P L D 1955 Dacca 25 (PLP)

AMIN AHMED, J.--‑On a Reference made by the Munsif, North Raozan, Chittagong, through the District Judge of Chittagong this Rule was issued suo motu by a Division Bench of this Court in the following form: "Issue notice to the Government Pleader and to the parties in the suit in which the judgment in question has been delivered." Only Mr. M. Asir, Government Pleader, has appeared and argued the matter before us. No one has appeared for any of the parties ; and we may also mention that as no notice was required to be served under the rule on the alleged contumer, he has also not appeared. We, however, have had the advantage of hearing the learned Government Pleader who has very candidly stated that he cannot support this Reference. The facts of the case may be briefly stated as follows: One Abhoy Charan Acharjee filed a suit, being Title Suit No. 98 of 1951, for a declaration that a particular kabala was fraudulent and null and void. This kabala was also the subject matter of an appeal under section 73 of the Indian Registration Act before the District Sub‑Registrar, Chitta gong, being Appeal No. 8 of 1951 (wrongly styled as Suit No. 8 of 1951) under section 73 of the Indian Registration Act, Forruk Ahmed Chowdhury v. Abhoy Charan Acharjee. On the 28th July, 1951, the plaintiff prayed before the Munsif that the proceedings before the District Sub‑Registrar should be stayed and on the same date the learned Munsif, Mr. M. A. Hashem, passed the following order: " Plaintiff files a petition praying for stay of further poceedings of Registration Appeal Case No. 8 of 1951 pending before the District Registrar's Court, Chittagong, till disposal of this suit. Heard pleaders for the plaintiff. Let the Registration Appeal No. 8/51 be stayed till the disposal of this suit under section 151 of C. P. C. Let an intimation be sent to D. S. R., Chittagong." The above order was communicated by Memo. No. 120/T, dated the 30th July, 1951; to the District Registrar, Chittagong. On the 27th August, 1951, the plaintiff in this suit prayed before the Munsif for calling for the kabala in the Registration Appeal No. 8 of 1951 for the purpose of hearing of the suit ; and this prayer was granted and among other things the order recorded is : "Issue summons accordingly." The kabala was requisitioned by Memo. No. 151/T, dated the 28th August, 1951, from the Office of the District Sub‑Registrar. But on the 5th September, 1951, the District Sub‑Registrar wrote to the Munsif as follows: "Memo. No. 3627/GSI. dated 5‑9‑

51. To‑The Munsif of North Raozan. REF :‑YourgNo. 151/T, dated 28‑8‑

51. SUB :‑Requistion for records in Suit No. 98: Other for 1951. SIR, I have the honour to state that in terms of Memo. No. 8811, dated 6‑8‑49 of the Inspector‑General of Registra tion, East Bengal, an incomplete document should not ordinarily be sent to a Court. If, however, the transmission of such a document is found to be unavoidably necessary, it should be sent through ' a special messenger under sealed cover which will have to be brought back by the same messenger after inspection by the Court. Accordingly the document in question may be forwarded to you through a messenger for your inspection on a future date if you are of opinion that the document is unavoidably required to be inspected by you. I have the honour to be, SIR, Your most obedient servant, Sd. ILLEGIBLE. Registrar, Chittagong. 5‑9‑51." In reply to the above letter, the learned Munsif by Memo. No. 170/T, dated the 1.8th September, 1951, wrote back to the District Sub‑Registrar asking him to comply with his order as per Memo. No. 151/T, dated the 28th August, 1951, and also pointing out to him the provisions of Order 13, rule 10, and Order 16 of the Code of Civil Procedure. In reply to this letter on the 25th September, 1951, the District Sub‑Registrar wrote to the learned Munsif enquiring whether the entire records of the Appeal No. 8 of 1951 were necessary, whether certified copies of the disputed documents and other papers requiring inspection had been filed in the Court of the Munsif, and also whether the document in question would be sent back after inspection on the same day or not. On the 3rd November, 1951, the District Sub- Registrar directed registration of the documents in question under section 75 of the Indian Registration Act. So on the 22nd November, 1951, the plaintiff filed a petition together with a certified copy of the order of the District Sub‑Regis trar, dated the 3rd November, 1951, before the Munsif in whose Court the suit was pending for taking steps against the said District Sub‑Registrar for not staying the proceedings in the matter of registration as per order of the learned Munsif, dated the 28th July, 