Bhanumathi vs Eappen and Another

C.A. Vaidialingam, J.—In this Civil Revision Petition Mr. M. M. Abdul Kader,, learned counsel for the petitioner, challenges the order of the learned Munsiff of Parur dated 25th October 1965, accepting claim, made by the 1st respondent herein in Election Petition 1 of 1964. This revision petition has been filed u/s 115 of the Code of Civil Procedure; and a preliminary objection has been raised by Mr. M. C. Sen learned counsel appearing for the contesting respondent, that the revision petition is incompetent. Inasmuch as I am accepting the contention of the learned counsel for the respondent, I will only refer to the essential facts, which are necessary for the purpose of understanding as to how exactly Election Petition 1 of 1964 happened to be filed and the nature of the relief granted by the authority as well as the attack that is made by the learned counsel for the petitioner, as against that order. The 1st respondent to this revision petition, who was an elected member of the Panchayat in question, filed an application u/s 22 of the Kerala Panchayats Act, 1960 (Act XXXII of 1960), hereinafter to be referred to as the Act, for declaring that the election of the revision petitioner is irregular and improper, and that the rejection of the nomination of the 2nd respondent herein is also irregular. According to the 1st respondent, the nomination of the 2nd respondent ought not to have been rejected. Ultimately the 1st respondent asked for a declaration that the election of the revision petitioner is irregular and improper and that it has to be set aside. That application was made to the Munsiff of Parur ; and the Munsiff, by his order dated 25th October 1965, has ultimately allowed the application filed by the 1st respondent, and declared the election of the revision petitioner as void. The Munsif has further declared that the 2nd respondent herein as a member of the Panchayat in question. It is the said order of the Munsif, that is under attack in this revision, on behalf of the petitioner.

As a preliminary objection regarding the maintainability of this revision petition has been raised by learned counsel appearing for the contesting respondent, it is necessary to refer to some of the provisions of the Act, particularly Sections 22, 24 and 129, as well as to the rules framed under those Sections, namely the Kerala Panchayats (Decision of Election Disputes) Rules, 1963, hereinafter to be referred to as the Rules.

Section 22 of the Act deals with determination of validity of elections. Under sub-section (1) of that section, it is seen that for the various grounds mentioned in clauses (a) to (d) thereof the Munsif may declare the election of the member concerned--if he is satisfied after such inquiry as he considers necessary--to be invalid; and such declaration is to be final. But under sub-section (1) of Section 22 it is also to be noted that an application can be made by a person referred to in sub-section (2), within the period specified therein. Sub-Section (2) of Section 22 deals with persons who are entitled to file such an application, as well as the period within such the application is to be made. The substance of that provision is to the effect that the person who is entitled to file an application must be a person qualified to vote at the election, in which any question mentioned in sub-section (1) is involved; and the period within which the application is to be filed is within 15 days after the date of the declaration of the result of the election. That party, under those circumstances, can apply to the Munsif for determination of the question. Subsection (4) of Section 22 gives jurisdiction to the Munsif to deal with cases of disqualification incurred after assumption of office. There again, it provides that the declaration of the Munsif shall be final.

Sub-sections (5) and (6) of Section 22 of the Act are, in my opinion, fairly important, and they are as follows:

(5) Subject to the provisions of this Act and the rules to be framed on this behalf any enquiry under sub-section (I) or sub-section (4) shall be held by the Munsif as early as possible in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit.

(6) The term ''Munsiff'' for the purposes of this section and section 24 shall mean the Munsiff having jurisdiction over the area in the panchayat; and in the case of a Panchayat area comprised within the jurisdiction of more than one Munsif, such Munsiff as may be authorised by District Judge having jurisdiction over the area.

From the extracts quoted above, it will be seen that the procedure to be adopted by the Munsif in an inquiry under sub-section (1) or sub-section (4) of Section 22, is to be "subject to the provisions of the Act and the rules to be framed on that behalf", and in accordance with the procedure applicable under the CPC when trying a suit. It will also be seen that the expression "Munsif" takes in a Munsif having jurisdiction over the area in the Panchayat; and if in respect of a Panchayat more than one Munsif have their jurisdiction, then power is given to the District Judge having jurisdiction over the area to authorise any particular Munsif to deal with the matter. It is really by virtue of the provisions contained in these sub-section, that the 1st respondent herein filed the application to set aside the election of the revision petitioner, namely Election Petition No. 1 of 1964 before the Munsif of Parur.

Section 24 of the Act deals with election and term of office of President and Vice-President. It will be seen that under clause (d) of sub-section (1) of this Section, provision is made to the effect that in the event of a dispute arising as to the validity of the election of the President or Vice-President, the dispute shall be referred to the Munsiff for decision in the prescribed manner. It is also provided that such decision shall be final. The expression "prescribed" has been defined in section 2 sub-section (24) as meaning "prescribed by rules and made under the Act". In sub-section (3) of section 24 it is provided that the provisions contained in sub-section (5) of section 22, shall be applicable to the proceedings of the Munsif under clause (d) of sub-section (1) of section 24. That is, there again it will be seen that the exercise of jurisdiction will be subject to the provisions of the Act and the rules made thereunder. Therefore, it will be seen that inasmuch as power is given to the authorities to frame rules under sub-section (5) of Section 22 of the Act, those rules and the other provisions of the Act will have quite naturally to govern the nature of the jurisdiction to be exercised by the Munsif under clause (d) of sub-section (1) of section 24 also.

