KUNHAMMA AMMA Vs. CHANDU

JUDGEMENT

(1.) THIS second appeal is in a suit for resumption of property demised under a kanamchit (Ext. A-1), which has been allowed by the munsif, but been dismissed by the District Judge, on appeal, under the provisions of Act IV of 1961. It is conceded at the bar that the right of resumption of the landlord has to be adjudged under the provisions of the kerala Land Reforms Act, I of 1964 hereinafter the Act and, if the claim is now to be disposed of on merits, the suit has to be remitted to the Court of first instance therefor.

(2.) BUT counsel for the respondent-tenant contends that, as no application under S. 132 (3) (c) of the Act has been filed within one year of the commencement of the Act which period is now over the claim for resumption cannot now be adjudged by the court. Counsel for the appellant landlord relies on S. 132 (1) (a) of the Act to sustain the appeal. S. 132 reads thus: 132. (1) (a) The Proclamation XVI of 1122 (Cochin), dated 14th February, 1947, the Proclamation VI of 1124 (Cochin), dated the 12th january, 1949, the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962 and the Kerala Tenants and Kudikidappukars Protection Act, 1963, are hereby repealed, and all suits, appeals, revisions, reviews and proceedings in execution of decrees stayed by the said enactments may be disposed of by the courts in which they were pending at the commencement of this Act, in accordance with the provisions of this Act. ib) (2) (3) Notwithstanding the repeal of the enactments mentioned in sub-section (2), (a) (b) (c) (i) where the decree-holder, plaintiff, appellant or petitioner, as the case may be, is a person entitled to resumption of land under this Act, he shall have the right to apply to the court to allow resumption of the holding or any part thereof to which he is entitled; (ii) the application under sub-clause (i) shall be made within one year from the commencement of this Act and shall contain a statement of facts in support of the claim of the applicant and also the names and addresses of all persons who have interest in the holding, either as owner, lessee or kudikidappukaran; (iii) the court shall dispose of the application as if it were an application for resumption before the Land Tribunal under this Act; There cannot be any doubt that this second appeal in a suit for resumption of property from a kanomdar, came within the scope of the statutory stay directed in the Kerala Tenants and Kudikidappukars Protection act, 1963. S. 132 (1) (a) of the Act requires that all suits "stayed by" the Kerala Tenants and Kudikidappukars Act may be disposed of "by the courts in which they were pending at the commencement of this Act, in accordance with the provisions of this Act. " No doubt, clause (i) of sub-section (3) (c) provides that "where the appellant is a person entitled to resumption of land, he shall have the right to apply to the Court to allow resumption of the holding"; and clause (ii) thereof says that if he exercises that right, " the application shall be made within one year from the commencement of this Act. " In my opinion, those clauses have no relevance where a suit or application for resumption has already been made and was pending in a Court at the commencement of the Act, in which case the provision relevant is S. 132 (1) (a) only. The expression of clause (i) of S. 132 (3) (c) "he shall have the right to apply" shows that it contemplates cases where no motion for resumption has already been made; for, law does not contemplate duplication of proceedings in the same Court for the same relief. A pending suit and a fresh application, when both are for the same relief, can only be duplicate proceedings. The direction in S. 132 is not to dismiss the suit and try the application, but to dispose of the suit on merits in the light of the provisions of the Act. If the suit itself is to be disposed of "in accordance with the provisions of this Act" a fresh motion therefor, even by an application, becomes meaningless. The rule of harmonious construction then suggests that the application can only be where a prayer for resumption has not been made in pending suit or appeal say, in a suit for arrears of rent. Even if duplication of proceedings is deemed to be permitted, there is no provision in sub-section (3) (c) of S. 132 to dismiss a pending appeal for resumption if a fresh application for relief is not made within one year of the Act. The rule is to construe a provision, which carries no penalty for non-compliance as directory and not mandatory. See Jagan Nath v. Jaswant Singh (AIR. 1954 S. C. 210 ). I hold this second appeal to be within the ambit of sub-section (1) (a) and outside the ambit of sub-section (3) of S. 132 of the Act and allow the same, remitting the suit, in so far as it relates to resumption of property, to the Court of first instance for disposal de novo. In the circumstances of this case, I make no order as to costs here. Counsel for the respondent requests leave to appeal under s. 5 of the Kerala High Court Act. Leave is given.