KOLAPPAN ACHARI v. HANEEFA — 1979 DIGILAW 145 (KER)

Judgment :- 1. The plaintiff in O.S. No. 197 of 1978 of the Munsiff's Court, Neyyattinkara, is the revision petitioner. The suit was for a declaration that he was not liable to be evicted in execution of the order passed by the Rent Control Court in B. R. C. O. P. No. 18 of 1974 as it was unenforceable against him in view of the order of the Land Tribunal, Athiyannur in O. A. No. 891 of 1972 declaring him as a kudikidappukaran. The suit arose under the following circumstances: The petitioner filed O. A. No. 891 of 1972 for purchase of kudikidappu right under S.80-B of the Kerala Land Reforms Act, hereinafter referred to as the Act. That application was dismissed by the Land Tribunal on 28-2-1973. The petitioner filed an appeal as A. A. No. 1022 of 1973 before the Appellate Authority. It was then that the rent control petition was filed by the landlord for eviction. The petitioner raised a plea that he was a kudikidappukaran and hence was not liable to be evicted. This question was referred under S.125 (3) of the Act to the same Land Tribunal who had earlier decided O. A. No. 891 of 1972. The Land Tribunal entered a finding against the petitioner which finding was accepted by the Rent Control Court and eviction was ordered on, 24-2-1976. The Appellate Authority constituted under the Act took up the appeal for hearing and as per its order dated 5-8-1976 set aside the order of the Land Tribunal in O.A. No. 891 of 1972 and remanded the case back to the Land Tribunal for fresh disposal. The appeal filed against the order of the Rent Control Court as B.R.C.A. No. 78 of 1976 was dismissed on 28-8-1976. A revision was filed by the petitioner as B.R.C. Revision No. 157 of 1976. The revisional Court passed an order as follows on 12-1-1977: "It is however pleaded for the revision petitioner that his kudikidappu claim is still pending before the authorities constituted under the Land Reforms Act. All that earn be provided therefore is that if within one month from to-day, he is able to produce any such orders before the Rent Controller upholding his kudikidappu claims, the order for eviction would stand vacated." On 29-3-1977 the Land Tribunal allowed the petition for purchase of kudikidappu. All that earn be provided therefore is that if within one month from to-day, he is able to produce any such orders before the Rent Controller upholding his kudikidappu claims, the order for eviction would stand vacated." On 29-3-1977 the Land Tribunal allowed the petition for purchase of kudikidappu. The respondent took out execution of the rent control order since the kudikidappu order could not be obtained within the time laid down by the revision Court. The petitioner resisted execution. He filed E.A. No. 290 of 1977 contending that he could not be evicted and produced the order of the Land Tribunal. The executing Court held on 6-6-1977 that the order was not executable in the face of the order of the Land Tribunal declaring the petitioner as a kudikidappukaran. A revision was filed to the District Court by the respondent as B.R.C. Revision No. 96 of 1977. The District Court reversed the order of the Executing Court and allowed execution to proceed by its order dated 30-11-1977. 2. Having been worsted thus, in the proceedings mentioned above, the present suit was filed by the petitioner with the prayers mentioned above. He filed I. A. No. 4424 of 1978 for an injunction to restrain the respondent from executing the rent control order and from evicting him. The said application was dismissed by the trial Court. An appeal was filed to the District Court, which met with the same result. Hence this civil revision petition. 3. The petitioner's counsel submitted that the civil Court had no jurisdiction to decide or settle any question which was within the exclusive jurisdiction of the Tribunal constituted under the Act. The findings of the Executing Court, according to him, should have been upheld by the appellate Court. Hence this civil revision petition. 3. The petitioner's counsel submitted that the civil Court had no jurisdiction to decide or settle any question which was within the exclusive jurisdiction of the Tribunal constituted under the Act. The findings of the Executing Court, according to him, should have been upheld by the appellate Court. Pointed reference was made to S.75 (1) and S.127 of the Act, which read as follows: 75(1) No kudikidappukaran shall be liable to be evicted from his kudikidappu except on the following grounds, namely: (i) that he has alienated his right of kudikidappu to a person other than (a) a member of his family; or (b) a person who has no other homestead or any land in possession, either as owner or as tenant, on which he could erect a homestead and whose annual income does not exceed two thousand rupees; (ii) that he has rented or leased out his entire kudikidappu to another person for a period of not less than two years; (iii) that he has ceased to reside in the kudikidappu continuously for a period of two years; or (iv) that be has another kudikidappu or has obtained ownership and possession of land which is fit for erecting a homestead within a distance of five kilometres from his kudikidappu." "127. The provisions of this Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act." These two sections do put fetters on the powers of the civil courts following the general law of the land. For that reason alone, these sections should be strictly construed. The provisions of the Act cannot be permitted to override the general law regarding finality of proceedings and principle of res judicata enacted in public interest. 4. Normally, the provisions of the Act should override the general law in matters coming within the ambit of the said Act. However, here we are concerned with a set of circumstances which have rendered impossible the application of such provisions. The order of the revisional Court on the execution side has become final thus disabling the petitioner from putting forward his objection based on S.75 (1) and S.127 of the Act. S.127 does not exclude an order passed between the parties which has become final. The order of the revisional Court on the execution side has become final thus disabling the petitioner from putting forward his objection based on S.75 (1) and S.127 of the Act. S.127 does not exclude an order passed between the parties which has become final. If the petitioner's contention is to be accepted, the principle of law which recognises the finality of proceedings will have to be given the go-by. The submission is that orders by the Land Tribunal on questions within its exclusive jurisdiction, though later in point of time should prevail over orders passed by the civil Court. In other words, orders or decrees passed earlier can be and have to be reopened to. bring them in conformity with the order of the Land Tribunal. There is a growing tendency to ignore the judgments of the ordinary Courts of the land. This has to be discouraged. Orders galore, come into existence or are brought into existence by means, fair or foul, to destroy the effect of earlier decisions of the civil Courts. Ouster of jurisdiction of the civil Courts should be strictly viewed and can be liberally construed only in furtherance of welfare legislation but within the confines of accepted norms. 