S.M.F Ali, C.J:— This is an application against an order passed by the Rent Controller dated 28-2-70 rejecting the application of the petitioner for giving him an opportunity to rebut the additional evidence produced by the non-applicant, landlord.

2. The petitioner had filed an application before the Rent Controller for fixation of fair rent of the premises let out to him by the non-applicant on the ground that the rent agreed to between the parties was excessive and therefore a fair rent under Section 8 of the Houses and Shops Rent Control Act (hereinafter to be referred to as the Act) should be fixed by the Controller. The Controller took evidence of both parties and wanted to adjourn the case for arguments when the petitioner filed an application before him that as the non-applicant landlord had introduced certain new matters in evidence which were not touched in the objections, he should be given a right to rebut that evidence. The learned Controller was of the view that as both parties had led evidence there was no reason to give any further opportunity to the petitioner. He accordingly rejected the application of the petitioner and fixed the case for arguments. Against this interlocutory order of the Rent Controller, a revision was preferred in this court which was heard by Bhat, J. who has referred the case to the Full Bench.

3. The main point involved in this case is as to whether or not, the interlocutory order passed by the Controller is revisable by this court either under Section 115 of the CPC or under Section 104 of the State Constitution. In other words it has to be determined whether the order passed by the Controller was passed as persona design at or as a civil court, subordinate to the High Court. The petitioner's contention before us is that the Chief Judicial Magistrate was appointed as Controller by the Government not as persona designata, but as a member of a civil court, or in other words as presiding officer of a civil court and therefore any order passed by him would be an order passed by any court subordinate to the High Court and therefore revisable. On the other hand the contention of the respondent was that the Controller was a purely executive authority and his appointment was as persona designata and therefore no revision could lie to this court. Before we examine the contentions raised before us, it may be necessary to mention the scheme of the Act. The present dispute arises from an interlocutory order passed by the Controller under Section 8 of the Act. The relevant portions of Section 8(1) run as follows:—

In any of the following cases the controller shall, on application by any landlord or tenant, fix the fair rent as set forth hereunder:—

(a) Where the provisions of Schedule A apply and there is no cause for the alteration of the rate of the fair rent as determined according to the Schedule for any of the reasons mentioned in the following clauses in accordance with the provisions of Schedule A.

(b) Where during the currency of a fair rent payable for any house or shop there has been an increase in the municipal taxes etc. by adding to it the amount of such increase as is payable by the landlord by agreement with the tenant over and above what is payable by the landlord himself under the local municipal law.

(c) Where during the currency of a fair rent payable for any house or shop the landlord has made some addition, alteration or improvements he the house or shop…….

Provided that when the house or shop is in occupation of a tenant at the time of the said addition, alteration, improvement etc. the additional rent shall not be recoverable from such tenant unless the improvement etc. has been made at the written request of the tenant.

(d) Where during the currency of fair rent the landlord has supplied any furniture for use of the tenant in the house or shop…………

(e) Excepting the case covered by Clause (f) following, were the provisions of Schedule A for determining the fair rent do not apply, either because the house or shop or the whole of the house or shop was not let during the 12 months prior to 1st Baisakh 1998, or for some other reasons, such as rent free or at a normal rent, or for some consideration other than money rent or by fixing the fair rent at a rate in accordance with Schedule A, taking the rent which would have been reasonably payable for he house or shop if let as ‘basic rent under the said schedule.’

(f) Where any house or shop has been constructed after the last day of Cheit 2005 by fixing the fair rent payable for one year at the rate not less than 4 per centum and not more than six per centum of the reasonable costs of construction added to the reasonable price of the land included in the house or shop as on the date of the commencement of such construction taking into account the prevailing rate of rent in the locality for similar accommodation with similar advantage and amenities and the comparative advantages or disadvantages of accommodation in the house or shop.

Provided that where the house or shop in respect of which fair rent is to be fixed from a part of the construction, the fair rent shall be fixed at a rate which is fairly proportionate to the total fair rent of the entire construction.

(g) Where no provisions of this Act for fixing fair rent apply to any premises, by determining the fair rent at a rate which is fair and reasonable.”

