MARRY KUNCHERIA Vs. MATHEW

JUDGEMENT

(1.) The point for decision is whether a suit for recovery of arrears of rent due from a person who had surrendered possession of the holding before the date of the suit was liable to be stayed under S.4 of The Kerala Stay of Eviction Proceedings Act (I of 1957). The 1st defendants deceased husband had taken on lease 50 acres of paddy field from the plaintiff. The lease terminated in March 1953 and from the order of the court below it appears that possession was surrendered to the plaintiff before the date of suit. The plaintiff sued for recovery of the rent which fell due in March 1953. Before the 1st defendant filed her written statement, Act I of 1957 was passed and thereupon she moved for stay of trial of the suit under S.4 of the Act. This was resisted by the plaintiff on the ground that the lease was not subsisting and that the 1st defendant was not therefore entitled to such an order. The court below upheld the plaintiffs objection and declined to pass an order staying the suit. The 1st defendant has therefore preferred this Civil Revision Petition.

(2.) The question whether the trial of the suit should be stayed or not depends on the construction of S.4 of the Act which is as follows :

(3.) According to the learned Judge, the preamble of the Act indicated that it was intended to give temporary protection to tenants, Kudikidappukars etc., pending enactment of a comprehensive legislation relating to tenancy and a person who had surrendered possession of the holding was not a tenant entitled to such protection. I am unable to accept this conclusion. The learned Judges view is based solely on the preamble of the Act and the section has been totally ignored by him. The general rule regarding the effect of the preamble upon the enacting part of the statute has been stated by the Earl of Halsbury in Powell v. Kempton Park Racecourse Co. (1899 A. C. 143) in the following terms: