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M.A.H. Farook Vs. Kalikrishna Dass - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)2MLJ46
AppellantM.A.H. Farook
RespondentKalikrishna Dass
Cases ReferredIn R. K. Sen v. Union
Excerpt:
- .....of india shall, according to clause 3 of that article, comprise the territories of the states, the union territories specified in the first schedule and such other territories as may be acquired. this is after the substitution of the original clause (2) of article 3 by the present clause (2) by the constitution (seventh amendment) act, 1956, article 366 (30) of the constitution defines what a union territory is, and says : union territory means any union territory specified in the first schedule and includes any other territory comprised within the territory of india but not specified in that schedule.entry 6 in part ii of the first schedule to the constitution says that pondicherry is a union territory and that it comprises 'the territories which immediately before the sixteenth day of.....
Judgment:

A. Varadarajan, J.

1. The respondent, a Madathipathi, filed the suit against the petitioner and three others in the District Munsif's Court, Ramanathapuram for the recovery of Rs. 750 from all the four defendants as the estimated cost of the Samprokshanam to be performed in Sri Ramanathasveami Temple at Rameswaram and for a permanent injunction restraining the first defendant, the Executive Officer of the Temple, from allowing non-Hindus to enter the Temple beyond the third prakaram. The allegation in the plaint is that the first defendant and the other defendants took the petitioner, the fourth defendant, a Muslim, upto the gate of the sanctum sanctorum of the Temple on 2nd May, 1970, honoured him by a parivattam and gave him vibhuthi and kunkumam holy Ganges water, and kodi theertham and kunkumam and that the petitioner threw the vibhuthi and kunkumam with contempt, used the Ganges water to rinse his hands and passed on the kodi theertham to his Personal Assistant and by these acts desecrated the Temple and necessitated Samprokshanam. The petitioner admitted that he was honoured with parivattam and taken by the first defendant upto the Maha Mantapam of the Temple and given prasadams. He has denied that he threw away the vibhuthi and kunkumam and used the Ganges water for rinsing his hands, and has stated that he accepted the prasadams given to him with due respect and reverence and passed them on to his confidential Assistant. He has pleaded in the written statement that the Government of Tamil Nadu has passed a Government Order lifting the prohibition against non-Hindus entering a Hindu Temple.

2. The petitioner, who is at present the Chief Minister of Pondicherry, filed the application, out of which this civil revision petition has arisen, under Section 133 and Order 26, Rules 1 and 4 of the Code of Civil Procedure, for being examined on commission at his residence at Pondicherry on 15th December, 1972 before his intended departure on 16th December, 1972 to a foreign country. He averred in the affidavit that Pondicherry is far away from the territorial jurisdiction of the District Munsif's Court, Ramanathapuram, that on account of pressure of work as Chief Minister of the State he was unable to attend the Court at Ramanathapuram for giving evidence and that it was just and necessary that he should be examined on commission. The respondent opposed the petition, contending that in these days of fast travel, no part of the country could be said to be far away from the jurisdiction of the lower Court, He stated in his counter-affidavit that parties to the suit could not claim to be examined on commision. Regarding the alleged inability of the petitioner to attend the Court at Ramanathapuram on account of pressure of work, he contended that when the petitioner could go to foreign country he could very well come to the Court at Ramanathapuram for giving evidence. He further contended that it would not be possible for the Court to appreciate the petitioner's evidence in the proper perspective if he was not examined in Court. He apprehended danger to the person of himself and that of his advocate from certain political elements in Pondicherry in the event of their visiting Pondicherry in connection with the examination of the petitioner on commission.

3. The learned District Munsif declined to accept the respondent's case that there would be any danger to the person of himself and that of his advocate if they visited Pondicherry in connection with the examination of the petitioner on commission. Nevertheless, he expressed the view that having regard to the status of the petitioner, the respondent's advocate might not be quite free to cross-examine the petitioner at Pondicherry as well as he could do in the Court at Ramanathapuram. Relying upon the decision of this Court in Subramanion Chettiar, In re : AIR1955Mad210 . and A. R. Lakshmana Chettiar v. Vadivelu Ambalam (1967) 1 M.L.J. 252. the learned District Munsif rejected the argument advanced on behalf of the petitioner that the demeanour of the witness is not of much importance. He expressed the view that the petitioner could not claim the exemption under Section 133 of the Civil Procedure Code, except in cases in which he is sued in his official capacity for anything done in discharge of his duties as the Chief Minister of Pondicherry and has observed in his order that the inconvenience and expenses that the respondent would be put to if the petitioner had to be examined on commission at Pondicherry could not be overlooked. In this view, he dismissed the petition with costs.