The only other provision in the Act that requires to be noted is section 129 which gives power to the Government to make rules. Sub-section (1) of this Section gives power to the Government to frame rules "generally to carry out the purposes of the Act", and that power is in addition to the rule making powers conferred on the Government by any other provisions contained in the Act. Sub-section (2) gives power to the Government, in particular and without prejudice to the general power conferred under sub-section (1), to make rules in respect of the various matters referred to therein. Clause (1) of sub-section (2) of section 129 is material for the present purpose; and in respect of all those matters the State Government can make rules. That clause is as follows:

as to all matters relating to electoral rolls or elections, not expressly provided for in this act, including deposits to be made by candidates standing for election and the conditions under which such deposits may be forfeited; and the conduct of inquiries and the decision of disputes relating to electoral rolls or elections;

It will be seen from the clause extracted above, that among the various matters referred to therein the Government has got the power to make rules regarding the conduct of inquiries and decision of disputes relating to electoral rolls or elections. As to what effect these provisions have got in considering the controversy tin the present case, will be referred to later.

In exercise of the powers conferred on them under sections 22, 24 and 129 of the Act, the State Government have framed the Kerala Panchayats (Decision of Election Disputes) Rules 1963 (hereinafter to be referred to as the rules) and they have been published on 31st January 1964. Pausing here for a minute, it may be stated that the heading of these rules more or less corresponds to the last part of clause (1) of sub-section (2) of section 129 of the Act, to which reference has been made earlier. In the rules several provisions have been made, and it is only necessary to refer to three rules, namely, rules 3, 4 and 13. Rule 3 provides that except as otherwise provided, no election or nomination held under the Act shall be called in question except by an election petition, presented in accordance with the provisions of the rules before a Munsiff. Rule 4, which is fairly important, is as follows:

Munsif to function as persona Designata:--A Munsif exercising jurisdiction under sections 22 and 24 of the Act and these rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a Munsif of the court over which he presides.

It will be seen that under rule 4, the Munsif, while exercising jurisdiction u/s 22 and 24, to which reference has been made earlier, as well as under the rules framed by the Government, is to be deemed to exercise that jurisdiction as persona designata, and not in his capacity as Munsif of the Court over which he presides. Rule 13, which deals with powers of Munsif, confers all the powers which are vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the various matters enumerated therein.

These are the material provisions that have to be considered for deciding the objection raised by the learned counsel for the respondent in this case, namely that the revision petition u/s 115, C. P. C. is not maintainable. It is brought to my notice by Mr. Abdul Khader, learned counsel for the revision petitioner that the inquiry was conducted under the rules then in force, framed in 1961. But counsel for all parties are agreed that the provisions contained in those rules are almost identical with the provisions contained in the 1963 rules referred to and extracted above, excepting that there may be a slight difference in the numbering of the particular rules; otherwise the provisions are similar. There was also a provision in the earlier rules similar to rule 4 of the rules extracted above.

According to Mr. Abdul Khader, this revision petition u/s 115 C. P. C. is perfectly competent, because jurisdiction has been given u/s 22 sub-section (6) to the Munsif having jurisdiction over the area in the Panchayat. Inasmuch as the Munsif forms a member of a particular class, so to say, it cannot be said that the jurisdiction that is given under the Act is not to the court of Munsif as such, really to a person, or individual functioning as persona designata. The learned counsel also urged that the provisions contained in rule 4 of the rules, wherein it is stated that the Munsif, exercising jurisdiction under Sections 22 and 24 of the Act and the rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a Munsif of the Court over which he presides, cannot control the specific provisions made in the body of the statute itself conferring jurisdiction on a court.

On the other hand, according to Mr. Sen, learned counsel for the respondent, jurisdiction is not granted to the court as such; but, on the other hand, the jurisdiction that is given is to the individual who may be presiding over the particular court for the time being. And the significant omission to refer to the Court of the Munsiff, in the various parts of the statute is, according to the learned counsel, a clear indication to the effect that the statute did not intend to confer jurisdiction in respect of these matters on the court of the Munsif as such. According to the learned counsel, the provisions contained in sub-section (5) of section 22 of the Act, as well as the manner in which the expression ''Munsif'' has been defined in sub-section (6) of section 22 of the Act, and the powers granted u/s 129 of the Act to frame the rules, in question and Rule 4 is clearly show that the Munsif, exercising jurisdiction u/s 22 and 24 of the Act, is functioning as persona designata, and not in his capacity as Munsif of the Court over which he presides. That is, according to the learned counsel for the respondent, there is no question of any of the provisions of the rules controlling the specific provisions of the statute. But according to the learned counsel, the statute has not conferred any jurisdiction on the court of the Munsif as such, and that idea is only reiterated in rule 4 of the rules.

Both the learned counsel have no doubt referred me to various decisions in support of their respective contentions. That is, according to the learned counsel for the petitioner, whenever a judicial officer is mentioned as having jurisdiction to decide certain matters, it necessarily implies that jurisdiction is conferred on him not as persona designata, but really as a court, of which that Judge is the Presiding Officer. On the other hand, the learned counsel for the respondent referred to some decisions to the effect that whenever a statute has not chosen to use the expression ''Court'' and jurisdiction has been given only to the particular officer concerned and rules have been framed to the effect that the officer functioning under the statute, is exercising jurisdiction as persona designata, courts have held that in the exercise of that jurisdiction it cannot be stated that the said officer is functioning as a court subordinate to this court, so as to enable this court to exercise jurisdiction u/s 115, C. P. C. I will advert to those decisions immediately. But it has to be borne in mind that unless the petitioner is able to satisfy this court that in this case the order that is under attack is one passed "by a court subordinate to this Court" there is no controversy that, Section 115, C. P. C. cannot stand attracted. No doubt, as already indicated by me, according to the learned counsel for the petitioner, the jurisdiction in this case is exercised by a court of the Munsif, which admittedly is "a court subordinate to this Court"; whereas according to the learned counsel for the respondent the jurisdiction is not exercised by the Court of a Munsif, as claimed by the petitioner, but really by the Munsif as persona designata, and therefore he cannot be considered to be a court subordinate to this court.

