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Vishnu Bhasmarithaya Vs. Kunnungal Kannan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1056 of 1960
Judge
Reported inAIR1962Ker239
ActsTransfer of Property Act, 1882 - Sections 108(1); Malabar Tenancy Act; Kerala Small Cause Courts Act, 1957 - Sections 22
AppellantVishnu Bhasmarithaya
RespondentKunnungal Kannan
Appellant Advocate C.K. Vishwanatha Iyer and; V.V. Narayanan, Advs.
Respondent Advocate A. Achuthan Nambiar and; T.P. Kelu Nambiar, Advs.
DispositionRevision dismissed
Excerpt:
- - the only twopoints raised having failed, the civil revisionpetition also fails and is dismissed with costs......that the same plea of abatement was raised in a proceeding before the bent court for fixation of fair rent, which petition was not pursued to conclusion and (2) that the small cause court had no jurisdiction to entertain a suit for apportionment of rent.regarding the first point, i am of opinion, that the tenant's remedy by way of abatement is independent of his statutory right to have the fair rent fixed. jf fair rent has already been fixed and if a portion of the property is silted up, the tenant is entitled to abatement even of the fair rent in proportion to the extent silted up to-the extent included in the lease. similarly, it here has been no fixation of fair rent and there is! silting, the tenant is entitled to abatement and he is entitled to claim such abatement from the.....
Judgment:
ORDER

T.C. Raghavan, J.

1. A suit on the small cause side of the court of the Munsiff-Magistrate of Hosdrug has given rise to the Civil Revision Petition, the plaintiff being the petitioner. The suit was for arrears of rent from 30th Kanni 1133 to 30th Kanni 1134, The defendant's main contention was that he was enticed to abatement of rent due to silting up of a portion of the property covered by the lease. The lower Court issued a commission to assess the extent of the silting and finally accepting the plea of the defendant it held that the correct rent payable was only 36 1/2 paras of paddy in two instalments of 18 1/4 paras each and not 75 paras as claimed by the plaintiff. A decree was also granted on that basis.

2. In revision the learned advocate of the petitioner raises two points: (1) that the same plea of abatement was raised in a proceeding before the Bent Court for fixation of fair rent, which petition was not pursued to conclusion and (2) that the small cause court had no jurisdiction to entertain a suit for apportionment of rent.

Regarding the first point, I am of opinion, that the tenant's remedy by way of abatement is independent of his statutory right to have the fair rent fixed. Jf fair rent has already been fixed and if a portion of the property is silted up, the tenant is entitled to abatement even of the fair rent in proportion to the extent silted up to-the extent included in the lease. Similarly, it here has been no fixation of fair rent and there is! silting, the tenant is entitled to abatement and he is entitled to claim such abatement from the contract rent. That right to claim abatement he has rot lost by not pursuing his remedy under the Malabar Tenancy Act before the Rent Court by way of an application for fixation of fair rent. Therefore the first point has no force.

3. Coming to the second point, it was the plaintiff who brought the suit on the small cause side of the lower court and the defendant raised the claim for abatement. If the plaintiff ques-tioned the jurisdiction of the small cause court to apportion rent, he should have moved for a transfer of the suit to the original side. Now that the lower court has considered the suit on merits and has given a decision, the High Court in revision is not bound to upset that decision, merely because the lower Court had no jurisdiction to try the suit.

In a recent decision in Padmanabhan v M. P. Lekshmi Pillai, C. R. P. NO. 1075 of 1959' I have considered two decisions of the Madras High Court and the Andhra Pradesh High Court respectively and following them have held that the High Court will not interfere in revision in a case, where the lower court wrongly tried an original suit on its small cause side or a small cause suit on its original side, if the decision of the trial court is otherwise right merely because the lower court lacked in jurisdiction for such trial. There-fore the second point also has no force.

4. Regarding the extent silted up and theproportion regarding abatement the learnedcounsel rightly concedes that he will not be justified in canvassing the correctness of the findingsof the lower court in revision. The only twopoints raised having failed, the Civil RevisionPetition also fails and is dismissed with costs.


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