4. The learned Counsel for the petitioner stated that the distance between Pondicherry and Ramanathapuram is over 200 miles. It is only in the case of witnesses, Order 16, Rule 19 (b) says :

No one shall be ordered to attend in person to give evidence unless he resides without such limits (local limits of the Court's ordinary original jurisdiction) but at a place less than fifty or where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where a Court is situate less than two hundred miles distance from the Court-house.

So, the petitioner who is not a witness cannot seek to be examined on commission under Order 16, Rule 19, Civil Procedure Code as a witness on account of the distance between Pondicherry and Ramanathapuram.

5. The petitioner is the fourth defendant in the suit and as such he could not have chosen the jurisdiction of the lower Court. The Court should deal with an application of a defendant to examine himself as a witness on commission as distinguished from an application by the plaintiff, vide Viswanathan Chetty v. Somasundaram Chetty alias Nagappa Chetty 46 M.L.J. 131 : A.I.R. 1924 Mad. 541. The defendant's application should be treated differently and not like an application by the plaintiff who could choose the forum for the action unlike the defendant. Order 26, Rule 4 (1) (a) says :

Any Court may in any suit issue a commission for the examination of any person resident beyond the local limits of its jurisdiction.

Panchapakesa Ayyar, J. in Subramanion Chettiar : AIR1955Mad210 . In re, repelled the contention that a commission should not have been issued to examine a party, and a defendant, and has observed that a commission can be issued under the Code of Civil Procedure for the examination of 'any person' including a defendant. Therefore, the petitioner could claim, under the provisions of Order 26, Rule 4 (1) (a) to be examined on commission having regard to the distance. Dealing with the contention that it was necessary to examine the person in Court so that the Court might observe the demeanour, Panchapakesa Ayyar, J., has observed in that decision.

I cannot agree that this would exclude the jurisdiction of the Court for issuing the commission. In all cases where a commission is issued, the Court cannot observe the demeanour of a witness. The Value of ' demeanour' has been too much emphasized; demeanour is one of those subtle things which are important only when the evidence is evenly balanced. It also gives no opportunity for either side to cross-examine the Judge who observes the demeanour of the witness and acts on it. So it is one of those medieval reliefs, which, though they have some value, are not so important as to take away the rights under the Civil Procedure Code to issue a commission in deserving cases like this.

Even in Viswanathan Chettf's case 46 M.L.J. 131; A.I.R. 1924 Mad. 541. referred to above, where the defendant had been a resident of Rangoon with his family for many years, it has been observed by Krishnan, J., that the defendant should have been allowed to be examined on commission at Rangoon and that the watching of his demeanour which the lower Court had referred to in support of its order was not a sufficiently strong ground for dragging the defendant all the way from Rangoon to Ramnad. Therefore, the fact that the petitioner is a defendant and that the Court will not have the opportunity to observe his demeanour if he is examined on commission, is not a sufficient reason for disallowing the petitioner's application for examination on commission.

6. It has not been contended by the respondent that Pondichcrry is not a State and that the petitioner cannot fall within the category of 'Ministers of States ' mentioned in item (ix) in Section 133 (1) of the Civil Procedure Code, which says that the persons mentioned in that sub-section shall be entitled to exemption from personal appearance in Court. According to Article 1 of the Constitution, India is a Union of States and the territory of India shall, according to Clause 3 of that Article, comprise the territories of the States, the Union territories specified in the First Schedule and such other territories as may be acquired. This is after the substitution of the original Clause (2) of Article 3 by the present Clause (2) by the Constitution (Seventh Amendment) Act, 1956, Article 366 (30) of the Constitution defines what a Union territory is, and says :

Union territory means any Union territory specified in the First Schedule and includes any other territory comprised within the territory of India but not specified in that schedule.

Entry 6 in Part II of the First Schedule to the Constitution says that Pondicherry is a Union territory and that it comprises 'the territories which immediately before the sixteenth day of August, 1962, were comprised in the French Establishments in India known as Pondicherry, Karikal, Mahe and Yanam.' Article 367 (1) of the Constitution says :

Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of this Constitution as it aplies for the interpretation of an Act of the Legislature of the Dominion of India.

Article 372 (2) says :

For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any Court of law.

Article 372-A inserted by the Constitution (Seventh Amendment) Act, 1956, empowers the President to adapt laws and says :

(1) For the purposes of bringing the provisions of any law in force in India or in any part thereof immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, into accord with the provisions of this Constitution as amended by that Act, the President may by order made before the 1st day of November, 1957, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any Court of law.

(2) Nothing in Clause (1) shall be deemed to prevent a competent legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.