In K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, a Full Bench of the Madras High Court had to consider the question as to whether an order passed by a District Judge, exercising jurisdiction under the Madras Local Boards Act, 1920 in respect of an election matter, the High Court has got jurisdiction to consider the correctness or otherwise of that order, by exercise of its functions u/s 115 C. P. C. Before I advert to that decision, the proposition that "where, by statute, matters are referred to the determination of a Court of Record, with no further provision, the necessary implication is that the court will determine the matters as a court, and its jurisdiction is enlarged, but all the incidents of such jurisdiction including the right of appeal from its decision remain the same", is well established by the decision of the House of Lords in National Telegraph Co. v. Postmaster General (1913 A. C. 546). The particular observations referred to above are those of Lord Parker and occur at page 562 of the report. In fact, the learned counsel for the petitioner in this case placed considerable reliance on these observations and urged that inasmuch as jurisdiction has been conferred on the Munsif, having territorial jurisdiction over the area in the Panchayat, it necessarily means that jurisdiction has been given to court of the Munsif, in which case it necessarily follows that all other rights flowing from the same to the parties, by virtue of the decision rendered by a court are available. And that is why, according to the learned counsel, the revision petition is perfectly competent. In fact these observations of Lord Paker have also been quoted by the Full Bench of the Madras High Court in the decision referred to above.

As I have already mentioned, the question that arose before the Full Bench of the Madras High Court in Parthasaradhi Naidu v. Kotaswara Rao (A. I. R. 1924 Mad. 561) was regarding the nature of an order passed by the District Judge, acting under the powers conferred upon him by the rules framed under the Madras Local Boards Act 1920. Section 199 (2) (c) of the said Act gave power to the Local Government to frame rules in respect of the conduct of election to the Local Boards. Under rule 1 of the rules framed under the said Act, it is seen that provision was made to the effect that "No election of a member or of a President of a District, Taluk, or Union board shall be called in question except by an election petition presented in accordance with these rules, to the District or Subordinate Judge having jurisdiction". Therefore under this rule, it will be seen that an election petition has to be presented to the District Judge or Subordinate Judge having jurisdiction. No doubt the expression ''court'' of the District Judge or ''court of the Subordinate Judge'' did not occur in the rules. It will also be seen that under rule 12(2) of the said rules the reference is to "an election or other competent Court." Rule 4(3), providing for the conduct of inquiries gave power to the District or Subordinate Judge in certain cases "to direct any court subordinate to him to hold the inquiry". I am particularly referring to these rules, which came up for consideration before the Full Bench of the Madras High Court in the decision referred to above, because the scope of that decision, can be better understood only having due regard to the provisions contained in those rules.

Against the order passed by the District Judge under the rules, in respect of an election, a revision petition was filed before the High Court of Madras. A preliminary objection was taken before the High Court that the High Court had no power of revision u/s 115 C. P. C. over the decision of the District Judge or Subordinate Judge when acting under that rule. The learned Chief Justice poses the question that a decision on that aspect depends upon the question as to whether the District or Subordinate Judge, referred to in rule 1 acts as a court or acts 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 Judges. In considering this aspect, the learned Chief Justice after referring to the observations of Lord Parker, in the decision of the House of Lords in National Telephone Co., Ltd., v. Postmaster General (1913 A. C. 546), makes a very elaborate reference to the provisions of rules 1, 4 (3) and 12(2) of the rules framed by the Local Government, in exercise of the powers conferred on it by the Act. In adverting to those rules, the learned Chief Justice in particular observes, that great light is thrown upon the point in controversy by rules 12 (2) and 4 (3) of the rules. Rule 12 (2), as I have already indicated, referred to "an election or other competent Court". And in considering this rule the learned Chief Justice expresses the opinion that "it is quite clear that it is there referring to a Court of District Judge or Subordinate Judge." Then the learned Chief Justice refers to rule 4(3) of the rules for the conduct of inquiries, wherein power is given to the District or Subordinate Judge in certain cases "to direct any Court subordinate to him to hold the inquiry". In that connection the learned Chief Justice expresses the opinion that having due regard to these rules "it is 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. On this basis the learned Chief Justice ultimately holds that the power of revision u/s 115, C. P. C. lies, and therefore the revision petition was held to be maintainable. Ramesam J., another learned Judge of the Full Bench, has not elaborately considered this aspect when expressing his agreement with the views of the learned Chief Justice. The learned Judge expresses the view, that in the light of the rules framed under the Act, to which reference has been made by the learned Chief Justice, the District Judge must be considered to have acted as a court. But Waller J., the other learned Judge, constituting the Full Bench, specifically states that on the first point he agrees with the learned Chief Justice that the Judge ''referred to in rule 1 viz., the District Judge or Subordinate Judge, is not a persona designata and that rule 4 (3) is conclusive. Rule 4 (3) has already been referred to; and Waller J. referring to this rule, observes that "a Judge acting as persona designata has no court subordinate to him". Therefore, it will be seen that ultimately all the learned Judges of the Full Bench agreed that the revision petition was competent, inasmuch as the District Judge, in that case was exercising jurisdiction under the Act as a Court, and not as persona designata.

