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1981 DIGILAW 346 (KER)

JOSEPH v. THOMMEN JOSEPH

1981-12-16

K.BASKARAN

body1981
Judgment :- 1. In this writ petition has arisen.a question of law as to whether the Land Tribunal constituted under S.99 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969, for short the Act, has jurisdiction to stay the proceedings before it, pending decision of a suit instituted in a civil court in which the issues substantially and directly arising for decision are the same as those arising in the proceedings before the Land Tribunal. Sri. M. Krishnan Nair, the counsel for the petitioner, submitted that the Land Tribunal has only the limited power enumerated in S 101 of the Act and R.92 of the Kerala Land Reforms (Tenancy) Rules, 1970, for short the Rules; and the stay of proceedings contemplated under S.10 of the Code of Civil Procedure is applicable only to suits in civil courts, not to other proceedings. 2. The 1st respondent's father K. I. Thommen (since deceased) had filed a suit O.S. No. 115 of 1969 on the file of the Munsiff of Kanjirappally for injunction, which was subsequently amended to be one for recovery of arrears of rent on the strength of a registered rent deed In that suit the petitioner who was the sole defendant had raised the contention that he was a kudikidappukaran. He had also contended that the Munsiff had no jurisdiction to try the suit because of the bar under S.125(3) of the Act. An application, I.A. No. 175 of 1970 dated 15-1-1970. was filed by the petitioner for deciding, as a preliminary issue, whether the Munsiff had the jurisdiction to try the suit On 21-1-1970 the court disposed of that application ruling that it had jurisdiction to adjudicate the matter. The court, however, passed an order staying the proceedings as required under S 8 of the Kerala Prevention of Eviction Act, Act 12 of 1966 as amended by S 84 of the Act. The order I.A. No 175 of 1970 dated 21-1-1970 was challenged in CRP. No. 589 of 1970 by the predecessor of the 1st respondent. This Court holding that there was no finding by the Munsiff as to the existence of a prima facie case for invoking S.8 of Act 12 of 1966, allowed the revision, though without interfering with the decision of the Munsiff in regard to the question of jurisdiction. No. 589 of 1970 by the predecessor of the 1st respondent. This Court holding that there was no finding by the Munsiff as to the existence of a prima facie case for invoking S.8 of Act 12 of 1966, allowed the revision, though without interfering with the decision of the Munsiff in regard to the question of jurisdiction. Thereafter the Munsiff on 29-5-1971 held that there was a prima facie case for invoking S.8 of Act 12 of 1966. He also referred the matter to the Tahsildar for preparation of record of right with respect to the land in which the kudikidappu was alleged to have been situated. Though that order was challenged in C.R.P. No. 828 of 1971, that was confirmed by this court by the order dated 4-2-1972. 3. In the meanwhile the petitioner had filed O. A. No. 98 of 1970 on the file of the Land Tribunal, Kanjirappally, under S.80B of the Act for purchase of kudikidappu right Thereafter the parties were involved in several revision petitions and writ petitions filed by them in this Court. The present position is that the suit is pending before the Munsiff's Court, while the purchase application is pending before the Land Tribunal Finally the 2nd respondent Land Tribunal, Palai, on whose file the application under S.80B is pending, has passed the order under challenge in this writ petition. 4. The argument advanced by Sri. Krishnan Nair, as already noticed, is that the order staying the proceedings is without jurisdiction inasmuch as it does not fall under any one of the enumerated powers of the Land Tribunal under S.101 of the Act or R.92 of the Rules. There could be no dispute that such a power does not expressly fall within what are enumerated in the section and the rule. The question is, in spite of that being the position, the Land Tribunal can pass an order staying the proceedings pending disposal of the suit instituted earlier on the ground that the issue involved therein is substantially the same as in the proceedings before the Land Tribunal. Sri Krishnan Nair relied on two decisions: M Subbaramayya v. B N. Swamy (AIR. 1972 Andha Pradesh 186) and Syed Ajaz v Mohd. Rafiq (AIR. Sri Krishnan Nair relied on two decisions: M Subbaramayya v. B N. Swamy (AIR. 1972 Andha Pradesh 186) and Syed Ajaz v Mohd. Rafiq (AIR. 1974 Allahabad 178) to support his argument that S.10 and S.151 of the Code of Civil Procedure could be exercised only with respect to suits pending in courts, not to proceedings pending before other forums On the other hand, Sri Thomas V. Jacob, the counsel for the 1st respondent, submitted that though in express terms there was nothing in S 101 of the Act or R.92 of the rules vesting power on the Land Tribunal to stay its proceedings, by necessary implication the conferment of such power on it for the purpose of effectuating the provisions of the Act could be read into the section. 