in the "Court of the Munsif" or the "Court of the Civil Judge" depending upon the pecuniary valuation of the suit the statute does not say that the suit shall be instituted before the Munsiff or the Civil Judge. Again Sub-section (5) of Section 5 speaks of rent fixed "by the Court" and not by the Munsif or the Civil Judge Under Section 7-C Sub-section (3), the deposit to be made by the tenant must be made in the "Court of the Munsif having jurisdiction in the area where the accommodation is situate". The landlord can withdraw the deposit on application made by him to the "Court" under Sub-section (4), and in certain cases the deposit will be held by the "Court" under Sub-section (5) for the benefit of the person entitled to it. These provisions were inserted by the same amendment Act as brought in Section 7-E. These provisions of Section 5 and Section 7-C bear marked contrast to the language employed in Section 7-E, where it is the Munsif upon whom Jurisdiction has been conferred.
37. Now this test indicates that the Legislature in enacting Section 7-E intended to constitute the Munsif a persona designata, but it cannot conclusively determine the question before us
38. As was observed in AIR 1943 Cal 247:
"Difficulties do arise however when the expression used is not 'Court but 'Judge' and in such cases one has got to look the entire provision for the purpose of determining whether the matter is to be heard by the Judicial Officer as a Court or in his own personal capacity."
39. The words 'Court and Judge are sometimes used as interchangeable terms and often when the word 'Judge is employed, it is the 'Court' which is meant. This legislative practice finds expression not only in this country but in others as well In the United States, the prevailing law has been succinctly stated in 14 Am. Jur.. Courts, Section 4 in the following terras:
"While there is a well defined and generally recognised distinction between a judge and a judicial tribunal and while it takes more than a presiding officer to constitute a Court, yet the judge of a Court while presiding over it is by common courtesy called "the Court", and the words 'Court and 'Judge' are frequently used in the statutes of the various states as synonymous and convertible terms. Such terms are not, however, strictly synonymous and the Judge alone does not necessarily constitute a Court, for while the Judge is an indispensable part, he is only a part of the Court. Whether an act is to be performed by the one or the other is generally to be determined by the character of the act, rather than by such designation. Whenever the power or duty imposed is Found from a consideration of the object and purposes of the act to be one which is more properly the function of the Court, it will be so construed; and whenever it is manifest that the legislature meant the Judge, and not the Court, that meaning will be applied to the words in order so carry out the Legislative intent. 'Court' will always be construed to mean 'Judge' and 'Judge' mean 'Court', wherever either construction is necessary to carry into effect the obvious intent of the legislature."
40. These principles are also well recognised in India and the decision of the question will depend, as Khosla, J., stated in Pitman's Shorthand Academy v B. Lila Ram and Sons, AIR 1950 EP 181 (FB) upon the nature of the duties entrusted to the judicial officer, upon what are his powers and what the procedure he must follow, and whether when discharging these special duties, he act? in every way a Court of law would act.
41. See also Baburao Prahlad v. Hariharnath Kashinathrao, AIR 1939 Bom 279.
42. The statute provides that in case the landlord neglects to carry out repairs, other than annual repairs, which he is bound to make to the accommodation by law or contract the tenant is entitled to apply to the Munsif having jurisdiction for an order to the landlord for carrying out the repairs. Upon receipt of the application, the Munsif causes notice to be served on the landlord to appear and show cause against the application. Upon the hearing of the application the Munsif is empowered to direct the landlord to carry out the repairs within a specified time Now the direction is unlike any which a Court issues. It is a direction to carry out repairs No mandatory injunction bearing this character will issue, and as was observed by Joyce, J.. in Attorney General v. Staffordshire. County Council, 1905-1 Ch 336:
a mandatory order, as I understand the practice of the Court, will not be made to direct a person to repair As we all know, the Court will not superintend works of building or of repairs "
This principle was followed by this Court in Kashi Nath v Municipal Board, Agra, AIR 1939 All 375, and was one of the considerations which prevailed with Dwivedi. J. in Civil Revn. No. 1034 of 1955, D/- 15-2-1962 (All) where he held that the Munsif under Section 7-E, the same provision which is before us, acts as persona designata.
43. The statute further provides that if the landlord, in spite of such direction by the Munsif, still fails to carry out repairs, the Munsif may require the tenant to submit an estimate of the cost thereof and after considering the estimates and such other evidence as he may consider necessary he may permit the tenant to carry them out at a cost not exceeding the amount specified in the Munsif's order. The amount mentioned in the order depends upon a determination by the Munsif arrived at by reference to the estimate submitted by the tenant and after considering such other evidence "as he may consider necessary" In civil proceedings before a Court, it is the parties who consider what evidence is necessary for proving their case. Under the present provisions this is left to the discretion of the Munsif
44. Then, after the tenant has obtained to order from the Munsif permitting him to carry out the repairs, how is he to recover the amount? The statute declares that he is entitled to recover the cost from the landlord either by deducting the amount from the rent or to recover it as if it were a debt due to him by the landlord It is clear that no process of execution, as in the case of a decree of a Court, is contemplated. On the contrary where the tenant does not deduct the cost from the rent, he can recover it as if it were a debt and for that purpose, in the case of a recalcitrant landlord, institute a suit to recover the amount which suit would terminate in a decree, and it is that decree which would be executed. No execution is contemplated of the order by the Mimsif under Section 7-E. Sub-section (6).