As I have already mentioned, Mr. Abdul Khader, learned counsel for the revision petitioner has placed considerable reliance on the Full Bench decision of the Madras High Court referred to above. In my opinion, that decision does not advance the case of the petitioner for this reason, namely the decision arrived at by the learned Judge that the District Judge in that case was acting as a Court, was essentially on a construction of the provisions of the rules to which I have already made reference earlier. Therefore, in my opinion, the Full Bench decision of the Madras High Court referred to above will not assist the learned counsel for the petitioner. In fact, as I will indicate later, this Full Bench decision of the Madras High Court has also been considered by another Full Bench of the same High Court and it has been distinguished on this ground.

Mr. Abdul Khader then drew my attention to the decision of my learned brother Joseph J. reported in Appu v. Executive Officer (1962 K. L. T. 393) wherein the learned Judge has held that an order passed by a District Judge u/s 49(2) of the Madras Co-operative Societies Act, 1932 (Act VI of 1932), is revisable u/s 115, C. P. C. on the ground that the District Judge is "a Court subordinate to the High Court". But even this decision of the learned Judge as I will presently show, will not assist the learned counsel for the petitioner, when we consider the specific provision that the learned Judge had to consider in that case. Section 49 of the Madras Act in question refers to surcharge; and under sub-section (1) of that Section power is given to the Registrar, to levy surcharge on any officer of the society in the circumstances mentioned therein. Sub-section (2) of Section 49 of the Act makes an order of the Registrar under sub-section (1) final, "unless it is set aside by a District Court, having jurisdiction over the area in which the head quarters of the society are situated........." The latter part of sub-section (2) of Section 49 deals with the jurisdiction of the City Civil Court, if the headquarters of the society are situated in the City of Madras. But both the District Court as well as the City Civil Court can consider the correctness or an order of the Registrar on application made by the party aggrieved, within three months of the date of receipt of the order by him. But the point to be noted is, that under sub-section (2) of section 49 of the Madras Co-operative Societies Act, the jurisdiction that is given to consider the correctness of an order of the Registrar is: (a) if the headquarters of the society is situated outside the City of Madras, to the District Court, having jurisdiction over the area, and (b) if the headquarters of the society is situated within the City of Madras, to the City Civil Court. Therefore under both the circumstances jurisdiction that is given is not to the District Judge or City Civil Judge, but to the District Court or City Civil Court, as the case may be. I am particularly referring to this aspect because in the judgment of Joseph J., if I may say so with respect, the particular provisions have not been extracted. In that decision it will be seen that as against an order passed by the District Judge, functioning u/s 49(2) of the Madras Act, in question, the parties had filed appeals and also revision petitions. On behalf of the respondents in that case the learned Government Pleader appears to have raised a preliminary objection to the effect that the appeals are incompetent. The learned Government Pleader also seems to have urged that even the revision petition is not maintainable as against orders passed by the District Judge u/s 49(2) of the Madras Act. The learned Judge considers the contention of the learned Government Pleader regarding the maintainability of the appeal and upholds that contention. But it is not necessary for me to advert to that aspect for the present purpose. But in considering the objection raised by the learned Government Pleader that even the revision u/s 115, C. P. C., does not lie, the learned Judge expresses the opinion that he is not inclined to accept that contention, and the learned Judge observes that the decision of the District Judge is a decision of a Court subordinate to the High Court and therefore the High Court has got jurisdiction, if circumstances justified it, u/s 115 of the Code of Civil Procedure. I have already indicated that the jurisdiction that is given to consider the correctness of the order of the Registrar u/s 49 (2) of the Madras Act in question is to the District Court or the City Civil Court as such. And in the case that my learned brother Joseph J., had to consider, it was the District Court that had passed the order u/s 4 (2), which came up to this Court in revision u/s 115 C. P. C. and the learned Judge under these circumstances if I may say so with respect, quite rightly held that the High Court had jurisdiction to consider, u/s 115, C.P.C., the correctness or otherwise of such an order of the District Court, because the District Court is admittedly a court subordinate to this Court. Therefore this decision of my learned brother, referred to above, will not also assist the learned counsel for the petitioner in this case.

Mr. Abdul Khader next relied on the decision of the Supreme Court reported in The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, , wherein their Lordships have construed the expression ''District Magistrate'' occurring in the U. P. (Temporary) Control of Rent and Eviction Act, III of 1947, as not being understood in the sense that he is functioning as persona designata. In that decision the Supreme Court had to construe the provisions of section 3 of the Act referred to above, wherein it was provided that "No suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds........" The expression ''District Magistrate'' was also defined in Section 2(d) of the said Act, which has been extracted by the Supreme Court in the judgment. According to the definition, "District Magistrate" will include an officer authorised by the District Magistrate to perform any of his functions under this Act". In that case the District Magistrate did not grant permission, nor did any officer authorised by the District Magistrate, as required u/s 2(d) of the Act, grant any permission to institute the suit. But on the other hand the permission was granted by the Additional District Magistrate and the contention that was taken before the Supreme Court was that the "District Magistrate" u/s 3 of the Act, taken along with the definition of the said expression contained in section 2 (d) of the said Act, must be considered to function as persona designata and not as on individual officers occupying that particular post. In that connection the learned Judges refer to the provisions contained in the Code of Criminal Procedure; and ultimately they are of the view that the sanction granted by the Additional District Magistrate was perfectly valid. The Supreme Court rejected the contention that the District Magistrate was functioning as persona designata. The Supreme Court also defines the expression "persona designata" as "a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character". In fact that definition itself is one taken from Osbern''s Concise Law Dictionary, Fourth Edition, p. 253. In that connection the Supreme Court adverts to the observations of Schwabe, C. J., in the Full Bench decision of the Madras High Court reported in K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, and quotes with approval the definition of the expression ''persona designata'' as "persons selected to act in their private capacity, and not in their capacity as Judges". After making these observations, the Supreme Court observes that the same considerations apply also to a well-known officer like the District Magistrate, named by virtue of his office, and whose powers the additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act in question. Therefore the Supreme Court ultimately comes to the conclusion that in that case, the District Magistrate is not functioning as persona designata and that reference to District Magistrate in Section 3, is a person who is pointed out or described not as an individual, but to a well known officer who could be ascertained as a member of a class, or as filling a particular character.