5. The Madras High Court in Aravan Servai v. Kamugan Servai (1958-11 MLJ. 505), after construing the provisions of S.6 and 6A of the Madras Cultivating Tenants Protection Act, Act 25 of 1955, as amended by Act 14 of 1956, has held that the decision of the Revenue Divisional Officer staying proceedings pending decision of a suit before the Munsiff's Court in which a prima facie finding had been entered to the effect that the tenant was not a cultivating tenant, was correct. A Full Bench of this Court in Koran v. Kamal (1977 KLT. 358) has laid down that there was sufficient authority to hold that the principle of finality or conclusiveness of a prior decision or the general principle of res judicata was applicable even to quasi judicial bodies like the Land Tribunal functioning under the Kerala Land Reforms Act, as it would appear that the Land Tribunals were invested with the task of deciding important rights and had to do so on principles of natural justice and fairplay. It is evident that the Full Bench held that the rule of res judicata was applicable to Land Tribunals not because there was any provision akin to S.11 of the Code of Civil Procedure in the Kerala Land Reforms Act; on the other band, it is based on the well recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full and final enquiry should not be permitted to be re-agitated. The principle underlying S.11 CPC., expressed in the maxim "interest reipublicae ut sit finis litium", founded on sound public policy of universal application, the Full Bench thought, could be extended to proceedings before the Land Tribunals also. The argument of Sri Krishnan Nair that it cannot exercise such power in the absence of any provision either in S.101 of the Act or R.92 of the rules empowering the Land Tribunal to stay proceedings before it, cannot therefore be accepted. A Division Bench of the Calcutta High Court in Alula Bala Dasi v. Nirupama (AIR. (38) 1951 Calcutta 561) has held that a court had jurisdiction to postpone the hearing of the suit which was pending before that court in exercise of its inherent power founded on grounds of convenience to render real and substantial justice even when the grounds for staying the proceedings could not be brought within the four corners of S.10 CPC. The decision of the Supreme Court in /. T. Officer v. Mohd Kunhi (AIR. 1969 SC. 430) also would lend support to the position that in appropriate cases a Tribunal would have power to stay the proceedings though there is no specific provision in the Act or the rules under which that Tribunal functions. In the case before the Supreme Court the question as to whether the Incometax Appellate Tribunal had power to grant stay arose for decision. It was held by the Supreme Court that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective: the powers which had been conferred by S.254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective; that was so even when from S.255(5) of the Incometax Act the power of stay could not be spelt out, as the Appellate Tribunal must be held to have power to grant stay incidental or ancillary to its appellate jurisdiction. The decision of the Madras High Court in V. Usman v. Muthukrishnan (AIR. The decision of the Madras High Court in V. Usman v. Muthukrishnan (AIR. 1978 Madras 158) is that in appropriate cases to advance the cause of justice the Rent Control Court could exercise power under S.151 C. P. C., though, in terms, the provisions of that section do not apply to he proceedings under the Madras Rent Control Act. 6. It would have made all the difference if in the Kerala Land Reforms Act there was any express provision by which the Land Tribunal was prohibited from staying the proceedings. So long as there is no such statutory inhibition, it would be open to the Land Tribunal in exercise of its implied power to effectuate the provisions of the Act to pass such orders as it thinks fit and necessary to advance and further the cause of justice, and such a power should certainly include the power to stay the proceedings where the Tribunal is of the opinion that it would be advantageous to avoid conflict of decisions and multiplicity of proceedings to await the decision of the Civil Court on identical issues in a suit instituted prior to the institution of the proceedings before the Land Tribunal. 7. In the present case the suit in question was instituted in the year 1969, before the coming into force of Act 35 of 1969, and the question of the civil court abiding by the decision of the Land Tribunal on questions of disputed tenancy or kudikidappu on a reference under S.125(3) of the act would not arise. Assuming without deciding that the Land Tribunal was not bound to stay the proceedings before it pending decision of the question by the civil court, that would not render its order staying the proceedings as one without jurisdiction. For the foregoing reasons I find no reason to interfere with the decision of the 2nd respondent Land Tribunal, Palai, to stay the proceeding pending disposal of the suit before the Munsiff, Kanjirappally. In that view the writ petition is dismissed, however, in the circumstances of the case, without any order as costs. Dismissed.