DAYANANDA PAI Vs. MADHAVA MALLIA

JUDGEMENT

(1.) THE question raised in this Original Petition (filed under Art. 227 of the Constitution of India) is whether the petitioner is debarred from taking up the plea that be is a kudikidappukaran. THE ancillary question is whether such a question "arises" for decision in the proceedings initiated by a landlord against the petitioner. THE District Court, while disposing of a revision petition filed under S. 20 of the Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') found that the tenant is estopped from taking up such a plea.

(2.) THE said finding is based on a previous rent control proceeding between the same landlord and tenant, in which the tenant did not raise the plea of kudikidappu. In 1975 the same landlord filed an application under S. 11 of the Act against the same tenant as RCP. No. 73/75. In the objections filed by the tenant he took up several contentions but he did not advance a plea that he is a kudikidappukaran or that he has kudikidappu right. THE landlord, for other reasons, did not pursue that petition. It was thus got dismissed. In 1983, the landlord filed the present rent control petition for eviction of the tenant on the grounds of arrears of rent and bona fide need for occupation. THE tenant raised different contentions in resistance of the landlord's action and one of the contentions is that he is a kudikidappukaran of the building. During pendency of the present rent control proceedings, the landlord filed two interlocutory applications, one for a direction to the tenant under S. 12 of the Act to deposit the admitted arrears of rent and the other for issuance of a commission. THE former interlocutory application was dismissed on the ground that the objection filed by the tenant does not reveal that there is an admission regarding arrears of rent. It was also observed that there is no estoppel against the tenant as far as the claim of kudikidappu is concerned. But while allowing the other interlocutory application, the Rent Control Court expressed the view 'that since the tenant omitted to raise the plea of kudikidappu in the earlier rent control proceeding, it is impermissible for him to raise such a plea now. Both the said orders were challenged in appeal, at the instance of both the landlord and the tenant. Appellate Authority took the view that the tenant is not barred by res judicata to raise the claim of kudikidappu, though the point of estoppel as such was not considered. At the same time, the Appellate Authority directed the Rent Control Court to take up the application for issuance of commission only after receipt of a finding from the Land Tribunal on a reference under S. 125 (3) of the Kerala Land Reforms Act (Land Reforms Act, for short ). THE District Court, in revision, set aside the judgment of the Appellate Authority on the finding that "since the tenant failed to put forward the plea of kudikidappu in the earlier rent control proceedings, he could not validly put forward the said contention in the subsequent proceeding; the said contention now put forward is hit by rule of estoppel". This original petition is in challenge of the said order of the district Court.

(3.) IN this case the petitioner is precluded from contending that he is a kudikidappukaran in view of his conscious omission to raise such a plea in the earlier rent control proceeding. Hence the question does not "arise" and therefore, there is no obligation to make a reference under S. 125 (3) of the Land Reforms Act. The order of the District judge, therefore, does not require any interference. This original petition is accordingly dismissed in limine. . .