4. Clauses (a) to (g) to Section 8 and sub-section (2) of this section contain various factors which have to be determined by the Controller for fixing fair rent. A perusal of Section 8 and subclauses to this section clearly show that the Act confers judicial power on the Controller to determine fair rent after hearing both parties, and taking evidence. Thus it cannot be disputed that the power exercised by the Controller under Section 8 is a quasi judicial power, where the parties have the right to give evidence on the various factors mentioned in clauses (a) to (f) (supra). Section 18 lays down the mode of hearing of an application filed before the Rent Controller and provides that the hearing should be continued from day to day. Section 19 of the Act runs thus:—

“Subject to other provisions of the Act, before exercising any of the powers conferred on him by this Act, the Controller shall give notice by registered post of his intention to do so to the landlord and to the tenant, if any and shall cause a copy of such notice to be affixed in a conspicuous place at the office of the Controller, and shall duly consider any application received by him within the period specified in the notice from any person having any interest in the house or shop in respect of which such power is exercised.”

5. It would therefore appear from a perusal of Sections 18 and 19 that the inquiry before the Rent Controller is a quasi judicial inquiry where it is enjoined on the Controller to give notice to the parties and hear them. Under Section 17 of the Act the Revenue Minister is given the power to appoint a person by a notification to be the Controller. Section 21 lays down that against a final order of the Controller an appeal shall lie to the District Judge of the district in which the house or shop in respect of which the order is made is situate. Section 21(4) provides for a revision to the High Court against an order passed in appeal by the District Judge. Thus it would appear that the order of the Controller under the Act is not made final but is subject to an appeal before the District Judge and revision by the High Court. It is true that Section 21 gives the right of appeal only against a final order and not against an interlocutory order, and similarly the revisional powers of the High Court are confined to final orders passed by the Controller or the District Judge. In view of this special provision, the main point that falls for determination is whether a Controller appointed under Section 17 of the Act is appointed as persona designata or as a member of a Civil Court. This point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the subject between various High Courts in India, but much of the controversy has been set at rest by a decision of the Supreme Court in Central Talkies Ltd., Kanpur v. Dwarka Prasad, AIR 1961 SC 606 to which reference will be made later.

6. Before we enter into the merits of the argument raised before us, it will be necessary to determine the true import and legal significance of the words ‘persona designata’. In Osborn's Concise Law Dictionary (Second Edn.) at page 235 the words persona designata have been defined thus:—

“A person 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.”

7. This definition appears to have been accepted by their Lordships of the Supreme Court in AIR 1961 SC 606 (Supra).

8. In identical definition appears to have been given by Byrne in his Law Dictionary (1923 Edn.) at page 664 where the words ‘persona designata’ have been defined as ‘a person 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.’

9. A more pointed and simpler definition has been given in Mosley and Whiteley's Law Dictionary (fifth Edn.) at page 237 where these words are defined thus:—

“An individual as distinguished from a member of a class”.

10. A similar definition has been given by Teague in his pocket Law Lexicon (7th Edn.) at page 271.

11. From the aforesaid definitions it would appear that persona designata in ordinary parlance indicates the appointment or selection of a person in his individual capacity rather than as being a member of a particular class, post, job or profession. For instance A may be a District Judge. He may be referred to as merely A and described as A the District Judge of place X. Here the designation of A has been mentioned only to identify him but essentially he has been referred to in his individual capacity. Again A may not be referred to by his name but by his designation alone, for instance as the District Judge of X. In such a case it is manifest that A has not been appointed in his individual capacity but as a member of the class or post which he holds. In other words the main test to determine whether an appointment has been made as a persona designata or as a member of a class is to find out whether the person appointed has been appointed by his name alone, the description or designation being given only to identify him. Where only the profession or the occupation of the person or the post held by him is mentioned, the appointment is not as persona designata. We are fortified in our view by a large number of decisions cited at the Bar. To begin with, as far back as 1913 in National Telephone Co. Ltd. v. Post Master General, 1913 AC 546 Viscount Haldane observed as follows:—

“When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches.”

12. Similar observations were made by Lord Parker which are as follows:—

“Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same.”

13. This case was followed by a Full Bench of the Madras High Court in Parthasaradhi Naidu v. Koteswara Rao, AIR 1924 Mad 561 (FB). This decision was endorsed by the Supreme Court in AIR 1961 SC 606 (Supra). In the Supreme Court case their Lordships while defining the scope and ambit of the words persona designata observed as follows:—

“The argument that the District Magistrate was a persona designata cannot be accepted. Under the definition of ‘District Magistrate’ the special authorisation by the District Magistrate had the effect of creating officers exercising the powers of a District Magistrate under the Eviction Act. To that extent, those officers would, on authorization, be equated to the District Magistrate. A persona designata is “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”. (See Osborn's Concise Law Dictionary, 4th Edn page 253). In the words of Schwabe, C.J and in AIR 1924 Mad 561 (FB) personae designata are ‘person selected to act in their private capacity and not in their capacity as judges’.”

