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M. Abdul Wahid Sahib Vs. Dewanjee Abdul Khader Sahib - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1947Mad400; (1947)1MLJ207
AppellantM. Abdul Wahid Sahib
RespondentDewanjee Abdul Khader Sahib
Cases Referred and Kiron Chandra v. Kalidas Chatterjee
Excerpt:
- .....in limine by the respondent that the application is not maintainable as in functioning as an appellate authority in the matter in question the district judge of bellary is a persona designata and not a court which is subordinate to this court, and that consequently no application for the transfer of appeal before such authority can be maintained in this court. the madras buildings (lease and rent control) act (xv of 1946) regulates the letting of residential and non-residential buildings, and control of leases of such buildings. under that act a controller is appointed who has been invested with certain powers. a right of appeal has been given against some orders passed by him under section 12 of the act. that section empowers the provincial government by general or special order.....
Judgment:
ORDER

Yahya Ali, J.

1. This is an application under Section 24 of the Code of Civil Procedure to transfer C.M.A. No. 18 of 1946 on the file of the District Court of Bellary to some other District Court in the Province. An objection has been raised in limine by the respondent that the application is not maintainable as in functioning as an appellate authority in the matter in question the District Judge of Bellary is a persona designata and not a Court which is subordinate to this Court, and that consequently no application for the transfer of appeal before such authority can be maintained in this Court. The Madras Buildings (Lease and Rent Control) Act (XV of 1946) regulates the letting of residential and non-residential buildings, and control of leases of such buildings. Under that Act a Controller is appointed who has been invested with certain powers. A right of appeal has been given against some orders passed by him under Section 12 of the Act. That section empowers the Provincial Government by general or special order notified in the official Gazette to confer on such officers and authorities as they may deem fit, the powers of appellate authorities for the purpose of the Act in such areas or in such classes of cases as may be specified in the order. The remaining sub-sections of Section 12 embody a special procedure that is prescribed with regard to such appeals. Under Clause (6), Sub-section (1), an appeal may be filed by any person aggrieved by an order passed by the Controller within 15 days. Under Sub-section (2) that appellate authority may order stay of further proceedings in the matter pending decision on the appeal. Under Sub-section (3) the appellate authority is given powers to send for the records of the case from the Controller, and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as he thinks fit either personally or through the Controller, to decide the appeal. In exercise of the power vested under this section the Provincial Government issued an order on the 11th November, 1946, which is notified in Fort St. George Gazette, dated the 19th November, 1946, conferring on the District Judge of Bellary, inter alia the powers of an appellate authority for the purpose of the Act in respect of cases arising in the District of Bellary. Likewise powers have been conferred on all the District Judges and some of the Subordinate Judges in the Presidency in respect of cases arising in their respective jurisdictions. The question is whether having regard to the provisions of Section 12 of the Act and the language of the Notification mentioned above, the District Judge in functioning as an appellate authority is a persona designata or a Court subordinate to this Court. There have been various decisions bearing upon this point. The test to be applied in such cases is whether the appointment of the authority was in his personal capacity or as a Court. From the language of Section 12 it seems clear that the District Judges and the Subordinate Judges mentioned in the Notification were appointed as persona designata and not as Courts. The procedure which is required for the purposes of the appeal has been embodied in Section 12, which would have been wholly unnecessary if the appellate authority was to function as a Court, in which case the provisions of the Code of Civil Procedure would be automatically applicable. I may refer to two decisions throwing considerable light upon this matter. H.A. Aziz v. Kilyoboy I.L.R.(1926) Rang. 304 and Kiron Chandra v. Kalidas Chatterjee : AIR1943Cal247 . The preliminary objection raised by the respondent is upheld and the petition is dismissed.


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