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1972 DIGILAW 104 (KER)

KOCHOUSEPH PAUL v. CHATHAN CHAKKI

1972-06-02

K.BASKARAN

body1972
Judgment :- 1. This revision is under S.103 of the Kerala Land Reforms Act challenging the validity of judgment of the appellate authority (Land Reforms), Trichur dated 25-8-1971 in A.A.No. 61 of 1971. The appeal before the appellate authority arose from an order passed by the Land Tribunal, Mala on 9-2-1971 in connection with a petition under S.80B of Act 1 of 1964 for the purchase of kadikidappu right. 2. The facts leading to this revision briefly are as follows; The petitioner in O. S. No. 576 of 1970 filed an application for the purchase of kudikidappu right. This petition was under S.80B of Act 1 of 1964- The respondent in the O.A. who is the revision petitioner herein contended inter alia that the petitioner had no locus standi to file the petition in as much as it was the petitioner's husband who had executed the 'cooli charthu' for the property. The Land Tribunal while accepting this contention that the petitioner was not entitled to apply for the purchase of the kudikidappu right passed an order the operative portion of which reads as follows: "In the result, I hereby order that Sri. Vallon Chathan, the husband of the applicant is to be impleaded in this case and the case heard further for passing a final order." The point to be decided as mentioned by the Land Tribunal is "whether the applicant is the Kudikidappnkari and the application is maintainable or not?" It is submitted by the learned counsel appearing for the revision petitioner that there was pleading by the parties, that documents were produced, that the Revenue Inspector had inspected the property, that the parties had adduced evidence and that the order passed by the Land Tribunal virtually decides the rights of the parties. It is contended that the Land Tribunal had decided by the order that the petitioner is not, but her husband is, the tenant, and he was ordered to be impleaded. According to the learned counsel, the impleading was ordered without a petition for the purpose and without notice to the opposite party. 3. Aggrieved by this order of the Land Tribunal the revision petitioner took up the matter in appeal in the said A.A. No. 61 of 1971. The appellate authority dismissed the appeal holding that the appeal is not maintainable. 3. Aggrieved by this order of the Land Tribunal the revision petitioner took up the matter in appeal in the said A.A. No. 61 of 1971. The appellate authority dismissed the appeal holding that the appeal is not maintainable. In doing so, the appellate authority took the view that it is only from an order under S.80B that an appeal lies, not from an order for impleading supplemental parties in proceedings under S, 80B of Act 1 of 1964. It is the correctness of this decision by the appellate authority that is being canvassed in this revision. 4. Learned counsel appearing for the parties have advanced elaborate arguments on the question of law relating to the maintainability of the appeal. S.102 of the Land Reforms Act reads as follows: "102. Appeal to appellate authority. (1) The Government or any person aggrieved by any order of the Land Tribunal under sub-s (2) of S.12, sub-s (3) of S.13A, S.22, S.23. sub-s. (2) of S.26 (where the amount of arrears of rent claimed exceeds five hundred rupees) S.31, S.47, sub-s. (3) or sub-s. (4) of S.48, sub-s. (3) of S.49. sub-s. (6) of S 52, S.57 sub-s. (5) of S.66, S.72F, S.73, S.80B, sub-s. (4) of S.90. S.106 or S.106A may appeal against such order within such time as may be prescribed to the appellate authority. (2) The appellate authority may admit an appeal presented after the expiration of the period under sub-section (1) if it is satisfied that the appellant had sufficient cause for not presenting it within that period. (3) In deciding appeals under sub-section (1), the appellate authority shall exercise all the powers which a court has and follow the same procedure which a court follows in deciding appeals against the decree of an original court under the Code of Civil Procedure, 19D8; (4) Where there has been any modification in appeal from any decision or order of the Land Tribunal, such decision or order shall be modified accordingly." By virtue of S.102 (1) of the Act, any person aggrieved by an order of the Land Tribunal under S.80B may appeal against such order to the appellate authority. The question, therefore, to be considered is whether this is an order under S.80B of the Act. S.80B lays down the procedure for the purchase of kudikidappu by kudikidappukaran. The question, therefore, to be considered is whether this is an order under S.80B of the Act. S.80B lays down the procedure for the purchase of kudikidappu by kudikidappukaran. Sub-section (3) of S.80B lays down that the Land Tribunal