KRISHNAN NAIR Vs. VELAYUDHAN

JUDGEMENT

(1.) THE question for decision in these cases, relates to the interpretation of the term "any Rent Court" and "the Rent court", occurring in S. 7, Sub-Section 2 of the Malabar Tenancy Amendment act, Act XXII of 1956, or shortly, the amendment Act, that is, whether they mean a "rent Court" as defined in S. 3 (26), and as constituted for a specified area by notification pursuant to S. 15 (1), of the Malabar Tenancy Act 1929, Act XIV of 1930, as amended by Acts XXXIII of 1951, and VII of 1954, which may hereafter be referred to, as the principal Act, or whether they refer to the Subordinate Judge having jurisdiction over the area, in a case where he has decided an appeal against the fixation of fair rent by the Rent Court. Under the principal Act, fair rent for an year for a wet land, is deemed to be one-half of the "net paddy produce" of the land for that year, which in its turn, means the "normal produce", that is, the produce which would be raised under normal seasonal conditions, less the expenses of cultivation and of harvesting. In the case of a double-crop wet land, the "normal produce" would relate to the produce for both the crops, so determined. THE amendment Act brought about a change in the concept of "normal produce" for a double-crop wet land, by introducing the following explanation to S. 4 of the principal Act: - "in ascertaining the normal produce, the yield of the second crop shall be deemed to be half of that of the principal crop which shall be deemed to be the first crop" THE effect of this, was to provide a rule of thumb, as it were, for the ascertainment of the "normal produce" for the second crop, by fixing it in all cases, regardless of realities, as equivalent to one-half of that of the first crop. THE rule was also given retrospective operation, by further providing, by S. 7 (2) of the amendment Act, that any fixation of fair rent which might have been made already and have become concluded, may be reopened, on an application made by the tenant, within three months of the commencement of that Act. S. 7 (2) is in these terms: "where before the commencement of this Act any Rent court has fixed fair rent, the Rent Court shall on application by the tenant within three months of such commencement, amend the order fixing fair rent by giving effect to the provisions of the principal Act as amended by this Act, and the principal Act as amended by this Act shall also apply to petitions, appeals and other proceedings pending at such commencement. "

(2.) IN the three cases to which this order relates, the rent Courts, as constituted under the principal Act, had fixed the fair rents for the concerned wet lands, and the Subordinate Judges had also decided the appeals directed against such fixation. Subsequent to the passing of the amendment Act, and within the period of three months specified in S. 7 (2)thereof, the tenants in these cases, made applications to the concerned subordinate Judges, for amending the orders fixing the fair rents, by applying the rule aforesaid. IN one case, Sri. P. Unnikrishna Kurup, the Subordinate judge at Ottapalam, by order dated the 11th December, 1956, entertained the application and ordered amendment, and the landlord has preferred O. P. 450 of 1958 under Art. 227 of the Constitution, for quashing the order. IN the second case, Kumari P. Janaki Amma, the Subordinate Judge at Ottapalam dismissed the application, by order dated the 5th February, 1958, on the ground, that it lay before the Rent Court, and that she has no power to order the amendment, and C. R. P. 384 of 1958 filed by the tenant is directed against it. IN the third case, a similar order was passed by Sri. A. Gopalakrishnan, the principal subordinate Judge at Palghat, on the 2nd December, 1958, and O. P. 227 of 1959 preferred by the tenant is for quashing it.

(3.) IT was contended, that there would be such repugnancy in a case where the Subordinate Judge, by deciding an appeal under S. 17 of the principal Act may be deemed to have himself fixed the fair rent, and filled thereby the character of the "rent Court", within the meaning of S. 7 (2) of the amendment Act. We cannot agree that this involves any repugnancy, with the scheme of the principal Act or with the definitions in it as discussed above or has any overriding effect on them. A decree passed by a court of first instance, may no doubt be deemed to be merged in the decree passed on appeal; but this is so, only for certain purposes of the Civil Procedure Code. "the function of an appellate Court is to determine what decree the court below ought to have made", as held by the Privy Council in Kristo Kinkur roy v. Rajah Burroda Caunt Roy, (1872) 14 M. L. A. 465. If so, the decision is in law that of the Rent Court, though it was rendered or was set right in appeal.