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R. Achutha Shenoi Vs. Land Tribunal, Alwaye and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberO.P. No. 620 of 1978-F
Judge
Reported inAIR1980Ker163
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Kerala Land Reforms Act, 1964 - Sections 125; Kerala Land Reforms (Amendment) Act
AppellantR. Achutha Shenoi
RespondentLand Tribunal, Alwaye and ors.
Appellant Advocate R.D. Shenoi, Adv.
Respondent Advocate Govt. Pleader,; T.K. Kurien and; M.C. John, Advs.
DispositionPetition allowed
Cases ReferredAnantha Narayana Iyer v. Paran
Excerpt:
- - 6. in the present case the application for eviction as well as the counter-affidavit raising the plea of kudikidappu were both lodged with the rent control court prior to 2-11-1972. the court was competent to deal with the question at that time......for default of payment of rent, r. c. p. no. 123 of 1971 was instituted by the petitioner in the rent control court. the petitioner obtained an order for eviction on 18-12-1974. this order was challenged by the 3rd respondent in r. c. a. no. 13/1975. the appeal was dismissed by ext. p1 dated 26-7-1976. the revision filed by the 3rd respondent on 15-1-1977 as r.c.r.p. no. 17/77 was also rejected by order dated 6-2-1978. thus the original order of the rent control court allowing the application for eviction of the 3rd respondent for reason of arrears of rent was confirmed. i am told that c. r. p. no. 1624/79-b filed in the high court challenging the order of the revisional court was dismissed in limine. subsequent to the decision of the revisional court, the 3rd respondent, i am told,.....
Judgment:
ORDER

T. Kochu Thommen, J.

1. The petitioner is the landlord of a building in Mattancherry, a portion of which is in the possession of the 3rd respondent who is alleged to be a tenant. For default of payment of rent, R. C. P. No. 123 of 1971 was instituted by the petitioner in the Rent Control Court. The petitioner obtained an order for eviction on 18-12-1974. This order was challenged by the 3rd respondent in R. C. A. No. 13/1975. The appeal was dismissed by Ext. P1 dated 26-7-1976. The revision filed by the 3rd respondent on 15-1-1977 as R.C.R.P. No. 17/77 was also rejected by order dated 6-2-1978. Thus the original order of the Rent Control Court allowing the application for eviction of the 3rd respondent for reason of arrears of rent was confirmed. I am told that C. R. P. No. 1624/79-B filed in the High Court challenging the order of the revisional court was dismissed in limine. Subsequent to the decision of the revisional court, the 3rd respondent, I am told, paid up the entire arrears. Accordingly the order of eviction stands vacated.

2. The question which arises in the present petition is as regards the competence of the Land Tribunal to proceed with an application for purchase. The 3rd respondent had filed O. A. No. 1175/ 71 for purchase of kudikidappu. She contended that she was residing in the petitioner's building as a kudikidappu-kari. This application was dismissed for default by the Land Tribunal. However, the Appellate Authority (Land Reforms), to which she went in appeal, by its order dated 24-4-1974 remitted the matter to the Land Tribunal to reconsider the question afresh after giving the parties an opportunity to be heard. The matter was therefore taken back to the file of the Land Tribunal and renumbered as O. A. No. 76/77. The petitioner produced before the Land Tribunal the order of the Rent Control Court rejecting the 3rd respondent's contention that she was a Kudikidappukari and ordering her eviction as a tenant in default of payment of rent. The petitioner therefore contended that the Rent Control Court, having jurisdiction in the matter, had already pronounced upon the status of the 3rd respondent as a tenant, thereby rejecting her contention that she was a kudikidap-pukari. The petitioner pointed out that the principle of res judicata barred any consideration of the very same question by the Land Tribunal. Notwithstanding the objections, the Land Tribunal on 13-2-1978 posted the case for measurement of the area in question.

3. Petitioner's counsel Shri R. D. She-noi submits that on the date of the application for eviction before the Rent Control Court, and subsequently on the date of the counter-affidavit filed by the 3rd respondent raising the plea that she was a kudikidappukari, the Rent Control Court was competent to adjudicate the point in dispute. The jurisdiction of the Rent Control Court was taken away only by the amendment of Section 125 of the Kerala Land Reforms Act, 1963, by Act 17 of 1972 which came into effect on 2-11-1972. By this amendment sub-section (8) was added to Section 125 reading:

'In this section, 'civil court' shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965.'

Consequently, counsel says, that a decision rendered by the Rent Control Court in respect of a matter which was pending on 2-11-1972 was a competent decision which meant that the decision operated as res judicata in regard to any subsequent proceeding on the very same question as between the very same parties.

4. The 3rd respondent's counsel Shri M. C. John submits that at the time when the decision of the Rent Control Court was rendered, which was in 1974, the Court had no jurisdiction. That decision was therefore invalid and it was not capable of operating as res judicata.

5. In Eapen Chacko v. Provident Investment Company (P.) Ltd. (1977 Ker LT 1) : (AIR 1976 SC 2610) the Supreme Court, disagreeing with a Full Bench decision of this Court in Anantha Narayana Iyer v. Paran (1976 Ker LT 403) has held that Section 125 (1) and Section 125 (3) are both prospective. The Civil Court was divested of jurisdiction in regard to matters mentioned therein only in respect of proceedings initiated subsequent to 1-1-1970. As regards proceedings pending on 1-1-1970, which is the date on which Section 125 came into effect, there was no divestiture of jurisdiction of the civil court. The same reasoning must of necessity apply mutatis mutandis to sub-sec. (8) of Section 125 in respect of Rent Control Court which is brought within the definition of a civil court as from 2-11-1972. The sub-section reads; 'shall include'. This indicates that the sub-section operates only as from the date on which it was brought into force, viz., 2-11-1972. Until then, the Rent Control Court was not a 'civil court' and it did not therefore come under the ban of Section 125 (1) or Section 125 (3). The sub-sec. (8) being prospective the Rent Control Court retained its full competence in respect of proceedings pending on 2-11-1972 in relation to matters over which it had jurisdiction prior to that date.

6. In the present case the application for eviction as well as the counter-affidavit raising the plea of kudikidappu were both lodged with the Rent Control Court prior to 2-11-1972. The court was competent to deal with the question at that time. Just as a civil court was competent to render its decision even subsequent to 1-1-1970 in respect of proceedings which were pending on 1-1-1970, so is a Rent Control Court competent to render a decision subsequent to 2-11-1972 in respect of matters pending before it on that date. This is what has happened in the present case. Consequently the decision of the Rent Control Court, which was affirmed in appeal and revision as regards the status of the 3rd respondent as a tenant, is not open to any further challenge in any other proceeding between the same parties. Any such challenge is barred by the principle of res judicata. It is so declared. It is open to the petitioner to move the Land Tribunal to pass appropriate order in the light of what is stated above.

The O. P. is allowed. No costs.


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