KUNHAMMED KOYA Vs. NALLALAM SAW MILLS

JUDGEMENT

(1.) Under challenge in this revision filed under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is the judgment of the Rent Control Appellate Authority interfering with the order of the Rent Control Court and restoring the finding entered by the Land Tribunal to the effect that the lease in question is not a lease of the building, but is a lease of the land for the commercial purposes and that it is the respondent tenant who has put up the building. When the revision petitioner landlord sought to evict the respondent tenant under the provisions of Act 2/1965 on various grounds, a contention was raised by the respondent that he is not a building tenant but is a lessee of land. It was contended that as land was leased out for commercial purpose and as it is he who has put up the building for commercial purpose, he has got immunity from eviction. Noticing the above contention the Rent Control Court referred the question as to whether the respondent is entitled for the protection of Section 106 of the Kerala Land Reforms Act to the Land Tribunal. Before the Land Tribunal the respondent alone participated in the enquiry. Revision petitioner landlord did not participate in the enquiry despite several opportunities given. Belatedly the revision petitioner filed an application before the Land Tribunal offering some explanation as to why he did not participate in the enquiry earlier and seeking opportunity to participate in the enquiry. The Land Tribunal dismissed that application saying that findings have already been entered and the records have been transmitted to the Rent Control Court. By the time the findings were received by the Rent Control Court, a Division Bench of this Court decided C.R.P No. 1265/91 which is reported in Govinda Panicker v. Sreedhara Warrier,2000 2 KarLJ 43 taking the view that the question whether a lessee is entitled to protection under Section 106, need not be referred to a Land Tribunal and that such question can be decided by the Rent Control Court or the civil court itself. The Rent Control Court, therefore, without incorporating the findings, which were sent to that court by the Land Tribunal, conducted further enquiry and concluded on the basis of further enquiry so conducted that the respondent is not entitled for the protection of Section 106 of the Kerala Land Reforms Act. Considering the merits of the eviction ground invoked it was found by the Rent Control Court that none of the grounds invoked was available to the landlord and accordingly eviction order was declined. Aggrieved by this, the respondent preferred an appeal to the Rent Control Appellate Authority urging that the Rent Control Court should have adopted the finding entered by Land Tribunal in the reference under Section 125(3). The learned Appellate Authority under the impugned judgment has noticed that the reference to the Land Tribunal was made on the basis of the directions contained in an order of remand passed by the Appellate Authority and hence the Rent Control Court was bound to adopt the finding entered by the Land Tribunal and has no jurisdiction to conduct independent enquiry into the question that was referred to Land Tribunal. The Appellate Authority considered the sustainability of the finding entered by the Land Tribunal and noticed that the landlord had not participated in the enquiry before the Land Tribunal. According to the Appellate Authority, when a party does not participate in the trial, the Land Tribunal has no option other than to take a decision on the basis of evidence which is available in the case. In that view of the matter what the Appellate Authority did was to set aside the decision of the Rent Control Court to the effect that the respondent is not a lessee entitled to protection under Section 106 and to restore the finding entered by Land Tribunal in the reference under Section 125(3). The Appellate Authority did not consider the evidence which was adduced by the party before the Rent Control Court regarding the claim under Section 106 of the Land Reforms Act, obviously taking the view that whatever evidence was permitted to be adduced on that issue has to be eschewed since Rent Control Court has no jurisdiction to come to an independent decision on the question as to whether the respondent is entitled to the protection of Section 106 of the Kerala Land Reforms Act.

(2.) In this revision under Section 20, the judgment of the Appellate Authority is assailed on various reasons. Sri. V.V. Surendran, learned Counsel for the revision petitioner submitted that as the decision of the Rent Control Court was in the revision petitioner's favour, the revision petitioner did not get an opportunity to assail the finding of the Land Tribunal which is accepted for the first time by the Appellate Authority. According to Mr. Surendran, at any rate, the Appellate Authority could have, as a court of appeal sitting in appeal over the Land Tribunal's finding also, examined the issue afresh on the basis of the entirety of the evidence recorded before the Land Tribunal and before the Rent Control Court. Reliance was placed by Mr. Surendran on the judgment of this Court in Govinda Panicker v. Sreedhara Warrier (cited supra).

(3.) All the submissions of Mr. Surendran were resisted by Mr. N.M. Madhu, learned Counsel for the respondents. According to Mr. Madhu, even if it is conceded that the judgment in Govinda Panicker v. Sreedhara Warrier brings forth an amendment, the same is in procedural law only. Unless otherwise expressed amendments of procedural law are to be taken as prospective only. That being so, the decision cannot have any application to the present case where the reference has already been made. Mr. Madhu referred to paragraph 22 of the judgment in Govinda Panicker's case and submitted that the judgment itself provides that the decision does not pertain to cases where reference is already made. Mr. Madhu submitted on the authority of a decision of the Karnataka High Court in T.H. Yashawanta and Ors. v. T.J. Jagadeesh and Ors., 1999 ILR(Kar) 2924 that whatever evidence was adduced before the Rent Control Court after that court received findings of the Land Tribunal was recorded by that court without jurisdiction and hence ought to have been eschewed from consideration.