45. It is manifest that while a special juris diction has been created by Section 7-E, a special procedure has also been set out for exercising and giving effect to that jurisdiction
46. From these several indications, it seem-to me that the Munsif acts as a persona design at and not a Court.
47. It was manifestly because the Munsit did not act as a Court that it became necessary to pro vide for an appeal expressly by this statute against the order under Sub-section (5) or (6) as if such order was a decree The original provisions of sub section (8) before they were replaced by the pre sent provisions by virtue of the U. P. (Temporary Control of Rent and Eviction Act. 1954. read is follows "(8) An appeal shall lie from the order of the Munsif under Sub-section (5) or (6) as if it were a decree and the order passed in appeal shall be final."
48. Now a decree has been defined by Sub-section (2) of Section 2 Civil Procedure Code and it is only a Court which can pass a decree the order passed by the Munsif not having been made by a Court, was inherently not a decree By fiction of law it became one and for the limited pur pose of appealing From it.
49. In AIR 1958 SC 947 the Supreme Court declared that the decision of a persona designation would not be open to appeal under the ordinary law applicable to derisions of Courts. Examining the question whether an appeal lay against an award made by an arbitrator under the Defence of India Act, it observed:
"The position therefore is that if the reference is to a Court as persona designata, its decision will not be open to appeal except to the extent that the statute so provides; out that if on the other Band, it is to a Court as Court, its decision will be appealable under the general law, unless there is something in the statute, which abridges or takes away that incident."
50. It is contended that this provision con templates an appeal to a superior Court and that indicates that the Munsif himself acts as a Court.
But It is now well settled that a mere right of appeal to a Court does not establish that the authority which made the order under appeal is it self a Court. See 1931 AC 275.
51. In 1954, the original provisions of Sub-section (8) were replaced by the following;
No appeal shall lie from the order of the Munsif passed under Sub-sections (5) and (6) which shall be final,"
52. It is urged that this indicates that the Munsif acts as a Court under Section 7-E. It is said that it is only because the order of the Mun-sif is an order of the Court, and therefore appealable under the general law, that it became necessary to enact the present provision taking away the right of appeal available under the general law. It is not possible to accept this contention. In ray judgment, this provision was inserted ex abundanti cautela, for the purpose of removing any doubts existing after the deletion of the original provision providing for a right of appeal. It was not necessary to frame this subsequent provision No appeal would lie under the general law from the order of the Munsif under Section 7-E A right of appeal must be expressly conferred and unless some provision can be referred in this behalf it cannot be seriously contended that an appeal lies against a particular order or decree, In the case of a decree, provision for a right of appeal is contained in Section 96 and Section 100 Civil Procedure Code. From what I have said above it is obvious that the order under Sub-section (5) or (6) is not a decree. Considered as an order, there is no provision for appealing against it under Section 104 of the Code. And Section 104 expressly precludes an appeal against orders other than those referred to therein, unless provision for such appeal is made elsewhere in the body of the Code or by any law For the time being in force. Therefore, but for the original provision of Sub-section (8), an order under Sub-section (5) or (6) would not have been open to appeal.
53. It is next pointed out that Section 7-E contemplates that an application by the tenant must be made to "the Munsif having jurisdiction", and that as the Act nowhere indicates which Munsif has jurisdiction, we must in this behalf fall back upon the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887 It is contended that as the provisions of the latter enactment when speaking of the jurisdiction of "the MunsiF really mean the jurisdiction of "the Court of the Munsif", even so must we comprehend the words "the Munsif having jurisdiction" in Section 7-E as meaning the "Court of the Munsif having jurisdiction"
54. It is true, and this is a matter upon which I see no room for legitimate dispute, that the word ''Munsif' in the statute of 1887 means "the Court of the Munsif". The preamble of that Act indicates that it was enacted to consolidate and amend the law relating to Civil Courts in Bengal, Agra and Assam. Section 3 of the Act creates four classes of Civil Courts, the Court of the District Judge, the Court of the Additional Judge, the Court of the Civil Judge and the Court of the Munsif Section 13 deals with the local limits of the jurisdiction of the Civil Courts, and indeed Sub-section (1) expressly empowers the State Government to determine 'the local limits of the jurisdiction of any Civil Court under this Act". When Sub-sections (2) and (3) of the same section speak of the local jurisdiction assigned to Munsifs and Civil judges, they in fact refer to the jurisdiction of the Civil Courts over which they preside. Sections 14, 15, 16 and 17 are provisions which plainly refer to Courts. When the provision's of Ch. III and IV refer" to the Munsif, the Civil Judge and the District Judge, reference is intended to the Court of the Munsif, of the Civil Judge or of the District Judge. This is so because the entire enactment is concerned solely with Civil Courts, their organisation, administration and their jurisdiction.
