VISHNU BHASMARITHAYA Vs. KUNNUNGAL KANNAN

JUDGEMENT

(1.) A suit on the small cause side of the Court of the Munsiff-Magistrate of Hosdrug has given rise to the Civil Revision Petition, the plaintiff being the petitioner. The suit was for arrears of rent from 30th Kanni 1133 to 30th Kanni 1134.

(2.) In revision the learned advocate of the petitioner raises two points: (1) that the same plea of abatement was raised in a proceeding before the Rent Court for fixation of fair rent, which petition was not pursued to conclusion and (2) that the small cause court had no jurisdiction to entertain a suit for apportionment of rent. Regarding the first point, I am of opinion, that the tenant's remedy by way of abatement is independent of his statutory right to have the fair rent fixed. If fair rent has already been fixed and if a portion of the property is silted up, the tenant is entitled to abatement even of the fair rent in proportion to the extent silted up to the extent included in the lease. Similarly, if there has been no fixation of fair rent and there is silting, the tenant is entitled to abatement and his right to claim abatement is not lost by not pursuing his remedy under the Malabar Tenancy Act before the Rent Court by way of an application for fixation of fair -rent. Therefore the first point has no force.

(3.) Coming to the second point, it was the plaintiff who brought the suit on the small cause side of the lower Court and the defendant raised the claim for abatement. If the plaintiff questioned the jurisdiction of the small cause Court to apportion rent, he should have moved for a transfer of the suit to the original side. Now that the lower Court has considered the suit on merits and has given a decision, the High Court in revision is not bound to upset that decision, merely because the lower Court had no jurisdiction to try the suit. In a recent" decision in Ummini Padmanabhan v. Madi Pillai Lekshmi Pillai (CRP No. 1075 of 1959) I have considered two decisions of the Madras High Court and the Andhra Pradesh High Court respectively and following them have held that the High Court will not interfere in revision in a case, where the lower court wrongly tried an original suit on its small cause side or a small cause suit on its original side, if the decision of the Trial Court is otherwise right, merely because the lower Court lacked jurisdiction for such trial. Therefore the second point also has no force.