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Lodge Malaysia & Others v/s M/s. Tamil Nadu Real Estates & Another

    C.R.P. No. 2559 of 1983

    Decided On, 15 July 1983

    At, High Court of Judicature at Madras


    For the Petitioner: A.M. Loganathan, Advocate. For the Respondent: V. Sridevan and R. Balachander, Advocates.

Judgment Text

In this revision petition against the order of the Court of the Rent Controller, enabling examination of Mrs. S.J. Ispahani alias Shahr Bano Begum and Mrs. Fathima Sultan Begum on commission, issued under section 18-A of Tamil Nadu Act XVIII of 1960, this civil revision petition is filed. The first contention is that while exercising powers under section 18-A of the Act, the Court can appoint a Commissioner only for local investigation, and it cannot extend to a Commission being issued to examine witnesses. The learned counsel for the petitioners states that an amendment was incorporated under section 15 of Act XXIII of 1973, consequent to the decisions of this Court reported? in Seethalakshmi Ammal v. Rajammal1 and Chinnakesavalu v. Mansukhlal2. He would state that when the amendment had been effected consequent to such pronouncements, it cannot be treated as having conferred powers on the Controller to issue Commissions for all such purposes, as may be done under the Civil Procedure Code. He refers to rule 12 (2) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, 1974, to plead that (it contemplates the procedure to be adopted by the Controller in holding an enquiry and, therefore, if the examination is effected on Commission, it would disentitle the Controller to-record evidence by himself. After adverting to Order 26, Civil Procedure Code, he concludes his contention on this point by stating that in any event, if there is power conferred in the said section, it would not result in a right being conferred on witnesses to demand that they should be examined only on Commission.

2. This contention is devoid of substance because, whatever may be the factor which prompted the Legislature to introduce the amendment under Act XXIII of 1973, when the Controller had been conferred with powers to appoint a Commissioner for all those purposes which are contemplated under the Civil Procedure Code, there is nothing to infer that the said section is confined only to a Commission being issued for local investigation. As such, a restricted approach is neither spelt out in section 18-A, nor could be gathered from the other sections, in the Act. Hence, This contention fails.

3. The next point taken is, when the Controller is the persona designata, he cannot in turn delegate his duties contemplated under rule 12 (2) to a Commissioner. Here again, this contention overlooks the fact that when statutory power had been conferred, even if the Rent Controller is the persona designata, power having been conferred upon him to exercise what could be done under the Civil Procedure Code, they are available and could be put into force, in whatever manner required. In effect, when he exercises powers under section 18-A of the Act, he discharges one of his statutory functions.

4. The third contention is, these two persons are not practising purda, and in fact P.W. 1 has already given evidence that one of these two persons had been collecting rents. The claim made in the affidavit that the second respondent herein is a purdah woman had been disputed in the counter-affidavit filed and, therefore, the Rent Controller ought to have conducted an enquiry to find out, whether these two persons are practising purdah, or not.

5. The learned counsel refers to the decision reported in Mohammad Ismail Maracair v. Wazir Bi Bi Saheba1, and pleads that if for any reason the claim made that they are not purdah women is not acceptable to Court, at least they should be examined in Court as suggested in the said decision.

6. On the aspect as to whether they are practising purdah or not, when the Court be-low had chosen to acept the evidence of P.W.1, who had sworn to the fact that his mother is a strict purdah woman and not adopting western style, and when the revision petitioners had not adduced any contra evidence, except to vaguely counter the claims made by the woman, this Court considers that a purdah woman cannot be compelled to appear in Court, in view of what is provided in section 132, Civil Procedure Code. It is not as if they can dictate to Court but the circumstances in which they are placed, justify their claiming privilege. To still claim that they can appear in Court room wherein the public can be excluded is an unreasonable demand. When the material on record goes to show? that they are practising purdah and when the Act itself enables a Commissioner appointed under section 18-A of the Act to examine them and record their evidence, this Court does not find any prejudice being caused to the revision petitioners, on such examination being affected.

7. Lastly, it is pleaded that an young Advocate has been appointed as an Advocate-Commissioner and hence there may not be an effective recording of evidence as per rule 12 (2). Even so, whe

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n experienced Advocate appearing for both parties are present and insist upon their objections being recorded no irregularity could occasion. The Advocate-Commissioner would be only recording evidence along with the objections taken from time to time. If there are any infirmities committed by him, nothing precludes the affected party to file objections in the Court, and thereafter seek for suitable reliefs. Hence, no valid ground is made out to interfere with the order of the Court below. The civil revision petition is dismissed. No costs.