1951. On this the present Reference has been made to this Court complaining that the District Sub‑Registrar has committed contempt of Court inasmuch as he neither obeyed the order of the Court of the Munsif asking him to stay all further proceedings in the matter of registration before him, nor did he comply with the order passed by the learned Munsif for the production of the Kabala. Although this rule has not been opposed, we have to discuss some points in extenso as they are of some impor tance and do not seem to have been clarified by many cases. It will be noticed that there cannot be any question that this is not a Reference under section 115 of the Code of Civil Procedure. We may mention that there is some mis apprehension that these References are made under section 115 of the Code of Civil Procedure to this Court in its revisional jurisdiction. Mr. Asir points out that according to sub section (4) of section 75 of the Registration Act the Registrar is not a Civil Court although in the matter of any enquiry under section 74 of the said Act he can summon and enforce the attendance of witnesses, and compel them to give evidence as if he were a Civil Court. In this con nection Mr. Asir has cited the case of Sree Rajah Bommad evara Naganna Nayudu Bahadur Zemindar Garu v. Thuraga Pattabhiramayya (I L R 51 Mad. 245‑A I R 1928 Mad. 475). In this case it was held that a Regis trar was not a "Court" within the meaning of section 115 A of the Code of Civil Procedure and, therefore, not being a subordinate Court under the High Court, the High Court could not interfere with his proceedings. The next question is, whether this is a Reference under subsection (1) of section 2 of the Contempt of Courts Act (XII of 1926) which gives the High Court jurisdiction to deal with cases of contempts of Courts subordinate to the High Court. It is conceded by Mr. Asir that there is no doubt that a subordinate Court like that of the Munsif in the present case can make a Reference to this Court if any Court subordinate to it commits an offence of contempt against it. Let us, therefore, examine whether the registering officer is a Court, and whether any contempt has been committed in this case. It will be noticed from the facts stated above that the learned Munsif passed an order under section 151 of the Code of Civil Procedure for staying the proceedings of registration pending before the District Sub‑Registrar, and that by subsequent order he also called upon him to produce the document in question under Order 13, Rule 10 and Order 16 of the Code of Civil Procedure. The first question is whether the District Sub‑Registrar or the registering officer is a Court at all and whether it is subordinate to the Court of the Munsif and to other superior Courts. Mr. Asir has rightly pointed out that it is not a Court and, therefore, the learned Munsif had no jurisdiction to stay the proceedings for registration of the document in question. It seems that this point was discussed in the cases of In re Ardeshir Kavasji ((1912) 14 Bom L R 970 : 17 1 C 717) and Emperor v. Udit Narayan Dube and others (I L R 35 All. 109 : 718 1 C 896). In the latter case the Sub‑Registrar refused to register a document as he believed that the document was a forgery. So he impounded the document and ordered an enquiry under section 476 of the Code of Criminal Procedure, and called upon the writer of the deed in question and the attesting witnesses to show cause why they should not be prosecuted for forgery. So the parties against whom the above order was made, moved the High Court in its revisional criminal jurisdiction. Among other things his Lordship Tudball, J., observed in that case (Emperor v. Uditnarain Dube and others) as follows: "The District Registrar may or may not have power to pass such an order quo District Registrar. He may or may not have power as District Registrar to make the inquiry quo District Registrar or even as a private person. But with that I have nothing to do. I fail to see that I have power to forbid a District Registrar to make an enquiry into the matter if he so pleases. He is.not a Court subordinate to this Court either on the civil, criminal or revenue side, and it is a matter in which at this stage I see no ground for interfering even if I had power to do so." It seems to us also that as the Registrar or a Sub‑Regis trar is not a Court, the offences committed before such Officers are specially made punishable under sections 81, 82 and 83 of the Registration Act. So, no sanction under section 195 for prosecution in respect of an offence commit ted before such an officer and falling within clauses (b) and (c) of subsection (1) of section 195 of the Code of Criminal Procedure can be given by him ; but in respect of offences within clause (a) of subsection (1) of section 195 of the Code of Criminal Procedure he can file his complaint only as a public servant. Subsections (1) and (2) of section 195 of the Code of Criminal Procedure runs thus: " (1) No Court shall take cognizance (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate ; (b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate ; or (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been commit ted by a party to any proceeding in any Court in respect of a document produced or given in evidence in such pro ceeding except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. (2) In clauses (b) and (c) of subsection (1) the term `Court' includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub‑Registrar under the Indian Registration Act, 1877." It will appear from the above provisions of subsection (2) of section 195 of the Cr. P. C. that it is expressly enacted in respect of offences under the sections mentioned in clauses (b) and (c) of subsection (1) of section 195 that the term 'Court' does not include a registering Officer, it has also been held in the case of Gopi Nath v. Kuldip Singh and others (I L R 11Cal. 566 (F B)) by the Calcutta High Court that the permis sion of the registering officer for the prosecution of a person for an offence under the Registration Act is not obligatory and that the provisions of section 83 of the Act are only enabling provisions. It seems that the learned Munsif was also conscious of his legal position and so he fell back on the provisions of section 151 of the Code of Civil Procedure and under that section ordered the stay of the proceedings pending before the registering Officer. But this he cannot do, for there are express provisions for stay of the proceed ings pending before a subordinate Court and a superior Court ought not to stay under section 151 of the Code of Civil Procedure the proceedings of a subordinate Court when it cannot do so under the express provisions of the Code. This also brings us to the question whether a registering Officer is a subordinate Court or not. If it is a subordinate Court under the Munsif, then there is no doubt that pending the hearing of the suit under certain circumstances the latter can stay proceedings of the former as it is done in case of any other subordinate Court, Civil or Criminal. In our opinion, as we have already indicated, the registering Officer is neither a Court nor a Court subordinate to the Munsif and, therefore, the Munsif had no jurisdiction to interfere with hiss proceedings as he did. Apart from the question whether the registering officer is a Court or not, it remains to be considered whether any contempt was committed because the District Sub‑Registrar did not send the records as required by the learned Munsif. It seems to us that the District Sub‑Registrar never refused to send the document in question ; for all that he did was to suggest that the document which was not yet registered should be sent through a special messenger and that it should be also returned through the same person and in doing so he was only acting under a circular issued by the Inspector -General of Registration, being Memo. No. 8811, dated the 6th August, 1949, which we have hereafter set out and to which he more than once drew the attention of the learned Munsif. But the learned Munsif, it seems, instead of trying to understand the difficult position in which the District Registrar was placed took it as an insult and was over‑sensitive about it all, for in his letter of Reference he writes : "that order of stay No. 3, dated 28‑7‑51 and order of calling for the document No. 5, dated 27‑8‑51 were in tentionally violated by the District Sub‑Registrar, Chittagong, and the judiciary functioning here at North Raozan, Chit tagong, has been insulted by the acts of violation of the District Sub‑Registrar, Chittagong, and this Court upholds this view of the contempt of Court." Mr. Asir took pains to get the original circular by the Inspector‑General of Registra tion for us and we find that the said circular runs to the following effect: "To the D. R., Tippera. No. 8811 D. 6‑8‑

49. SIR, W.r. to your letter No. 2368, D. 5‑7‑49, asking for my approval to the suggestion of tke D. S. R. that the documents called for by Courts may be copied in preference to other documents, I h/h to point out that the suggestion is in contravention of the statutory provision of law in section 52 (c) of the I. R. Act and as such, the suggestion cannot be approved. In this connection I beg to enclose herewith a copy of this Directorate letter No. 2209, d/16‑3‑49 to the address of the D. R., Faridpur, for your information and guidance. I have, etc., Sd. ILLEGIBLE, Sd. ILLEGIBLE, 16‑7‑49. 23‑7‑