The General Clauses Act has not been adapted for the interpretation of the Constitution, because Article 367 has not been amended and it has not been laid down that the General Clauses Act, as adapted or modified under any Article other than Article 372 will also apply to the interpretation of the Constitution. Before the 16th day of August, 1962, Pondicherry was comprised in the French Establishments in India known as Pondicherry, Karikal, Mahe and Yanam. Bhargava, J., has observed in S. K. S. Singh v. V. V. Gin : [1971]2SCR197 . in paragraphs 247 and 248, thus :

Article 54, no doubt, lays down that all elected members of the Legislative Assemblies of the States are to be included in the electoral college; but the word 'States' used in this Article cannot include Union Territories. It is true that, under Article 367, the General Clauses Act applies for the interpretation of an Act of the Legislature of the Dominion of India; but that Act has been applied as it stood on 26th January, 1950, when the Constitution came into force, subject only to any adaptations and modifications that may be made therein under Article 372. The General Clauses Act, as it was in 1950 and as adapted or modified under Article 372, did not define ' State ' so as to include a Union Territory. The Constitution was amended by the Constitution (Seventh Amendment) Act, 1956, which introduced Article 372-A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act, 1956. It was in exercise of this power under Article 372-A that Section 3 (58) of the General Clauses Act was amended, so that, thereafter, ' States' as defined included Union Territories also. The new definition of ' State' in Section 3(58) of the General Clauses Act as a result of modifications and adaptations under Article 372-A would, no doubt, apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Article 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Article 372 will also apply to the interpretation of the Constitution. Since, until its amendment in 1956, Section 3 (58) of the General Clauses Act did not define,' State' as including Union Territories for purposes of interpretation of Article 54, the Union Territories cannot be treated as included in the word ' State'.

The second reason why it must be held that members of Legislatures of Union Territories cannot form part of the electoral college under Article 54 is that that Article confines the electoral college to members of Legislative Assemblies of the States and there are no Legislative Assemblies in the Union Territories. Under Article 168, for every State there is to be a Legislature which shall consist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that where there are two Houses of Legislature, one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House, it is to be known as the Legislative Assembly. On the face of it only members of Houses known as Legislative Assemblies under Article 168 can be members of the Electoral College under Article 54. In the case of Union Territories, the provision for Legislatures is contained in Article 239-A, but that Article does not mention that any House of the Legislature created for any of the Union Territories will be known as a Legislative Assembly. All that that Article lays down is that Parliament may, by law, create a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union Territory. Such a Legislature created

by Parliament is not a Legislative Assembly as contemplated by Article 168 or Article 54. Members of Legislatures created for Union Territories under Article 239-A cannot, therefore, be held to be members of Legislative Assemblies of States.

Therefore, the provisions of the Constitution cannot be interpreted in accordance with the General Clauses Act, 1897. In Advance Insurance Company Limited v. Gurudasmal A.I.R. 1969 Delhi 336. the learned Judges have held that Section 3 (58) (b) of the General Clauses Act does not apply to the interpretation of the Constitution and hence the word 'State' in Entry 80 of List I cannot be construed to include 'Union Territories', relying on the definition of ' State' introduced therein by the adaptation of 1956. Therefore, although, under Article 239, save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks, fit, through an administrator to be appointed by him with such designation as he may specify, and, under Article 239-A. Parliament may by law create for any of the Union Territories of Goa, Daman and Diu, Pondicherry and Mizoram, a body whether elected or partly nominated and partly elected, to function as a Legislature for the Unin territory, or a Council of Ministers, or both with stich constitution, powers and functions, in each case, as may be specified in the law, there is no distribution of legislative power in the respective Union territories and Parliament has plenary power to legislate for those territories on any subject. Bachawat, J., who spoke for the Bench of the Supreme Court, in Kanniyan v. Income-tax Officer A.I.R. 1968 S.G. 627. has observed in that case, thus :

Parliament has plenary power to legislate for the Union territories with regard to any subject. With regard to Union territories there is no distribution of legislative power. Article 246 (4) enacts that 'Parliament has power to make laws with respect to any matter for any part of 'the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List'. In R. K. Sen v. Union : [1966]1SCR430 . it was pointed out that having regard to Article 367, the definition of ' State' in Section 3 (58) of the General Clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or context. Under that definition, the expression State as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 'shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory'. But this inclusive definition is repugnant to the subject and context of Article 246. There, the expression ' State' means the States specified in the First Schedule. There is a distribution of legislative power between Parliament and the Legislatures of the States. Exclusive power to legislate with respect to the matters enumerated in the State List is assigned to the Legislatures of the State established by Part VI. There is no distribution of legislative power with respect to Union territories. That is why Parliament is given power by Article 246 (4) to legislate even with respect to matters emumerated in the State List. If the inclusive definition of 'State' in Section 3 (58) of the General Clauses Act were to apply to Article 246 (4), Parliament would have no power to legislate for the Union territories with respect to matters enumerated in the State List and until a Legislature empowered to legislate on those matters is created under Article 239-A for the Union territories, there would be no Legislature competent to legislate on those matters; moreover, for certain territories such as the Andaman and Nicobar Islands no Legislature can be created under Article 239-A, and for such territories there can be no authority competent to legislate with respect to matters enumerated in the State List. Such a construction is repugnant to the subject and context of Article 246. If follows that in view of Article 246 (4), Parliament has plenary powers to make laws for Union territories on all matters.

