KALLIANIKUTTY AMMA Vs. EACHARAN NAIR

JUDGEMENT

(1.) The first respondent in this petition applied to the Rent Court under the Malabar Tenancy Act, 1929, as amended, for the fixation of fair rent of a holding, alleging himself to be the sole tenant thereof under the petitioner landlord. The latter contended, that the second respondent in this petition, who is the wife of the first respondent, was also a joint tenant of the holding with the first respondent, and that therefore the application for the fixation of fair rent made by the first respondent alone was not maintainable. Earlier, the petitioner had instituted a suit O.S. No. 234 of 1955 in the Ottapalam Munsiffs Court for the recovery of arrears of rent from the tenants, being respondents 1 and 2 who were impleaded as defendants therein. The Rent Court, while holding that the proceedings before it for the fixation of fair rent cannot be stayed under the provisions of S.10 of the Civil Procedure Code, dismissed the application, on the ground, that the question as to who are the tenants was the subject matter of the suit aforesaid, and that therefore the application could not be maintained. The first respondent took the matter on appeal to the subordinate Judge at Ottapalam who decided, that the Rent Court is competent to decide the above question and remanded the matter to the Rent Court for trial and decision. This petition has been filed to quash the order passed by the Subordinate Judge.

(2.) The competency of the Rent Court to decide the preliminary question, as to who are the tenants of the holding, was not challenged before me by the learned counsel for the petitioner. In support of this, there is the authority of the decision of the full bench in Ukkavummakutty Umma v. Choivi Choyikutty, 1958 KLT 686 . The learned counsel for the petitioner pressed before me, that under S.10 of the Civil Procedure Code the trial of this issue by the Rent Court has to be stayed till the suit is disposed of and he relied on S.141 of the Civil Procedure Code for extending the principle of S.10 to a proceeding of this kind. But here, it is not a case of two parallel suits or two parallel proceedings, but is a case of an earlier suit and a later proceeding under a special enactment. Granting that the principle of S.10 can be invoked. I am not persuaded, that the essential condition for its application has been fulfilled. The learned counsel relied on Jai Hind Iron Mart v. Tulsiram Bhagwandas, AIR 1 953 Bombay 117 & Kunhi Sankara Ejaman v. M. Venkappa Bhatta , AIR 1954 Mad. 320 , to contend, that in order to attract S.10, C.P.C. the entire subject matter of the two suits or proceeding need not be the same. The facts, on which the above decisions were rendered, are not applicable to the present case. In the Bombay case, Chagla, C.J. also laid down, that though the subject matter of the suits or proceedings need not be entirely the same or indentical, the subject matter and field of controversy must be substantially the same. This was also the view taken by Ratnaswami, J., in the Madras case cited. Apart from the preliminary question as to the tenancy indicated above, the matter in issue and the field of controversy in the proceeding in the rent court relate to the fixation of fair rent in accordance with the provisions of the Malabar Tenancy Act, 1929, while the matter in issue and the field of controversy in the civil suit, relate chiefly to the liability for arrears of rent sued for, with all its implications, including the rate of rent and the persons liable to pay the same. I hold that even the test laid down in the cases cited before me has not been satisfied in the present case. It is unnecessary to consider other cases decided under S.10, C.P.C. which have formulated other tests for its applicability. I therefore come to the conclusion, that the principle of S.10, CPC. cannot be invoked.

(3.) It follows, that the petition must fail. It is accordingly dismissed with costs, including advocates fee Rs. 100 to the respondents.