49. Memo. No. 8811 (14), dated the 6th August, 1949. Copy together with copy of the enclosure forwarded to all D. Rs. (except D. Rs. of Tippera and Faridpur) for information and guidance. Sd. ILLEGIBLE. P. A. 2‑8‑49." "Memorandum No. 2209, dated 16‑3‑

49. To The D. R. Faridpur, SIR, Wr. to your letter No. 4566, D. 13‑10‑48, reg. production of incomplete documents in Courts in pursuance of requisition, I h/h to state that before complying with such requisition the procedure laid down in Rule 199 at page 51 of the Bengal Records Manual, 1928, should be meticulously followed. When, therefore, a Court calls for a document, the R. O. should send an objection to the Court concerned in the manner laid down in Note I, under aforesaid Rule 199, stating that the document cannot be sent to the Court as it has not been copied in the Register Book. If in spite of such an objection, the Court insists on the production of the document it may be sent to the Court concerned in a sealed cover through a member of the staff' with a covering letter requesting that the document may be returned forthwith after necessary inspection, in a sealed cover through the same bearer. The Court may also be told that the document in question wily be produced on another date, when called for if not done with on that date. Sd. ILLEGIBLE, 10‑3‑

49. I have, etc., Sd. ILLEGIBLE, 14‑3‑49." In this connection Mr. Asir has also drawn our attention to Rule 199 at page 51 of the Bengal Records Manual, 1928, which corresponds to Rule 197 of the Bengal Records Manual of 1943 (page 46) and also to Note 1 of Rule 197, to which reference has been made in the Memorandum No. 2209, dated the 16th March, 1949. Mr. Asir has also drawn our attention to Rules 132, 133 and 134 Chapter 5 of Civil Rules and Orders, Volume I and also to Form M. 10 for requisitioning the records at page 360 of the Civil Rules and Orders, Volume II. Rule 197 of the Bengal Records Manual, 1943, runs as follows: "In order to prevent revenue records being unnecessarily detained in Civil or Criminal Courts, the rules framed by the High Court (High Court's Circulars 1918, Civil, Vol. I, Rules 88 and 90, page 106), which provide for cases where records are called for by other Courts are prescribed for adoption mutatis mutandis in Collectorate record‑rooms. "(1) When a document or record in original is called for by a Civil Court at the instance of a private party it should be examined first whether certified copies of all the papers required to be proved have been filed in the Court, and when the paper called for is a public document, whether it has been stated that there are special reasons for an inspection of the original although a certified copy has been filed. The clerk taking the record to the Court should then be able to bring back with him the complete record without being detained. "As searching fee will have been paid by the party already when taking certified copy, no further searching fee shall be levied when a Civil Court calls for a record from any Collectorate or Commissioner's Office at the instance of a private party. "(2) If it appears that certified copies of all the papers required for production have not been filed in the requisition ing Court or that in the case of public documents, though such certified copies have been filed, no special reasons have been stated for the production of the original or when the special reasons stated do not appear to the Officer‑in‑Charge of the records to be sufficient, an objection shall be framed and forwarded, to the Court by letter for its decision before the records are sent." "Note 1.‑All Subordinate Courts should take special care to prevent the unnecessary production in Court of public documents as defined in section 74 of the Indian Evidence Act, 1872, or documents forming part of public documents or in public custody. When such documents are called for, the Court calling for them shall state the circumstances which render the production of the docu ments necessary. When, however, the Collector or other public Officer‑in‑Charge of the documents has been summoned under Order XVI, rules 1 and 6, of the C: P. C., 1908,, to produce in Court a certain document, it will be his duty to send it to the Court : but such officer may at the same time, in person or by letter addressed to the Court, object to the production of the' document, stating the grounds of such objection. The Court calling for the production of a document shall allow, on each occasion when the production of such document is necessary, sufficient time to enable the Collector or the public officer concerned, to consider whether there is any objection to the production of the document requisitioned, and, if