MUHAMMATHU Vs. MOIDEEN SASHIB

JUDGEMENT

(1.) Clause.15 -- Buildings Lease and Rent Control Proclamation, 1122 (Cochin), S.7(2), Proviso 3 -- Landlord taking possession in pursuance of eviction order -- Proclamation XXI of 1122 came into force pending tenant's appeal -- Jurisdiction of the appellate authority in respect of the condonation contemplated in the proviso is dependent on the existence of the fact that the tenant has not actually been evicted -- Condoning of forfeiture by appellate authority is without jurisdiction

(2.) This appeal raises an important question bearing on the Cochin Buildings (Lease and Rent Control) Proclamation, IV of 1122 and XXI of 1122. On 25-9-1122 the Rent Controller passed an order under S.7 (2)(i) of Proclamation IV of 1122 for eviction of the tenant from a shop room in the Trichur town. The landlord put the order in execution and obtained actual possession of the shop room on 25-9-1122. Against the order of the Rent Controller the tenant preferred an appeal to the appellate authority. While the appeal was pending the Cochin Buildings (Lease and Rent Control) (Amendment) Proclamation XXI of 1122 came into force. On the merits of the appeal the appellate authority found that the order appealed against was correct but in view of the Cochin Buildings (Lease and Rent Control) (Amendment) Proclamation XXI of 1122 he permitted the tenant to deposit the arrears of rent in accordance with proviso 3 added under S.2 of that Proclamation and passed an order setting aside the Rent Controller's order and condoning the forfeiture in spite of the objection taken by the landlord that the appellate authority had no jurisdiction to pass such an order in view of the fact that the tenant had already been evicted before the amendment Proclamation came into force. In pursuance of the order of the appellate authority the tenant filed an application before the Munsiff for restitution on the basis of the order of the appellate authority. The learned Munsiff on a construction of the relevant provisions of Proclamation XXI of 1122 held that the order of the appellate authority was ultra vires and of no legal effect. Therefore, he dismissed the application for restitution. In appeal the learned District Judge confirmed the order of the learned Munsiff. The tenant has therefore come in second appeal.

(3.) A preliminary objection was taken by the learned Advocate for the respondent that the order passed by the learned Munsiff is not appealable. The same objection was taken in the lower appellate court and though the learned Judge has considered the case on the merits has also recorded the view that the order is not appealable since it would be deemed to have been passed by the learned Munsiff under his inherent powers. I do not however think that the preliminary objection is sustainable. S.9 of the Proclamation IV of 1122 provides that:-