after due enquiry as prescribed shall pass such orders on the application as it thinks fit. Sub-section (4) of the section lays down the matters to be specified in an order under sub-section (3) of S.80B, like extent of the land, purchase price, amount due to the parties, the value of encumbrance etc. 5. The learned counsel appearing for the revision petitioner contends before me that an appeal lies from any order under S.80B, and that under S.80B there could be orders of various nature, not merely dismissal or allowing of the application. In that view, according to him, the order passed by the Land Tribunal is an order under S.80B and that is appealable under S.102 of the Act. The learned counsel also has drawn my attention to the difference in the wording of S.102 and 103 of the Act. It is argued that the scope for appeal under S.102 is much wider than the scope for revision under S.103. In particular, it has been pointed out that the word "final" appearing in S.103 is absent in S.102 and "any order" under S.80B is made appealable. According to the learned counsel for the revision petitioner the order appealable need not necessarily be a final order. It would be sufficient if the rights of the parties are determined by the impugned order. In support of this contention learned counsel appearing for the revision petitioner has cited the decision of the Supreme Court in Central Bank of India v. Gokal Chand (AIR. 1967 SC. 799). The decision of the Supreme Court referred to above was rendered in an appeal which raised the question of construction of S.38 (1) of the Delhi Rent Control Act, 1958. In an eviction proceedings, the appellant before the Supreme Court had filed all application before the Rent Controller for the issue of a commission to prepare a plan of the premises in question. The Rent Controller had rejected the application. Against this order of the Rent Controller an appeal was filed before the Rent Control Tribunal. In an eviction proceedings, the appellant before the Supreme Court had filed all application before the Rent Controller for the issue of a commission to prepare a plan of the premises in question. The Rent Controller had rejected the application. Against this order of the Rent Controller an appeal was filed before the Rent Control Tribunal. The Tribunal held that no appeal lay from the aforesaid order of the Rent Controller under S.38 (1) of the Delhi Rent Control Act, and therefore dismissed the appeal. The High Court also had agreed with the decision of the Tribunal. It was this decision of the High Court confirming the view of the Rent Controller and the appellate authority that was challenged in the Supreme Court. S.38 (1) of the Delhi Rent Control Act reads as follows: "An appeal shall lie from every order of the Controller made under this Act...." Referring to S.38 (1), the Supreme Court held as follows: "The object of S.38 (1) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of S.38 (1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which a re merely procedural and do not affect the rights or liabilities of the parties, In a pending proceeding, the Controller may pass many interlocutory orders under S.36 and 37. such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any. in such an order as a ground of objection in his appeal from the final order in the main proceeding. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any. in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S.37(2) is an order passed under the Act and is subject to appeal under S.38(1) provided it affects some light or liability of any party. Thus, an order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal." What has been laid down by the Supreme Court is that in spite of the words "every order of the Controller made under this Act" used in S.38(1) of the Delhi Rent Control Act, it cannot be construed that interlocutory orders are included within the scope of S 38(1). Reliance is placed by the counsel appearing for the revision petitioner on the observation in the Supreme Court judgment towards the end of Para.3 which reads as "Even an interlocutory order passed under S.37(2) is an order passed under the Act and is subject to appeal under S.38(1) provided it affects some right or liability of any party." It is submitted by the learned counsel appearing for the revision petitioner that in the instant case also the rights of the parties are affected by the order of the Land Tribunal in as much as it has been held that the petitioner had no locus standi to file an application and that the 'petitioner's husband is the tenant. According to him, at any rate, it is a matter seriously affecting the petitioner before the Land Tribunal and she could have appealed against that order affecting her rights, and if that be so, the revision petitioner also could appeal before the