CHACKO Vs. VARKEY

JUDGEMENT

(1.) IT was argued by counsel for the petitioner, that the lower court had no jurisdiction to entertain an additional written statement at that stage, and that the jurisdiction of that court was limited to the matters specified in the order of remand. That, when a court remands a case, the jurisdiction of the court to which it is remanded is limited by the order of remand, and that it cannot take into consideration matters other than those specified in the order of remand, is clear from the following rulings. C. N. Ambrose v. Meenakshi (1953 TC. 109), m. L. Das & Sons v. Sampatmull (1954 Calcutta 103) and Sunder Ahir v. Phuljharia (1957 Patna 534 ). Therefore, counsel contended , that the order of the court accepting the written statement was without jurisdiction, and therefore, I must invoke my jurisdiction under S. 115 off the civil Procedure Code. I am not impressed by the argument. S. 6 of Act IV of 1961 is clear that if the defendant can establish that he is a tenant coming within the purview of the Act he is entitled to disregard any decree that; may be passed in the case. In this case even though the preliminary decree has been passed based on the relationship of the mortgagor and the mortgagee, it is open to the defendant to show that he is a tenant coming within the purview of the Act and claim the benefit of fixity of tenure. Even if a final decree has been passed, it is open to a defendant to put forward the contention that he is a tenant within the purview of the Act. I am therefore of opinion that even though there is a preliminary decree settling the relationship of the parties as a mortgagor and mortgagee, it is open to a defendant to putt forward the contention that he is a tenant coming within the purview of Act IV of 1961. That is what is expressly enacted by the Legislature.

(2.) THE second point raised by counsel was that, it is only on the existence of a certain relationship between the parties, that the act applies. In other words, his contention was that the relationship of the parties must be that of a tenant and landlord. Unless there is that relationship, the Act cannot have any application. He referred to the preamble of the Act and contended that the basis, for applying the Act, is the existence of the relationship of landlord and tenant and that a decree settling the rights of the parties as a mortgagor and mortgagee cannot be re-opened, by applying the Act which is intended only to apply to persons occupying the positions off landlord and tenant. In this connection he cited the decision reported in AIR. 1962 SC. 547. But in my view that decision does not afford any assistance, as the question which I have to decide is something entirely different. When it is stated in S. 6 of Act IV of 1961 that notwithstanding any decree or order of the court a tenant is entitled to claim the benefit of the Act, it can only mean, a tenant as defined in the Act and therefore, even though the relationship between the parties was settled on the basis of debtor and creditor, it is open to the defendant to contend that that relationship no longer subsists because the Act has changed it. THErefore, i have to come to the conclusion that it is a defenc e open to a defendant although there is a decree settling the relationship on the basis of the mortgage.