THAMUKUTTY Vs. ATHANKUTTY

JUDGEMENT

(1.) THIS petition is by the landlord, and is under Art. 227 of the Constitution, to bring up the records in C. M. Appeal 150 of 1957 in the court of the Subordinate Judge, Kozhikode , for quashing the order passed by him thereon, on December 1 ,1958 , remanding an application for the fixation of fair rent under S. 16 of the malabar Tenancy Act, 1929, which may be referred to hereafter as the 'act', for decision afresh by the Rent Court. The first respondent in this petition, who is the tenant, had made a previous application under S. 16 which was dismissed for default; an application made by him for its restoration was also dismissed. He then made a fresh application under S. 16, but the Rent Court , accepting the objection of the petitioner to its maintainability, dismissed the same. The first respondent preferred the c. M. Appeal aforesaid, when the order impugned came to be passed. The learned subordinate Judge has held , that the second application under S. 16 is maintainable, by reason of the proviso to S. 16 and of s. 20 of the Act. In my opinion, both these grounds are untenable. The proviso to S. 16 reads: "provided that such determination shall take effect in respect of any agricultural year only if the application is made in that year or within three months of the expiry thereof and S. 20 reads: "the fair rent determined by the Rent Court shall not be liable to be revised on the application of the landlord before the expiry of twelve years from the date of the order of the Rent Court, but may for sufficient cause be reduced by the said Court on the application of the tenant. " The object intended to be served by the proviso to S. 16 is to declare, when the determination of fair rent shall take effect, that is, if the application is made in a particular year, the determination shall take effect in respect of that year or within three months of the expiry thereof; it has no other effect. S. 20, which provides for the revision of rent, pre-supposes as a necessary condition , a prior determination of fair rent by the Rent Court. Obviously, where, as in the present case, there is no such determination, no question of revision could arise. The learned Subordinate Judge was therefore in error in acting upon these two provisions for remanding the application.

(2.) BUT in my judgment, the petitioner has to fail for a different reason. There is no specific provision in the Act imposing a bar on a second application in such circumstances. BUT it was contended by the learned counsel for the petitioner, that the provisions of the Civil Procedure Code being made applicable to "the hearing of an application under this act" by the Rent Court by S. 15 (2) and to "proceedings relating to applications under this Act" by S. 49 of the Act, Order IX, R. 9, C. P. C. which debars a plaintiff from instituting a subsequent suit on the same cause of action in the event of the dismissal of an application to restore the suit, must similarly preclude a party from making a subsequent application for the fixation of fair rent. The argument was, that, as in the case of a suit, in the case of an application under S. 16 too, there is a cause of action for it, and that a second application can be based only on the same cause of action, as the first. I cannot find my way to" agree with this proposition. Under Order vii, R. 1, CPC. the particulars to be contained in the plaint include, by clause [e] thereof, "the facts constituting the cause of action and when it arose", but there is no such prescription in R. 10 of the Malabar Tenancy [determination of Fair Rent] Rules, 1954, which was framed in the exercise of the rule-making power under S. 57 of the Act and which lays down, what every application to the Rent Court for the fixation of fair rent should contain; a large number of such particulars are set forth in R. 10, but cause of action, is not one of them. In my view, the Act has dispensed with the necessity for a cause of action for an application, or at any rate, has not made it a necessary element for an application under S. 16. Whether a cause of action as known to the Civil Procedure Code is at all necessary, to sustain an application under s. 16, itself is doubtful. The learned counsel has urged , that the word 'dispute' occurring in the section does not imply the existence of a cause of action. I am led to think, that it relates merely to the occasion which necessitates an application under S. 16 being made, and does not per se import the existence of a cause of action. S. 49 and 15 [2] of the Act do not enact, that every provision in the Civil Procedure Code shall be made applicable to proceedings under the Act or in the Rent Court but only those which can be made applicable to them. The words 'so far as may be' occurring in these provisions, give a certain elasticity to the procedure to be followed under the Act, rendered necessary, on account of the peculiar nature of the proceedings, as distinguished from suits. I therefore hold, that the provisions of Order IX, R. 9, C. P. C. , cannot be wholly applied to applications under S. 16. If that is so, the petitioner cannot contend, that the dismissal of the application for restoration operates as a bar to the second application under s. 16.