appellate authority. I do not agree with this contention. For one thing, the decision of the Supreme Court was rendered with reference to the provisions contained in S.38(1) of the Delhi Rent Control Act which provided that "an appeal shall lie from every order of the Controller made under this Act". I do not agree with this contention. For one thing, the decision of the Supreme Court was rendered with reference to the provisions contained in S.38(1) of the Delhi Rent Control Act which provided that "an appeal shall lie from every order of the Controller made under this Act". The provisions contained in Act 1 of 1964 are not similar. Moreover, the nature of the order which, according to the Supreme Court, is appealable, should be one affecting the rights of the parties like refusal to set aside an ex parte order. There is no such case here The revision petitioner, if aggrieved by the order that has already been passed by the Land Tribunal, can take up that issue when he files an appeal against the final order. Merely because the petitioner's husband has been ordered to be impleaded, the revision petitioner's right has not been affected. It is still open to the revision petitioner to contend before the Land Tribunal that the person impleaded also has no right to get the kudikidappu assigned in bis favour. I have no doubt in my mind that the Land Tribunal will give an opportunity to the revision petitioner to file his objections and adduce evidence in support of his case. No doubt, the Land Tribunal could have avoided all these complications by dismissing the petition when once it has found that the petitioner before him had no locus standi to file the application. In fact, R.81 of the Kerala Land Reforms (Tenancy) Rules, 1970 gives the guide-line in this behalf to the Tribunal. No doubt, the Land Tribunal could have avoided all these complications by dismissing the petition when once it has found that the petitioner before him had no locus standi to file the application. In fact, R.81 of the Kerala Land Reforms (Tenancy) Rules, 1970 gives the guide-line in this behalf to the Tribunal. R.81 reads as follows: "Status of applicant to be decided as a preliminary issue Where there is dispute as to whether the applicant is or is not a kudikidappukaran, the Land Tribunal shall decide such dispute as a preliminary issue and record a finding on such issue; and where" such finding is that he is not a kudikidappukaran, the Land Tribunal shall forthwith dismiss bis application." Therefore, all what the Land Tribunal should have done was to dismiss the application forthwith instead of ordering the impleading of the petitioner's husband who is stated to have given evidence before the Land Tribunal stating that the petitioner herself is the kudikidappukars Counsel appearing for the respondent has pointed out that the powers of the Land Tribunal under R.92 of the Kerala Land Reforms (Tenancy) Rules, 1970 are very wide and that for the purpose of implementing the provisions of the Act and the Rules the Land Tribunal shall have a power to pass such interlocutory orders as may appear to the Tribunal to be just and necessary to meet the ends of justice. According to him, even-in the absence of an application for impleading, the Land Tribunal can pass an order for impleading if, in his opinion, the ends of justice need such an impleadment. Learned counsel for the respondent has, therefore, submitted that irrespective of the wording used in the impugned order of the Land Tribunal, it is really an interlocutory order passed in exercise of the powers under R.92 of the Kerala Land Reforms (Tenancy) Rules, 1970 and that by no stretch of imagination could it be held that it is a final order under S.80B of the Act. The impugned order itself mentions that after the impleading of the case has to be beard further for passing a final order. 6. The impugned order itself mentions that after the impleading of the case has to be beard further for passing a final order. 6. Whether after having found that the applicant before the Land Tribunal is not a tenant of the kudikidappu the Land Tribunal, instead of dismissing the petition forthwith in accordance with R.81, should have taken upon itself the responsibility of impleading the applicant's husband even without a petition, either by the applicant or by her husband, purporting to be in exercise of his powers conferred under R.92 of the Rules, is to be urged in an appeal by the revision petitioner before the appellate authority, if he chooses to do so when the final order is passed. I, however, hold that the impugned order passed by the Land Tribunal is an interlocutory order, not a final order under S.80B of the Act, and that no appeal lies from such an order to the appellate authority. The civil revision petition fails and is, therefore, dismissed. No order as to costs.