55. The U. P. (Temporary) Control of Rent and Eviction Act, however, is a very different legislative measure. It is devoted to the control of letting and rent and the prevention of eviction. And whether the "Munsif" in Section 7-E of the Act means the "Court of the Munsif" will depend not upon what is contained in the Bengal, Agra and Assam Civil Courts Act but upon the legislative intent expressed in the statute in which Section 7-E is incorporated, which, as I have already stated, points to the conclusion that the "Munsif' is Dot a Court. When the Legislature used the words "the Munsif having jurisdiction" in Section 7-E, it meant the presiding officer of that Munsifs Court which has jurisdiction. The words "having jurisdiction" have been added merely as a descriptive expression for identifying the Munsif selected as a "persona designata."
56. We were next referred to Rule 10 of the Rules framed under the U. P. (Temporary) Control of Rent and Eviction Act, and it was pointed out that the form (Appendix C) prescribed tinder that rule recited that the application by the tenant was to be made in the Court of the Munsif. This argument cao carry the case no further, because as is well settled a rule cannot proceed beyond the scope of the statute under which it is made, [t is necessary to note that the jurisdiction under consideration is conferred upon the Munsif not by the rules, but by the statute.
57. In support of the contention that the Munsif under Section 7-E acts as a Court, reliance was placed upon a decision of the Supreme Court in AIR 1961 SC 606. Upon a true consideration of the judgment, however, it seems to me that no support can be derived from this decision The question before the Supreme Court was whether a District Magistrate empowered to grant permission to a landlord to sue a tenant for ejectment under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act was a persona designata, and it was held that he was not The Supreme Court railed upon the dictum of Schwabe, C. J., in Partbasarathy Naidu v. Koteshwara Rao, AIR 1924 Mad 561, where he drew a distinction between "Judges acting as Courts or acting merely as persona designata, that is to say, persons selected to act in the matter in their private capacity and not in their capacity as fudges". To comprehend what was determined by the Supreme Court, it is necessary to appreciate what was decided by the Madras High Court in that case. The question before that Court was whether a District or Subordinate Judge, before whom an election petition was required to be presented by the rules under the Madras Local Boards Act, 1920. was acting as a Court or us a persona designata Schwabe, C. J., upon examination of the rules, found that there were clear indications that when the word 'Judge' was used, the rule making authority intended to refer to the 'Court' He observed;
"But as the word 'Judge' is used and not the word 'Court', one has to look carefully to see whether the word 'Judge' was used of him In his capacity, as Judge or in his personal capacity, and I think great light is thrown upon this by two other rules. Rule 12 (2) of the rules for election refers to 'an election or other competent Court' and it is quite clear that it is then referring to a Court of District Judge or Subordinate Judge; and by Rule 4 (3) of the rules for the conduct of enquiries power is given to the District or Subordinate Judge fn certain cases 'to direct any Court subordinate to him to hold the enquiry'. I find it Impossible to hold that a reference to a Judge with power to refer to a Court subordinate to him can mean anything else than reference to a Judge sitting as a Judge in the exercise of his ordinary Jurisdiction extended for that purpose."
58. It is obvious, therefore, that in the observations quoted by the Supreme Court, when Schwabe. C J., referred to a person acting in his capacity as Judge he Intended to refer to that person acting as a Court, and when he referred to a person acting in his private capacity be meant a capacity other than as a Court
59. Accordingly, when the Supreme Court in AIR 1961 SC 608 applied this dictum of Schwabe, C. J., it referred to the District Magistrate "named by virtue of his office" and intended to convey that when the words "District Magistrate" were used, the legislature Intended reference to that office, "whose powers the Additional District Magistrate could also exercise."
60. In the case before us, the Munsif has not been mentioned by virtue of his functions or powers as a Court; It is the Munsif "in his private capacity." in a capacity other than as a Court
61. In Civil Revn No 992 of 1958. D/ 6-4-1962 (All) a Division Bench of this Court analysed the provisions of Section 7 E, and arrived at the conclusion, that a Munsif, functioning under Section 7-E acted as a persona designata.
62. In Civil Rem No. 1212 to 1955, D 20-4-1961 (All) V. Bhargava. J., was also of the same view.
63. In Second Appeal No 1389 of 1955, D. 18-8-1961 (All) a Division Bench ot this Court, while referring certain other questions of law to larger Bench, held that the Munsif under Section 1-B of the U. F. (Temporal) Control of Rent and Eviction Act acted as a Court. That decision can be justified by reference to the particular provisions of Section 7-B, and, in my view cannot apply to the interpretation of Section 7-E where the provisions are materially different. There are certain observations, however, in that Judgment which interpret the decision In AIR 1961 SC 606. In the light of what I have said earlier, I would express my respectful disagreement with those observations.
64. The Munsif, while acting under the provisions of Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act acts as a person a designata and not as a Court, and a revision application against an order made under Section 7-E is not maintainable, and I would decide the question referred accordingly.
BY THE COURT:
65. For the reasons given in our judgments we hold that a Munsif exercising jurisdiction under Section 7-E of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 is a Civil Court and not a persona designata and that an order passed by him is revisable by this Court under Section 115, Civil Procedure Code.