ACHUTHA MENON Vs. NARAYANAN

JUDGEMENT

(1.) The question involved in this revision petition is whether the provision of O.9 R.9 of the Civil Procedure Code applies to an application, for fixation of fair rent under Act 1 of 1964 so as to bar a subsequent application after an earlier one had been dismissed for default. The Land Tribunal held that the said provision was a bar; and on that ground it dismissed the tenant's application for fixation of fair rent. The appellate authority held that the provision had no application to application for fixation of fair rent. It set aside the order of the Tribunal and remanded the matter back for investigation on the merits. The aggrieved landlord is the revision petitioner before us.

(2.) S.101 of the Kerala Act 1 of 1964 which defines the powers of the Land Tribunal, confers, by clauses (a) to (d) thereof, certain enumerated powers under the Civil Procedure Code, and leaves other powers to be "prescribed" by rules framed under the Act. The power under O.9 R.9 is not expressly conferred by clauses (a) to (d). R.99 reads:

(3.) Giving the matter our careful attention, it appears to us that the Full Bench decision in Kalyani Amma's case (1967 KLT 317) was concerned with a procedural provision and not with a substantive one, such as what was involved in the present case. The present position appears to be directly covered by the decision in Thamukutty v. Athankutty ( 1961 KLT 31 ) rendered with respect to the provisions of the Malabar Tenancy Act. S.15(2) of the said Act made the provisions of the CPC. applicable to the hearing of an application under the said Act, by the Rent Court. And S.49 of the Act enacted that the provisions of the CPC. will govern the proceedings relating to applications under this Act. It was held that these provisions of the Act did not take in the power under O.9 R.9 of the Civil Procedure Code which debars a plaintiff from instituting a suit on the same cause of action in the event of the dismissal of an application to restore the suit. This decision is directly in point, and, as rightly pointed out by the appellate authority, was not noticed, much the less overruled, by the Full Bench in Kalyani Amma's case (1967 KLT 317).