Union territories are centrally administered by the President acting through an Administrator. The learned author, Dr. V. D. Mahajan, has stated at page 150 of the Fourth Edition of the General Clauses Act, 1897, thus :

The Seventh Amendment of the Constitution in 1956, abolished Part B and Part C States and divided the territories of India only into two classes viz., territories of the States and the Union Territories. Consequently, the Adaptation of Laws Order, 1956 had to be issued under Article 372-A of the Constitution. However, the adaptations made in the General Clauses Act under Article 372-A were not to apply to the interpretation of the Constitution inasmuch as Article 367 (1) of the Constitution permits the use of the General Clauses Act, as adapted under Article 372 only for such purposes. It follows that the definition of State, as introduced in the General Clauses Act for the first time by the Adaptation of Laws Order, 1956, is not to be used to interpret the word ' State ' as used in the Constitution. The existing definition of ' State' in Section 3 (58) (b) of the General Clauses Act, is not, therefore, to be applied to the interpretation of the Constitution at all for the purposes of the cases before the Court.

Therefore, it has to be found that Pondicherry is not a State according to the Constitution. But, it will fall within the definition of' State ' under Section 3 (58) of the General Clauses Act, which reads thus :

'State'--

(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and

(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory.

According to Section 4 of the General Clauses Act, 1897, the definitions in Section 3 of that Act apply also, unless there is anything repugnant in the subject or context, to all Acts of the Governor-General in Council made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. The Code of Civil Procedure is a Central Act which received the assent of the Governor-General on the 21st day of March, 1908 and came into force on the first day of January, 1909. Therefore, the provisions of the General Clauses Act, 1897, have to be applied in the interpretation of the Code of Civil Procedure. 'Ministers of States', falling in item (ix) in Section 133 (1) of the Code of Civil Procedure, would, according to Section 3 (58) of the General Clauses Act, include the Chief Minister of Pondicherry, a Union territory. Therefore, the petitioner could claim exemption under Section 133 of the Civil Procedure Code.

7. The view of the learned District Munsif that the petitioner could claim the exemption under Section 133 of the Civil Procedure Code only if he had sued in respect of anything done in his official capacity, cannot be accepted. There is nothing in that section to warrant such an inference and it is not open to the learned District Munsif to read more than what is contained in the section which says that ' Ministers of States' shall be entitled to exemption from personal appearance in Court. Therefore, I find that the petitioner, as Chief Minister of Pondicherry, is entitled to claim the exemption under Section 133 and could claim the privilege of being examined on commission in the present case where he has been sued for something alleged to have been done by him in his personal and individual capacity, and he is only bound by Clause (3) of that section to pay the costs of the Commission.

8. The petitioner can claim exemption 'from personal appearance in Court, but not claim to be examined in his own house. Having regard to the present status of the petitioner and what has happened viz., the institution of the suit in the District Munsif's Court, Ramanathapuram, and the opposition to the petitioner's application for examination on commission, I think that the respondent and his Counsel will not feel quite free to cross-examine the petitioner if he is examined on commission in his own house. In the interests of justice, I think it will be desirable to have the petitioner examined at some other place in any one of the Travellers Bungalows or Circuit Houses, if any, in the Pondicherry Union Territory. He will be examined accordingly.

9. The respondent apprehends danger to the person of himself and that of his Counsel if they were to go to Pondicherry for the examination of the petitioner on commission. The apprehension may not be well-founded. However, if the petitioner, a man of importance and status, should feel, as it is hoped that he will do, that the respondent should not have any apprehension at all, he may have himself examined on commission in the Inspection Bungalow, Nagapattinam, which is very close to the border of the Union territory of Pondicherry.

10. The petition is allowed accordingly with costs. The lower Court's order is set aside. The petitioner should deposit a sum of Rs. 200 towards Commissioner's fees into the lower Court within a month from this date, failing which the petition will stand dismissed with costs. As soon as the deposit is made, the lower Court will appoint a suitable advocate as Commissioner and fix a date and venue for the examination of the petitioner as aforesaid in consultation with the learned Counsel for the parties.


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