No doubt, prima facie the decision of the Supreme Court referred to above, may appear to support the contention of the learned counsel for the petitioner, in view of the provisions contained in section 22(6) of the Act, wherein the term ''Munsiff'' has been stated to mean "the Munsif having jurisdiction over the area in the Panchayat". But it will be seen that the Supreme Court had no occasion to consider any other provisions of the Statute or Rules explaining the particular character or nature of the jurisdiction that is exercised by the officer concerned, as we have in the case on hand; because, in my opinion, that will be a very essential distinction that has to be noted, between the case that the Supreme Court had to consider and the present case. I have already referred to the provisions contained in the Act, as well as the rules, and the particular provision in the rule making power and especially Rule 4 stating that ''Munsiff'' in this case, exercising powers under sections 22 and 24, functions not as a court, but as persona designata. If the Supreme Court had also had occasion to consider other provisions of the statute regarding the nature of the jurisdiction exercised by the authority and ultimately come to a conclusion that nevertheless by the mere fact that the officer is referred to as District Magistrate in Section 3 of the U. P. Act in question, he cannot be considered to be functioning not as persona designata, and the reference is to a person who could be ascertained as a member of a class or as filling a particular character, quite naturally. I will be bound by that decision, and I will have also to accept the contention of the learned counsel for the petitioner that the expression ''Munsiff having jurisdiction in the area of the Panchayat'' must refer to a person who could be ascertained as a member of a class or as filling a particular character. But, in my opinion, the decision of the Supreme Court will not assist the learned counsel for the petitioner, because provisions similar to the Act or the rules in the present case did not arise for consideration before the Supreme Court. No doubt the Supreme Court has approved of the observations of the learned Chief Justice of Madras in the Full Bench decision in Parthasaradhi Naidu v. Koteswara Rao (A. I. R. 1924 Mad. 561). I have also elaborately considered the scope of that Full Bench decision as well as the basis for the learned Judges coming to the conclusion, that the District Judge in that case, was acting as a court and not as persona designata; and that decision was with reference to the various rules to which I have already made reference and which have also been discussed by the learned Judges of the Full Bench of the Madras High Court.

The next decision referred to by the learned counsel for the petitioner is a Full Bench decision of the Allahabad High Court reported in Chatur Mohan and Others Vs. Ram Behari Dixit, . The question that arose before the learned Judges of the Full Bench in that case was as to whether a Munsiff, functioning u/s 7E of the U. P. (Temporary) Control of Rent and Eviction Act, III of 1947, acts as a civil court, and as such whether his orders are revisable u/s 115 C. P. C. So far as that question is concerned, the learned Chief Justice and Oak J. who represented the majority view of the Full Bench, after a consideration of the material provisions of the statute, ultimately held that the Munsif, in that case functioning u/s 7E of the Statute, functions as a court, and that the revision petition as against orders of the Munsiff is maintainable. The other learned Judge Pathak J., did not agree with the majority view, that the Munsiff u/s 7E of the U. P. Act, in question functions as a civil court and as such his orders are revisable u/s 115 C. P. C., as I will presently show, is rested on a consideration of the various other provisions of the statute. In particular, the learned Chief Justice is conscious of the fact that there is certainly a distinction between a court and the officer presiding over it; and that 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. Having this aspect in mind, the learned Chief Justice proceeds to consider that exactly was the intention of the legislature when conferring powers on the Munsif u/s 7E of the Statute. In that connection, the learned Chief Justice refers to the fact that in, Section 5 (4) and 7C(3) of the Act reference is made to "court of the Munsif", whereas in section 7B (1) and 7E the reference in the Act is to "the Munsiff". The learned Chief Justice expresses the opinion that the expressions "court of the Munsiff" and "Munsiff" have been indiscriminately used, but ultimately the intention of the Legislature was to confer jurisdiction on the Munsif as a court. This aspect is emphasised by the learned Chief Justice, by stating that the Legislature could not have intended to create three different authorities, namely (a) a District Magistrate Acting administratively, (b) a Munsiff acting as a "civil Court" under Sections 7C(3) and 3(4) and (c) a Munsiff acting as a "persona designata" under Sections 7B or 7E. Therefore the learned Chief Justice is of the view that the mere fact that the expression ''Munsiff'' alone is used in section 7E and on that basis to hold that the Munsif is functioning not as a court, but as persona designata, will be disregarding the other provisions contained in the same statute and will result in an anomalous situation. That is why the learned Chief Justice ultimately came to the conclusion that, even u/s 7B of the Act in question, though the expression used is only ''Munsiff'', he nevertheless acts only as a court, and not as persona designata. On this basis the learned Chief Justice came to the conclusion that the order of the Munsiff passed u/s 7E is amenable to revision by the High Court u/s 115, C. P. C. Oak J., agreed with the learned Chief Justice more or less for the same reasons.

Therefore once the basis of the decision of the majority view of the Full Bench decision of the Allahabad High Court in Chatur Mohan and Others Vs. Ram Behari Dixit, is understood properly in my opinion, it will be clearly seen that the said decision will not assist the learned counsel for the petitioner in this case. Because so far as I could see there is absolutely no reference either in any part of the Kerala Act or in the rules to the "Court" as such; and that is an aspect which loomed very large in the minds of the majority of the Judges of the Full Bench of the Allahabad High Court when they came to the conclusion that the Munsiff acting u/s 7C must be considered to function not as persona designata, but really as a court.