5. In reinforcement of the contention that the order of Land Tribunal should prevail, another submission was made that the order of the Land Tribunal should be considered as a subsequent event rendering the earlier order of the Rent Control Court unenforceable. This contention also cannot be accepted. The executability of the orders of the Rent Control Court is to be decided in a manner laid down by law. If a final decision is arrived at on the execution' side, it cannot thereafter be attacked unless it be for reasons of fraud or similar vitiating circumstances. S.14 of the Rent Control Act, by a deeming provision, has made the order of the Rent Control Court a decree for all purposes. For execution of that order therefore all the provisions of the Civil Procedure Code are applicable. S.47 of the Code of Civil Procedure concludes rights of parties on the execution side and makes it impossible for a party thereafter to raise in a subsequent suit contentions which have been raised and substantially decided by the parties on the execution side. For execution of that order therefore all the provisions of the Civil Procedure Code are applicable. S.47 of the Code of Civil Procedure concludes rights of parties on the execution side and makes it impossible for a party thereafter to raise in a subsequent suit contentions which have been raised and substantially decided by the parties on the execution side. A combined "operation of S.47 and S.11 of the Code of Civil Procedure makes the orders on the execution side final and it cannot thereafter be re-opened on the plea of other parallel proceedings under other Acts. The petitioner's contention that the order is unenforceable for the reason that the Land Tribunal has subsequently declared him to be a kudikidappukaran cannot be accepted. 6. The petitioner had a remedy to request the District Court when it passed the order dated 12-1-1977 giving him one month's time. I see force in the submission that the direction given by the District Court in the said order was not a proper one. The condition imposed by the District Court that the order of eviction shall be superseded if the Land Tribunal renders its order within one month of 1211977 is a condition which the petitioner cannot fulfil or perform. That Court should have, if possible, directed the Land Tribunal to pass orders within a limited time or permitted the petitioner to avoid the order of eviction when the Land Tribunal passes its order. In this case, the order by the District Court has not advanced anybody's interest. 7. A submission is made before me that this condition, since it is impossible for the petitioner to perform has to be ignored and the effective order should be deemed to be to keep alive the order of the Land Tribunal, the rent control order yielding place to it. This submission cannot be accepted. The petitioner could have either challenged the order passed by the District Court in revision before this Court or moved the District Court itself for extension of time till the Land Tribunal passed its order. Not having done so, it is not open to the petitioner now to say that he is not concluded by the said order. He, for all purposes, is concluded by the order dated 12-1-1977 in revision. The District Court held that the rent control court order was executable. Not having done so, it is not open to the petitioner now to say that he is not concluded by the said order. He, for all purposes, is concluded by the order dated 12-1-1977 in revision. The District Court held that the rent control court order was executable. Thus, the final order so far as he is concerned is the order in revision. Under these circumstances, the petitioner cannot succeed in praying for an injunction restraining the respondent from executing the decree lawfully obtained by him. 8. Before parting with this case, I would like to make the following observations about the time consuming procedure now extant in the Rent Control Act with the four tier litigation available to a party. The rent control petition is presented before the Rent Control Court, an appeal lies to the Subordinate judge under S.18, a revision lies to the District Court under S.20 and a further revision lies to this Court under S.115 CPC. Under S.24 of the Rent Control Act, the Rent Control Court has to dispose of a petition as far as practicable within four months from the date of appearance of the parties thereto. From experience I have found that a rent control petition with the appeal and revisions takes at least two or three years for its final culmination. Thereafter execution proceedings start. Execution is taken in the Munsiff's Court. A revision lies to the District Court under the proviso to S.14; followed by a further revision to this Court. We hear a good deal now about law's delays and about delayed justice. In this context, it will be useful for those in charge of legislation to consider whether the present procedure could not be made easier. From an ordinary decree an appeal lies to the District Judge. Some of the appeals filed before the District Judge are made over to the Subordinate Judge's Court. Thereafter, a second appeal lies to this Court, whose jurisdiction has now been considerably narrowed down by the new S.100 CPC. The question for consideration is whether it will not be useful for all concerned to abolish one of the revisions in a rent control proceedings. Thereafter, a second appeal lies to this Court, whose jurisdiction has now been considerably narrowed down by the new S.100 CPC. The question for consideration is whether it will not be useful for all concerned to abolish one of the revisions in a rent control proceedings. If the orders of the Rent Control Court are to be deemed to be decrees for the purpose of execution, I fail to see why the same rule should not apply for orders also for the purpose of appeal. One of the revisions can easily be abolished. The appellate powers can be given to the District Court, who can hear the appeals himself or make over some of the appeals to the Subordinate Judge's Court in which case the revisional power of the District Court under S.20 can be taken away and the said power can be given to this Court under the same section instead of the revision under S.115 CPC. as it is now This would obviate a second revision and the delay consequent upon that. I dismiss the civil revision petition, but direct the parties to bear their costs. The Court below will expedite the disposal of the suit. A copy of this order under the signature of the Registrar and seal of the High Court will be communicated to the Chief Secretary to the Government, Trivandrum. Dismissed.