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1959 DIGILAW 163 (KER)

Krishnan Nair v. Velayudhan

1959-06-29

M.S.MENON, S.VELU PILLAI

body1959
Judgment :- 1. The question for decision in these cases, relates to the interpretation of the term "any Rent Court" and "the Rent Court", occurring in S.7, Sub-Section 2 of the Malabar Tenancy Amendment Act, Act XXII of 1956, or shortly, the amendment Act, that is, whether they mean a "Rent Court" as defined in S.3 (26), and as constituted for a specified area by notification pursuant to S.15 (1), of the Malabar Tenancy Act 1929, Act XIV of 1930, as amended by Acts XXXIII of 1951, and VII of 1954, which may hereafter be referred to, as the principal Act, or whether they refer to the Subordinate Judge having jurisdiction over the area, in a case where he has decided an appeal against the fixation of fair rent by the Rent Court. Under the principal Act, fair rent for an year for a wet land, is deemed to be one-half of the "net paddy produce" of the land for that year, which in its turn, means the "normal produce", that is, the produce which would be raised under normal seasonal conditions, less the expenses of cultivation and of harvesting. In the case of a double-crop wet land, the "normal produce" would relate to the produce for both the crops, so determined. The amendment Act brought about a change in the concept of "normal produce" for a double-crop wet land, by introducing the following explanation to S.4 of the principal Act: - "In ascertaining the normal produce, the yield of the second crop shall be deemed to be half of that of the principal crop which shall be deemed to be the first crop" The effect of this, was to provide a rule of thumb, as it were, for the ascertainment of the "normal produce" for the second crop, by fixing it in all cases, regardless of realities, as equivalent to one-half of that of the first crop. The rule was also given retrospective operation, by further providing, by S.7 (2) of the amendment Act, that any fixation of fair rent which might have been made already and have become concluded, may be reopened, on an application made by the tenant, within three months of the commencement of that Act. The rule was also given retrospective operation, by further providing, by S.7 (2) of the amendment Act, that any fixation of fair rent which might have been made already and have become concluded, may be reopened, on an application made by the tenant, within three months of the commencement of that Act. S.7 (2) is in these terms: "Where before the commencement of this Act any Rent Court has fixed fair rent, the Rent Court shall on application by the tenant within three months of such commencement, amend the order fixing fair rent by giving effect to the provisions of the principal Act as amended by this Act, and the principal Act as amended by this Act shall also apply to petitions, appeals and other proceedings pending at such commencement." 2. In the three cases to which this order relates, the Rent Courts, as constituted under the principal Act, had fixed the fair rents for the concerned wet lands, and the Subordinate Judges had also decided the appeals directed against such fixation. Subsequent to the passing of the amendment Act, and within the period of three months specified in S.7 (2) thereof, the tenants in these cases, made applications to the concerned Subordinate Judges, for amending the orders fixing the fair rents, by applying the rule aforesaid. In one case, Sri. P. Unnikrishna Kurup, the Subordinate Judge at Ottapalam, by order dated the 11th December, 1956, entertained the application and ordered amendment, and the landlord has preferred O. P. 450 of 1958 under Art.227 of the Constitution, for quashing the order. In the second case, Kumari P. Janaki Amma, the Subordinate Judge at Ottapalam dismissed the application, by order dated the 5th February, 1958, on the ground, that it lay before the Rent Court, and that she has no power to order the amendment, and C. R. P. 384 of 1958 filed by the tenant is directed against it. In the third case, a similar order was passed by Sri. A. Gopalakrishnan, the principal Subordinate Judge at Palghat, on the 2nd December, 1958, and O. P. 227 of 1959 preferred by the tenant is for quashing it. 3. The scheme of the principal Act and of the "Malabar Tenancy (Determination of Fair Rent) Rules, 1954" framed thereunder and published on the 26th March, 1954, has to be examined. A. Gopalakrishnan, the principal Subordinate Judge at Palghat, on the 2nd December, 1958, and O. P. 227 of 1959 preferred by the tenant is for quashing it. 3. The scheme of the principal Act and of the "Malabar Tenancy (Determination of Fair Rent) Rules, 1954" framed thereunder and published on the 26th March, 1954, has to be examined. S.3 (26) of the principal Act, defines a Rent Court in relation to an area as the Rent Court constituted as such and to mean, where it has not been so constituted, the Revenue Divisional Officer or the Tahsildar, having jurisdiction over the area. S.15 (1) empowers the State Government to constitute, by notification, a Rent Court in relation to an area and S.16 enjoins on the Rent Court so constituted, to determine the fair rent in case of dispute, on application being made to it by the landlord or by the tenant; S.15 (2) refers to the powers to be exercised, and delineates the procedure to be followed by the Rent Court, in the hearing of such applications. A right of appeal against the fixation of fair rent, by the Rent Court is conferred by S.17, which is in these terms: "Any person aggrieved by any order passed by the Rent Court under S.16, may appeal against the order within such time, as may be prescribed, to the Subordinate Judge or the Principal Subordinate judge, as the case may be, of the Subordinate Judge's Court having jurisdiction over the area in which the holding is situate. He shall hear the appeal as a persona designata and his decision thereon shall be final." Section 20 of the principal Act provides for a revision in the manner specified, by the Rent Court, of the fair rent as determined, on the application of the land lord or of the tenant. R.6 and 10 of the aforesaid Rules prescribe the particulars, which an order by the Rent Court, and which an application made to it for fixing fair rent respectively, should contain; R.12 specifies, who are entitled or may be permitted, to attend any enquiry, proceeding, or hearing by the Rent Court. R.9 ordains, that "in every case in which the order passed by the Rent Court is revised on appeal, a copy of the order shall be sent to the Rent Court". 