The learned counsel for the petitioner then relied on the decision of the Full Bench of the Patna High Court reported in Mt. Dirji Vs. Smt. Goalin, . The question that arose for consideration before the learned Judges in that case was whether the Commissioner appointed under the Workmen''s Compensation Act 1923, is a court u/s 19 of the said Act, and whether his orders are revisable u/s 115, C. P. C. Here again, it will be seen that the learned Judges have fairly elaborately considered the provisions of the statute, as well as the nature of the functions that the commissioner has been entrusted with, under the provisions of the statute. The learned Judges, after a consideration of the provisions of the statute, came to the conclusion that the Commissioner acts judicially and is performing, judicial functions. But that part of the decision alone will not assist the learned counsel for the petitioner, because in this case, also I have no hesitation in holding, that the Munsiff functioning under the Kerala Act in question, has certainly to act judicially. But that by itself, will not in my opinion make him a "court subordinate to this court". In which case alone, this Court will be exercising power u/s 115, C. P. C. On that aspect it is seen that the Full Bench of the Patna High Court, have ultimately held that while answering that the Commissioner appointed under the Workmen''s Compensation Act, is a court as he has to act judicially the question as to whether the Commissioner is a Court subordinate to the High Court, in the sense in which that expression is used in section 115 of the Code, was not argued before them, and that the learned Judge do not accordingly express any opinion on that question. The point that arise for consideration in the case on hand is whether the Munsif functioning under the provisions of the Act is a ''court subordinate to the High Court''; and such a question has not been dealt with and answered by the learned Judges of the Patna High Court in the Full Bench decision referred to above. Therefore, though it may be held that the authority in question, namely the Munsif, has a duty to act judicially and has also to discharge several other functions which ordinarily a court will have to discharge, it will not merely on that basis in my opinion, constitute such an authority a court subordinate to this court, so as to exercise jurisdiction u/s 115 of the Code.

The learned counsel for the petitioner no doubt referred me to a Division Bench decision of the Calcutta High Court reported in Bazler Rahman Khandakar Vs. Amiraddin and on his death, his Sons Apsaraddi and Others, . Therein, again, the learned Judges had to consider the question as to whether the District Judge, functioning u/s 40A of the Bengal Agricultural Debtors Act VII of 1963, is a court, and as to whether his orders are liable to be revised u/s 115, C. P. C. So far as that is concerned, the learned Judges no doubt elaborately go into the question as to the nature of the functions that the District Judge has to discharge, and ultimately the learned Judges came to the conclusion that inasmuch as the District Judge has to exercise judicial functions in contrast to administrative functions, he must be considered to function as a court. With great respect to the learned Judges I am not inclined to make a similar approach for the reason that merely because an authority has to act judicially and because of the nature of the exercise of those functions in that manner, he should be considered to be "a court subordinate to this court". As I mentioned already, that by itself is not the sole criterion for considering as to whether an authority, who is bound to act judicially will also be "a Court subordinate to this court". On the other hand, there will be several tribunals constituted under several statutes which have to act judicially; and if the principles laid down by the learned Judges of the Calcutta High Court, in the decision referred to above are to be extended to those tribunals, then all those tribunals can be considered to be "courts subordinate to this Court". With great respect, I am not inclined to adopt that line of reasoning, and it is not necessary for me to go into the various reasons given by the learned Judges of the Calcutta High Court for coming to the conclusion that the District Judge in that case was functioning as a court.

On the other hand, there is a line of cases where the High Courts have held that merely because jurisdiction is given in certain matters to a Judge, it does not necessarily mean that he functions also as a court; on the other hand, the decision is that he functions only as persona designata. Those are the line of cases that have been relied upon by Mr. M. C. Sen, learned counsel for the respondent. The earliest decision is a Full Bench decision of the Madras High Court reported in Lakshmanan Chettiar v. Kannappar (A. I. R. 1927 Mad. 93). There the question was as to whether an order passed by the Chief Judge of the Small Causes Court, holding that a nomination for election to the Madras City Municipal elections is invalid, and functioning under the provisions of the rules framed under the Madras City Municipal Act, is a court, so as to enable the High Court to exercise jurisdiction u/s 115 of the Code. It will be seen that in that case, rules had been framed under the Madras City Municipal Act regarding the conduct of elections and inquiry. In particular, it will be seen that rule 4 of the said rules, framed under the Act gave the party a right of revision to the Chief Judge of the Small Causes Court against orders passed by the Commissioner of the Corporation. In that case, the nomination of a particular candidate was held to be invalid both by the commissioner and on revision by the Chief Judge of the Small Causes court; and against the order of the Chief Judge a revision was filed before the High Court u/s 115, C. P. C. Objection was taken by the respondents therein, that the High Court has no jurisdiction to entertain the revision u/s 115 of the Code, on the ground that the Chief Judge of the Small Causes Court is not "a court" subject to the machinery of the Code of Civil Procedure, but was functioning as a persona designata. In that connection the learned Judges of the Madras High Court refer to the earlier Full Bench decision of the Madras High Court in Parthasaradhy Naidu v. Koteswara Rao (A. I. R. 1924 Mad. 561), and point out that there were not rules framed under the Madras City Municipal Act, the provisions of which the learned Judges then had to consider, similar to the rules framed under the Madras Local Boards Act, 1920 which the earlier Full Bench of the Madras High Court to consider. It will also be seen that there was no specific rule framed even under the Madras City Municipal Act stating that the Chief Judge of the Small Causes Court functioning under the Act in respect of elections conducted to the Municipal Corporation is functioning as persona designata. But nevertheless the learned Judges, ultimately came to the conclusion that the Chief Judge of the Small Causes Court cannot be considered to be acting as a court, but the functions that he was called upon to discharge under the rules was only as persona designata. In this connection the learned Judges no doubt refer to the provisions of the Statute itself, wherein reference has been made to "the Court of Small Causes" in certain Sections and "the Chief Judge" of that court in certain other Sections, and have ultimately come to the conclusion that when the Chief Judge is referred to in the Act, he was meant to act as "a persona designata", and not as a "Court." Ultimately the Full Bench came to the conclusion that the High Court has no jurisdiction to entertain the revision petition u/s 115, C. P. C. as against orders of the Chief Judge, on the ground that under the Act and the rules he is functioning only as a "persona designata" and not as a selected member of the Court, chosen to represent it.