14. The decision of the Supreme Court therefore sets at rest all controversy on this point. The effect of the decision of the Supreme Court is that where a judge is appointed purely in his individual capacity by name, he acts as a persona designata but where he is appointed by his designation alone he acts as a court and not as a persona designata. In the instant case it would appear that the Notification dated 13-12-68 by which the Controller was appointed runs thus:

“In exercise of the powers conferred by Section 17 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (XXXIV of 1966) and in supersession of Notification on the subject published in the Government Gazette dated 9th Poh 2005 and the notification forming Annexure to Revenue Minister Order No. 32 of 2007/1951 dated 14-2-1951 published in the Government Gazette dated 18th Phagon 2007, I Girdhari Lal Dogra, Revenue Minister, hereby appoint the Chief Judicial Magistrate Srinagar and Jammu to be the Controller within the Municipal limits of Srinagar and Jammu respectively to exercise the powers and discharge the duties conferred and imposed upon the Controller by or under the said Act.”

15. A perusal of this Notification implies two things: (1) The Revenue Minister was aware as to who was the person holding charge of the post of the Chief Judicial Magistrate which is the post held by a Senior Sub-Judge. (2) If his intention was that the Controller should be appointed as a persona designata, then instead of merely describing the designation of the post held by the Chief Judicial Magistrate the Revenue Minister would have taken care to mention the name of the officer who was holding the post. Since this has not been done in this case, the intention of the Revenue Minister was to appoint the Chief Judicial Magistrate merely as the presiding officer of the court or as a member filling a particular post. In other words suppose Mr. Durani who is at present Chief Judicial Magistrate Jammu is transferred and is replaced by another man as Chief Judicial Magistrate, can it be said that his successor would cease to be the Controller? Having regard to the Notification the answer must be in the negative. By virtue of the Notification it is the Chief Judicial Magistrate who has been appointed as a Controller irrespective of the person who may be holding the post. In Nandlal v. Monmatha Nath, AIR 1962 Cal 597 under similar circumstances it was held that the Chief Judge of a small cause court appointed by the Government was not appointed as a persona designata but as the presiding officer of the Court. In this case their Lordships of the Calcutta High Court observed as follows:—

“In the present instance this deeming clause occurs not merely in relation to appellate Officer in isolation but in conjunction with the ‘Controller’. With reference to the Controller this was a very necessary provision and the craftsman while putting in this clause may have acted ‘ex abundanti cautela’ in including Appellate Officer also, which he might have well left out. Therefore because of sub-section (5) alone we are unable to accede to the contention of the learned Advocate General and we hold that the authority empowered to hear appeals by Section 29 of the Act is a Court and not merely a persona designata.”

16. We might mention here that the provisions of the State Act follow the pattern of the West Bengal Act and therefore the Calcutta case appears to be directly in point.

17. A similar view was taken by the Lahore High Court in Kishen Chand v. Nur Mohd., AIR 1949 Lah 94 where their Lordships observed as follows:—

“The duties that have been assigned to the ‘Controller’ under the Act concern the determination of disputes between one citizen and another as to the conditions upon which the property of one could be held by the other or the amount which one should pay to the other for its use or occupation. These disputes are undoubtedly of a civil nature involving as they do ‘the right to property’ within the meaning of the explanation to Section 9 of the CPC and are not of a political or executive description. It is also significant that experienced judicial officers were selected to act as ‘Controllers’ or ‘appellate authority’, presumably for their knowledge of civil law and procedure and their training in sifting facts and appreciating evidence. It is true that there was nothing to force the Provisional Government to restrict its field of choice to the Judicial cadre, but the fact that it was indicated the anxiety of the Government that the members of the public, though hampered to certain extent in the interest of public good in the freedom of their contracts, should find no legitimate cause for complaint that their valuable rights were to be determined by inexperienced or incompetent officers. The ‘Controller’ under the Act exercises all the powers of a Civil Court and must be regarded as such”.