so advised, to frame and prefer the objection and also to enable the Court to consider the same and decide, after hearing the parties, if necessary, whether it should compel the production of such document or not, and, in either case, to communicate its decision to , the public officer concerned before the date fixed for the production of the document," Rule 134 and Notes land 2 thereof, Chapter 5 of Civil Rules and Orders, Volume 1, are to the following effect: "When a record is called for, except by superior judicial authority or by a Civil Court acting under Order 13, rule 10, the Court or Officer calling for it shall state the circumstances which render its production necessary. The Judge may decline to forward it, if in his opinion no sufficient grounds are shown. It is improper and inconvenient that records of the Courts of Justice should be sent to other public officers or functionaries. If a reference to their contents is required, the proper procedure is ordinarily to obtain copies of the requisite papers. "Note 1.‑Civil judges of every grade should exercise a careful discretion in acting under the provisions of Order 13, Rule 10. "Note 2.‑For form of letter calling for recor4s under Order 13, rule 10, see Form No. (M) 10, Volume II. ' Form No. (M) 10 given in Civil Rules and Orders, Volume II, is as follows: "Form No. (M) 10 Requisition for records No. District In the Court of at Civil jurisdiction. PRESENT: Under Under the provisions of Order 13, rule 10 (1) C. C. P. (where Court sends for record of its own motion). In the circumstances set forth below it is hereby ordered that the be requested to forward the record of suit/case No. . . Of decided by on the day of 19 to this Court by (Signature and office of Requiring Officer)." It will appear from the above provisions, ag very rightly pointed out by Mr. Asir, that the District Sub‑Registrar had no option but to write to the Munsif in the terms he did, but ‑the learned Munsif instead of agreeing to have the records as indicated by the District Sub‑Registrar, started these contempt proceedings against him. From the above circular of the Inspector‑General of Registration and also the other rules relating to the production of documents and records set out above, it seems that for good reasons rules have been made for the custody, safety and production of the documents which are about to be registered and are not registered, and are lying in the. Office of the District Sub‑Registrar. Without becoming so sensitive about it, if the learned Munsif had only ascertained what the contents of the circular were, he would have known the exact position and he might have been well content with the document being produced and returned after inspection the same day and, if necessary, he could even have it over and over again until he had done with it as it is also provided by the circular. But this he refused to do. The learned Munsif has also referred to Order 13, rule 10 of the Code of Civil Procedure and has made a grievance that the provisions of the same have not been complied with. But Order 13, rule 10 of the Code of Civil Procedure only applies to the case of the records of a Court ; and as we have already held that the registering Officer is not a Court, those provisions have no application to the present case. As to the provisions of Order 16 of the Code of Civil Procedure also, Mr, Asir has very rightly pointed out that for the disobedience of summons to attend Court or to produce record by a party which is not a Court, the provisions of Order 16, rule 12 of the Code of Civil Procedure are there to enforce orders thereof and impose penalties, and that for not carrying out such orders there cannot be any contempt. In our view whether the stay order was not carried out or) whether the document in question was not produced, in either case it is not a case of contempt. We must, however, point out for the benefit of the learned Munsif that although the registering Officer is not a Court, he was not so helpless in the matter as he must have thought for he relied on section 151 of the Code of Civil Procedure and if he really wanted the proceedings to be stayed, he was quite competent to restrain the party concerned in the suit from proceeding with the registration of the document instead of trying to restrain the registering Officer: Ordinarily even at this stage we would have issued a rule on the alleged contumer although it was not done originally, but as prima facie there is no case of contempt, after hearing the learned Government Pleader we have decide to discharge this rule. The result, therefore, is that this. Reference is rejected and the rule is discharged. BADIUZZAMAN, J.‑.I agree. A. H. Reference rejected.