In a later decision reported in Nagula v. Bhanoji Row (A. I. R. 1950 Mad. 123), which arose under the Madras District Municipalities Act, Madras Act V of 1920 an order of the Subordinate Judge of Vizagapattam in respect of an election held to the District Municipal Council, came up for consideration before the Justice Krishnaswami Nayudu, of the Madras High Court. u/s 303 of the said Act, power was given to the Government to frame rules regarding the conduct of elections; and rules were framed in 1959. It is seen that under rule 2 of the rules disputes regarding elections can be referred to the Subordinate Judge or the District Judge. But rule 3 categorically stated that the authority functioning in respect of such disputes acts as "a persona designata", and not as "a court". That rule is substantially similar to rule 4 of the Kerala Rules in question. No doubt the learned Judge, in the Madras decision, referred to above had to consider a similar provision contained in the proviso to rule 2 framed in 1940, and ultimately held that the order of the Subordinate Judge is not revisable by the High Court u/s 115 of the Code, inasmuch as the Subordinate Judge exercises jurisdiction only as a "persona designata" and not in his capacity as Judge of the Court over which he presides. After referring to the earlier Full Bench decision in Parthasarathi Naidu v. Koteswara Rao (A. I. R. 1924 Mad. 561), which was pressed before the learned Judge, the learned Judge categorically states that that decision was rendered in view of the particular provisions contained in the rules framed under the Madras Local Boards Act. and that a rule similar to the one before the learned Judge, wherein it has been categorically stated that the District Judge or Subordinate Judge functioning under the Act and the rules acts as a persona designata and not as Judge of the Court over which he presides, was not before the learned Judges of the Full Bench in the rules that they had to consider. Ultimately, distinguishing the Full Bench decision in K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, , the learned Judge came to the conclusion that inasmuch as the Election Commissioner, namely the Subordinate Judge in that case, must be considered to exercise jurisdiction as persona designata and not in his capacity as Judge of the Court over which he presides, Section 115 of the Code will not stand attracted and therefore the revision was not competent.

In my opinion, the reasoning adopted by the learned Judge in Nagula v. Bhanoji Row (A. I. R. 1950 Mad. 123) referred to above, applies more or less in full force to the case on hand. The learned Judge had to consider in that case the provisions contained in the proviso to rule 2 of the rules framed in 1940, which has again been reiterated in rule 3 framed by the Madras Government in 1959 under the Madras District Municipalities Act, V of 1920, which substantially is in accordance with the provisions contained in rule 4 of the Kerala Rules. There again, it will be seen that the Madras Act gave jurisdiction to the authority concerned to frame rules in respect of the conduct of elections and inquiry; and it is on that basis that the particular rule, that the learned Judge had to consider, was framed; and on the basis of those provisions of the learned Judge came to the conclusion that the Subordinate Judge, in that case was acting only as a "persona designata."

A similar question, namely as to whether the order passed by a Munsif, in respect of elections held under the Madras Village Panchayats Act, Act X of 1950, is revisable by the High Court u/s 115 of the Code, came up before Basheer Ahamed Sayeed J., of the Madras High Court, in the decision reported in Poonuram v. Rajappa (A. I. R. 1960 Mad. 353). There again, it will be seen that Section 19 of the said Madras Act provided for the authority to decide questions regarding disqualification of members, and provision was also made to the effect that the party concerned is to apply to "the prescribed authority whose decision shall be final." Section 114(1) of the Act in question conferred rule-making power on the Government, and in exercise of those powers the State Government framed the rules; and the question was as to whether the Munsiff, to whom provision was made for referring disputes regarding elections, functions as "a court" or as "persona designate. At page 364, paragraph 6 of the report, the learned Judge has extracted the rule framed by the Government. It will be seen therefrom that provision was made in the rule that all disputes relating to disqualification of members are to be referred to the District Munsif having territorial jurisdiction over the place in which the office of the Panchayat concerned is situated. That provision is more or less substantially in accordance with the provisions contained in Section 22 (6)of the Kerala Act. Objection was taken before the learned Judge regarding the maintainability of the revision petition u/s 115, C. P. C. After a fairly elaborate consideration of the various decision bearing on the point, including the previous decisions of the Madras High Court, referred to above, the learned Judge ultimately accepted the preliminary objection and held that the revision petition was not maintainable. At page 357, the learned Judge, after agreeing with the views expressed by the Full Bench in the decision in Lakshmanan Chettiar v. Kannappar (A. I. R. 1927 Mad. 93), and after distinguishing the earlier Full Bench decision in Parthasarathi Naidu v. Koteswara Rao (A. I. R. 1924 Mad. 561), observes as follows: "In that view, I do not think that this civil revision petition could be considered to be competent. The District Munsiff having been named and designated as a judicial authority to enquire into the petitions u/s 19 (1) of the Madras Village Panchayats Act is not a civil court, which could be said to be subordinate to the jurisdiction of the High Court so as to be brought within the purview of Section 115, C. P. C."

