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2000 DIGILAW 30 (KER)

Subba v. Bhaskaran Nair

2000-01-17

A.LEKSHMIKUTTY, S.SANKARASUBBAN

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ORDER 1. C.R.P. No. 335 of 1991 is filed against the order of the Appellate Authority (Rent Control), Kasaragod in R.C.A. No. 24 of 1989. The tenant is the revision Petitioner. The landlord filed an application for eviction under Section 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act. In the objections filed, the Petitioner raised the objection that he was a cultivating tenant. That issue was raised and it was referred to the Land Tribunal. The Land Tribunal held that the Petitioner is not a cultivating tenant. Thus, the tenant could not go ahead with his claim of permanent tenancy. Then he filed an amendment application claiming the right of kudikidappu. That application was dismissed by the trial Court and it was confirmed in appeal by the appellate authority. It is against that the present revision is filed. 2. The rent control petition was filed in 1983 and the amendment application was filed only on 1988, that too, after the tenant failed to get the reference answered in his favour. This Court has, in many cases, held that, a second reference is not possible and that in the first reference itself all the contentions of the person who wants the reference should be made. Both the trial Court and the appellate authority relied on the decision reported in Narayanan v. Kunchi Amma Parukutty Amma 1986 K.L.T. 1340. Learned Counsel for the Respondent brought to our notice the decision reported in Devaki Amma v. Philipose 1992 (2) K.L.T. 281 and Abdulrahiman v. Abdulla Haji 1991 (1) K.L.T. 702 . 3. Learned Counsel for the Petitioner brought to our notice the decision in Kunhambu v. Kunhammar 2000 (1) K.L.T. 490 . Learned Counsel brought to our notice a passage from the decision, which is as follows: ...The principle of constructive res judicata as enjoined in Explanation IV to Section 11 of the Code of Civil Procedure cannot be raised to defeat that claim of the tenant because the respective applications are in the forms statutory prescribed wherein one cannot raise different pleas available under different sections. In that case, the question that was considered was whether a person who filed an application under Section 72B of the Kerala Land Reforms Act, 1964 and got ousted can raise the question of kudikidappu in a later suit. In that case, the question that was considered was whether a person who filed an application under Section 72B of the Kerala Land Reforms Act, 1964 and got ousted can raise the question of kudikidappu in a later suit. It was in that context, an observation was made that a right under a statute cannot be defeated by the principle of res judicata. It is not necessary for us to consider the correctness of the decision, because, according to us, so far as the facts in hand are concerned, they are different from the facts in the reported case. The principle of pleadings is that, the party should raise the objections at the earliest time. In this case, earlier there was a contention that he was a cultivating tenant. It was open to the Petitioner to raise the contention that he is a cultivating tenant or a kudikidappukaran. But he raised only the first contention. The claim of kudikidappu was not raised. It was only when the Land Tribunal rejected his plea and entered a finding that he is not a cultivating tenant, Petitioner sought to amend the written statement. According to us, this amendment is not bona fide and is a belated one. Hence, the amendment cannot be allowed. C.R.P. No. 335 of 1991 is dismissed. 4. So far as C.R.P. No. 62/98 is concerned, Petitioner is the Appellant in A.A. 13/89. C.R.P. is filed against the concurrent finding by which it was held that Petitioner was not entitled to purchase of landlord's right and title under Section 72B of the Kerala Land Reforms Act. The proceedings arise under the suo motu proceedings. According to us, it is not necessary for us to decide this question, because in C.R.P. No. 335/91 on a reference at the instance of the Petitioner, the Land Tribunal has returned a finding that he is not a cultivating tenant. That finding will be part of the finding of the rent control Court which the rent control Court is to give. If the Court gives an adverse finding against the Petitioner, then in appeal the Petitioner can challenge the finding of the Land Tribunal. With liberty to the Petitioner to challenge the order in case the rent control Court decides against him, C.R.P. No. 62 of 1998 is disposed of.