4. R.9 ordains, that "in every case in which the order passed by the Rent Court is revised on appeal, a copy of the order shall be sent to the Rent Court". 4. It is quite clear from the above, that a distinction is maintained in the principal Act and the Rules, between a Rent Court as defined in S.3 (26), and as constituted by S.15 (1) of the principal Act which fixes the fair rent, and a Subordinate Judge who sits in appeal over such fixation; the distinction is more pronounced in S.17 of that Act, where the term "Subordinate Judge" is used in contradistinction, not only with "Rent Court", but also with the Subordinate Judge's Court. It is undoubted, that under S.20 of the principal Act the power of revision of fair rent is conferred, not on the Subordinate Judge by whom an appeal against the original fixation of fair rent might have been decided, but on the Rent Court, understood as above. We see nothing "repugnant in the subject or context" to induce us to interpret the terms "any Rent Court", and "the Rent Court" in S.7 (2) of the amendment Act, differently from the other provisions in which they occur. 5. It was contended, that there would be such repugnancy in a case where the Subordinate Judge, by deciding an appeal under S.17 of the principal Act may be deemed to have himself fixed the fair rent, and filled thereby the character of the "Rent Court", within the meaning of S.7 (2) of the amendment Act. We cannot agree that this involves any repugnancy, with the scheme of the principal Act or with the definitions in it as discussed above or has any overriding effect on them. A decree passed by a court of first instance, may no doubt be deemed to be merged in the decree passed on appeal; but this is so, only for certain purposes of the Civil Procedure Code. "The function of an appellate Court is to determine what decree the court below ought to have made", as held by the Privy Council in Kristo Kinkur Roy v. Rajah Burroda Caunt Roy, (1872) 14 M.L.A. 465. If so, the decision is in law that of the Rent Court, though it was rendered or was set right in appeal. 6. "The function of an appellate Court is to determine what decree the court below ought to have made", as held by the Privy Council in Kristo Kinkur Roy v. Rajah Burroda Caunt Roy, (1872) 14 M.L.A. 465. If so, the decision is in law that of the Rent Court, though it was rendered or was set right in appeal. 6. There is nothing which is objectionable in principle, or which offends the sense of propriety, in a subordinate authority being empowered to make an amendment in the order as passed in appeal, when it involves no judicial process, no application of any principle, much less the exercise of a correctional jurisdiction over the superior authority, but only calls for a fresh computation according to a prescribed mathematical formula. The legislature might well have intended, that this might be left to the Rent Court, instead of taking up the time of the Subordinate Judge. As observed, even the power to revise the fair rent which is a far larger power, has been left by S.20 of the principal Act, to the Bent Court. These considerations, we think, are not out of place in rejecting the argument of repugnancy. 7. The contention based on S.49 of the principal Act, which makes the provisions of the Civil Procedure Code, 1908, especially those in the Chapters specified, applicable to proceedings under the principal Act, and on R.8 of the aforesaid Rules which makes the "procedure prescribed as regards appeals" in the same Code, applicable to proceedings relating to appeals under S.17, does not merit serious consideration, as according to us, these general provisions must give way to the special provision in S.7 (2) of the amendment Act. We cannot also find our way to accept the argument advanced by the learned counsel for the petitioner in O. P. 227 of 1959, that the order of the Subordinate Judge may be revised or modified on the new ground that has become available to the tenant by the addition by the amendment Act, of the explanation to S.4 of the principal Act, for the order was correct when it was rendered, and could be revised or modified only in accordance with, and subject to the conditions prescribed by S.7 (2) aforesaid. 8. 8. The applications made before the Subordinate Judges in the three cases now before us cannot, as prayed for, be transferred to the concerned Rent Courts, there being no legal ground to do so. We are not called upon to decide in these cases, whether the periods of the pendency of the applications for amendment before the Subordinate Judges, and of the pendency of these cases in this court can be excluded in computing the period of three months specified by S.7 (2) of the amendment Act, and therefore express no opinion on that point. The result is, that O. P. 450 of 1958 is allowed, and C. R. P. 384 of 1958 and O.P. 227 of 1959 are dismissed, in all cases, without costs.