Mr. Sen, learned counsel for the respondent then referred me to a decision of the Bombay High Court reported in Pramod C. Bhat Vs. Kanwar Raj Nath, wherein the learned Judges have held that where there is ambiguity in the language used by the Legislature in the statute or where more than one construction is possible, then the rules, framed may help the court in coming to the right conclusion as to the construction to be placed upon a particular provision in the law. That is only an aid, so to say, laid down by the learned Judges for properly understanding the provisions of the statute, if the provisions of the statute are in any manner ambiguous. Reference was also made by Mr. Sen to the decision of a Single Judge of the Gujarat High Court reported in Jagmohandas v. Jamnadas (1965-6 GLR 49), wherein the learned Judge, after considering all the material provisions contained in the particular Act, came to the conclusion that the District Judge, functioning under that particular statute, was functioning as a court; in fact the expression used is "court" in the rules itself. That decision is more or similar to the Full Bench decision in Parthasaradhi Naidu v. Koteswara Rao (A. I. R. 1924 Mad. 561).

Now the question is as to whether the contention of the learned counsel for the petitioner that this revision petition u/s 115, C. P. C. as against the order passed by the Munsif functioning under the provisions of the Act, is maintainable, is to be accepted or not. In my opinion, it is not possible to accept the contention of the learned counsel, that the correctness or otherwise of the order under attack, can be considered by this Court, exercising jurisdiction u/s 115 of the Code. It will be seen that section 22 (5) of the Act clearly states that the exercise of jurisdiction by the Munsiff is subject to the provisions of the Act and the rules. That clearly shows that the authorities have been given power to frame rules in that regard. Further u/s 22(6) of the Act also it will be seen that the term ''Munsiff'' referred to therein is not the Munsif''s Court or Court of the Munsif, but really the Munsif as such. I have already indicated that if that clause stood by itself, there would be considerable force in the contention of the learned counsel for the petitioner based upon the observations of the Supreme Court in The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, , that the reference to Munsif is really to him as a member of a class of persons or filling a particular character. But the position, in my opinion, is not so simple as that. Further, u/s 129(2)(i) of the Act, as I have already pointed out, power is given to the Government, among various other matters, to frame rules regarding the conduct of inquiries and the decision of disputes relating to electoral rolls or elections. That means that there is specific power given to the Government to frame rules regarding the conduct of elections and disputes relating to elections. It is really in that context that rules which have been framed in 1963 have to be understood.

I have already indicated that the rules themselves relate to disputes relating to electoral rolls or elections. It is in those rules framed by the Government, that rule 4 occurs wherein it is specifically stated that a Munsif exercising jurisdiction u/s 22 and 24 of the Act and the rules shall be deemed to exercise such jurisdiction as a persona designata, and not in his capacity as a Munsif of the Court over which he presides. Therefore, in view of all these provisions, in my view, it is not possible to accept the contention of the learned counsel for the petitioner that Section 22(6) of the Act by itself must be read, without reference to any of the other provisions of the Act. In fact, even in most of the decisions relied on by the learned counsel for the petitioner, a decision one way or other has been arrived at by the learned Judges, not after considering only a particular provision, but after considering various other provisions of the statute, in order to come to the conclusion as to whether the authority mentioned in the statute functions as "a persona designata" or as a "court". In my opinion, section 129(2) of the Act clearly gives power to the Government to frame rules regarding "the conduct of inquiries and decision of disputes." If that is so, it cannot certainly be said that rule 4 of the rules is beyond the rule-making power of the Government. On the other hand, when there is provision contained in section 22 (6)of the Act, which does not clarify as to whether the Munsiff referred to therein is to function as a court or otherwise, that clarification has been made by the Government by virtue of rule 4 which has been framed in exercise of the powers conferred on them by section 129, particularly clause (i) of sub-section (2) thereof. The nature of the jurisdiction that has to be exercised by the Munsif referred to in Section 22 (6) of the Act is really one relating to "the conduct of inquiries" and the character in which he has to render a decision in respect of disputes relating to elections. The decision of the Full Bench of the Madras High Court in K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, , I have already pointed out will not assist the learned counsel for the petitioner, because the learned Judges of the Full Bench did not have before them a rule similar to rule 4 occurring in the Kerala Act with which this Court is now concerned. Similarly the Supreme Court, also in the decision referred to by the learned counsel for the petitioner had no occasion to consider any other provisions of the particular statute which had to be taken into account for considering the nature of the jurisdiction to be exercised by the authority referred to in the statute. It may be, as I have already mentioned, that the Munsif in this case, to whom disputes are referred under sections 22 and 24 of the Act, has to act judicially in the sense that he has to function in all respects by a court. But that does not mean that he functions as "a court subordinate to this Court" so as to enable this Court to exercise jurisdiction u/s 115 of the Code. On the other hand the Munsif, when he is functioning under the provisions of the Act, functions not "as a court subordinate to this Court", but really as a "persona designata". If that is so, it follows that the preliminary objection taken on behalf of the respondents, in this civil revision petition u/s 115, C. P. C. has to be sustained. On that short ground and without expressing any opinion regarding the correctness or otherwise of the order under attack, this revision petition will have to be dismissed. But I make it very clear that if the petitioner is otherwise entitled, to the rejection of this revision petition will not stand in the way of the petitioner, invoking the jurisdiction of this Court under Articles 226 or 227 of the Constitution as the case may be. The result is this Civil Revision Petition is rejected. But there will be no order as to costs.