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Ravi Brahmadathan Nambooripad Vs. Devassy - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 533 of 1957
Judge
Reported inAIR1959Ker36
ActsKerala Stay of Eviction Proceedings Act, 1957 - Sections 2(1) and 4; Kanom Tenancy Act, 1955 - Sections 3; Tenancy Law
AppellantRavi Brahmadathan Nambooripad
RespondentDevassy
Appellant Advocate P. Sreedhara Menon and; V.G. Bhaskaran Nair, Advs.
Respondent Advocate M.K. Narayana Menon and; C.S. Narayanan, Advs.
DispositionRevision dismissed
Excerpt:
- .....of the kerala stay of eviction proceedings ordinance, '1957, shall be in any court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the courts at such commencement for such eviction or recovery of arrears of such rent or damages shall be stayed. provided that nothing in this section shall preclude the recovery of the rent or any instalment of rent if according to custom, usage or agreement, such rent or instalment of rent is payable and accruing after the clay on which the kerala stay of eviction proceedings ordinance, 1957, came into force'. the kerala stay of eviction proceedings ordinance, 1957, came into force on 11-4-1957 (29-8-1132 m.e.)7. the definition of the expression 'holding' given in section 2 (1) of act i of 1957 is:'.....
Judgment:

M.S. Menon, J.

1. The only question that arises for consideration in this petition is whether O. S. No. 56 of 1957 of the Ernakulam Munsiff's Court has to be stayed under Section 4 of the Kerala Stay of Eviction Proceedings Act, 1957 (Act I of 1957) or not.

2. The suit seeks the recovery of certain arrears of michavarom alleged to be due under a kanom demise. Paragraph 1 of the plaint speaks of the demise as follows :

(Quotation in Malayalam omitted --Ed.) The arrears claimed cover a period of 12 years 1120 M.E. to 1131 M.E. (both years inclusive).

3. The lower court dealt with the contention that the suit should be stayed as follows :

'The suit is for arrears of michavarom. It is argued for the plaintiff that the claim is for michavarom and not for pattom and that therefore Act 1/57 is not applicable. Act I is applicable to kanapattom also. This suit is therefore stayed under Act 1/57'.

4. The revision petition states the contentions of the petitioner (Plaintiff) in the following terms :

'The lower court has illegally exercised its jurisdiction in finding that a suit for arrears of michavarom is hit by the provisions of Act 1/57. Act 1/57 does not warrant the stay of suits for arrears of michavarom and it is wrong to find that it will come under Kanapattom. The court below does not seem to have noted the distinction between Kanom and Kanapattom'.

5. Joseph, J., referred the petition to a Division Bench by an order dated 5-6-1958 :

'Place this before a D. B. as the question which arises in a number of suits in which lower courts are giving conflicting decisions has to be decided in this case';

and a Division Bench of this Court consisting of Koshi, C. J., and Vaidialingam, J., referred it to a Full Bench by an order dated 23-7-1958 :

'For reasons stated in the order of reference of the learned Single Judge we think it desirable to have an authoritative decision of a Full Bench of this Court on the question raised by this revision and accordingly refer the case for decision to a Full Bench.'

6. Section 4 of Act I of 1957 reads as follows ;

'Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a person from his holding or for the recovery of arrears of rent in respect of, or for damages for use and occupation of, the holding accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, '1957, shall be in any Court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the courts at such commencement for such eviction or recovery of arrears of such rent or damages shall be stayed.

Provided that nothing in this section shall preclude the recovery of the rent or any instalment of rent if according to custom, usage or agreement, such rent or instalment of rent is payable and accruing after the clay on which the Kerala Stay of Eviction Proceedings Ordinance, 1957, came into force'.

The Kerala Stay of Eviction Proceedings Ordinance, 1957, came into force on 11-4-1957 (29-8-1132 M.E.)

7. The definition of the expression 'holding' given in Section 2 (1) of Act I of 1957 is:

' 'holding' means any immovable property held under a single transaction by which a leasehold right in the property is created and possession of the property is transferred by one person in favour of another and includes Kanapattom'.

8. The first contention urged before us is that, 'Kanom' and 'Kanapattom' are not synonymous in the Cochin area of this State wherein the lands concerned are situated, and as a result, we should hold that a suit for the arrears of dues under a ka-nom demise does not come within the purview of Section 4 of Act I of 1957. There is no substance in this contention. The following passage from 'Land Tenures of Cochin' by Tiruvenkatachariar makes the position clear :

(The passage in Malayalam is omitted --Ed.)

9. The second contention urged before us is that 'michavarom' is not 'rent' and that it is only a suit for the recovery of arrears of rent -- not a suit for recovery of arrears of michavarom -- that has to be stayed under Section 4 of Act I of 1957. There is no substance in this contention either. 'Michavarom' is defined in 'Malabar Law and Custom' by Wigram and Moore (p. 298) as :

'The balance of pattom or rent payable to the Jenmi after the interest on the money lent or advanced by the tenant has been deducted'.

and in 'Malabar and Aliyasanthana Law' by Sundara Iyer (p. 453) as :

'The residue payable to jenmi after deducting interest from rent,'

10. The third and last contention is that the stay of proceedings directed by Section 4 applies only to those cases where the eviction of a tenant from his holding is possible under law, and that in view of Section 3 of the Kanom Tenancy Act, 1955, the inhibition embodied in Section 4 of Act I of 1957 will not apply to this case. We see no warrant for this submission. As we understand the section it covers three categories of cases :

(1) A suit or other proceedings for the eviction of a person from his holding;

(2) a suit or other proceedings for recovery from a person of arrears of rent in respect of, or for damages for use and occupation of, his holding; and

(3) a suit or other proceedings in which both the prayers indicated above -- eviction, and recovery of arrears of rent or damages -- are combined.

11. The argument advanced is apparently based on some misconception arising from the use of the definite article 'the' before the word 'holding' in

'........or for damages for use and occupation of the holding accrued due before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1957'.

12. In the light of what is stated above thisrevision petition has to be dismissed and we orderaccordingly, though in the circumstances of the casewithout any direction as to costs.


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