18. It may be noted that in the instant case also the Chief Judicial Magistrate is essentially a judicial officer and he had to hear applications under Section 8 of the Act purely in a judicial manner after giving due notice to the parties and after taking their evidence. The Chief Judicial Magistrate being a senior officer was chosen by the Government because he could bring to bear his experience in deciding the issues arising before him. Lastly the Chief Judicial. Magistrate as the Senior Sub Judge is undoubtedly a court of record and where matters are referred to such a court of record, the presumption will be, as held by Lord Parker in 1913 AC 546 (Supra) that the appointment was made as a Court and not as a persona designata. The decisions reported in AIR 1955 J. and K. 29 : AIR 1962 Andh Pra 58 : AIR 1931 Bom 582 and AIR 1963 Madh Pra 218 take the view which we have taken in this case. We might, however, refer to a decision of a single judge of this court in Zaina Bibi v. Jamal Bhat, AIR 1966 J. and K. 121. In that case Bhat, J. held that the Rent Controller acted only as a persona designata and therefore no revision against his interlocutory order could lie to the High Court. It appears however, that the learned Judge relied only on a decision of the Calcutta High Court in AIR 1943 Cal 247 and his attention was not drawn to the Supreme Court case AIR 1961 SC 606 (Supra). Furthermore we find that even the Calcutta case on which the learned Judge relied is clearly distinguishable. In that case their Lordships held that it was only a legislative enactment that could confer powers of a Civil Court on any person. The order which was being construed by their Lordships was a purely executive order and not a legislative enactment and therefore their Lordships held that the appointment of a person by an executive order would be presumed to be appointment as persona designata and not as a Court.

19. In the instant case, however, we are dealing with the legislative enactment which empowers the Revenue Minister to choose any person as a Controller. Apart from this distinction, the law laid down in this decision does not appear to be correct, in view of the exposition of the term ‘persona designata’ by the Supreme Court in AIR 1961 SC 606 (Supra).

20. In Sholapur Municipality v. Tuljaram, AIR 1931 Bom 582 it was held that where the presiding officer of a Court is appointed, the appointment is as a Court and not as a persona designata. It is true that a contrary view appears to have been taken in the following cases: AIR 1950 Cal 96; AIR 1950 East Punj 181; AIR 1947 Cal 455; AIR 1952 Raj 59; AIR 1961 Andh Pra 498 and AIR 1927 Mad 93 (FB).

21. In AIR 1950 Cal 96 (Supra) no reasons are given by the learned judge, but it was held that the District Judge was not appointed as a court but only as a persona designata. This decision runs contrary to a later Division Bench decision of the same court reported in AIR 1962 Cal 597 and therefore must be deemed to be overruled by the later Division Bench case. The other decisions are in our opinion no longer good law in view of the observations of the Supreme Court in AIR 1961 SC 606 (Supra).

22. Thus the position that emerges from a discussion of the authorities is as follows:—

(1) The question whether an authority has been appointed as a persona designata or as a court depends on the nature of the duties which the authority performs and the manner he which its appointment is made.

(2) Where the appointment of an authority is made only by name in its individual capacity, the appointment is persona designata and not in the capacity of the post held by such authority.

(3) Where a presiding officer of a civil court is selected as an authority, the selection is not as a persona designata but as a member of the court because the authority so appointed to fill in a particular character, e.g a Chief Judicial Magistrate, District Judge, Civil Judge so on and so forth.

(4) Where the authority has been empowered to act judicially and possesses all the trappings of a court and has to abide by the rules of evidence, then its selection by designation must be presumed to be as a court and not a persona designata. Applying the aforesaid tests to the facts and circumstances of the present case, it would appeal that the appointment of the Chief Judicial Magistrate as Rent Controller by the Revenue Minister was not as persona designata but as a court and therefore any interlocutory order passed by him would be revisable by this court under Section 115 of the CPC. We are therefore clearly of the opinion that the revision is maintainable and the decision of Bhat, J. in AIR 1966 J. and K. 121 (Supra) does not lay down the correct law.

23. We now come to the merits of the revision. The petitioner has made a clear assertion before us that the respondents had introduced new and additional matter in their evidence which was not even mentioned in the objections. In these circumstances the petitioner was entitled to an opportunity to rebut such new evidence. The Controller acted with material irregularity in throwing out the application of the petitioner without applying his mind to the grounds raised therein. Either the Rent Controller should have excluded the evidence produced by the landlord which was beyond the scope of the objections filed before him or he should have given an opportunity to the petitioner to rebut that evidence.

24. For these reasons we allow this application set aside the order of the Controller dated 28-2-70 and direct him to reconsider the application of the petitioner and give him an opportunity of rebutting the evidence produced by the respondents.

25. In the circumstances there will be no order as to costs.

26. Jaswant Singh, J.:— I agree.

27. Anant Singh, J.:— I fully agree.

28. Application allowed.