KUNIYIL Vs. UCHUMMAL CHAKKIATH ANANDAN

JUDGEMENT

(1.) An interesting question of res judicata which has occasioned this reference to a Division Bench has been debated in this Second Appeal. The unsuccessful defendant in the courts below is the appellant before us. The suit against him was for recovery of the plaint schedule house with arrears of rent and future rent, on the strength of an oral lease, alleged to have been made on 14-11-1955, on a monthly rent of Rs. 7/-. The defence was that the oral lease set up was not true and that the property was held on a monthly rent of Rs. 3/-, under an entrustment of 1944. Both oral and documentary evidence were adduced by the parties in support of their respective contentions. Both the courts below without going into any of these, decided the case in favour of the plaintiff, on the ground that in a prior small cause suit. S. C. 16 of 1960, Munsiff's Court, Tellicherry, the oral lease as alleged by the plaintiff had been found and that the judgment in the said suit (Ext. A2) constituted res judicata against the defendant. The correctness of this finding has been assailed before us. Besides the importance of the question of law involved, substantial rights seem to turn on the contention of the Defendant, for, if the entrustment was on a monthly rent of Rs. 3/- as alleged by the Defendant, he would, according to him, be entitled to 'kudikidappu' rights and therefore immune from eviction under the provisions of the Kerala Act 1/1964 and the subsequent legislations.

(2.) That the oral lease as set up by the plaintiff was found to be true in Ext. A 2 judgment is beyond controversy. S.11 of the Code of Civil Procedure in so far as it is material, enacts the rule of res judicata, as follows:

(3.) S.11 of the Civil Procedure Code affords no warrant to import any distinction between the ordinary 'civil courts' and 'small cause courts'; nor, to regard the latter as outside the purview of the former. The expression "court" used therein, is comprehensive in its sweep to cover the small cause courts as well. Sufficient indications are available from the Civil Procedure Code, the Kerala Small Cause Courts Act 1957, and from the Kerala Civil Courts Act 1957 to conclude that the small cause court is an ordinary civil court. S.3 of the Civil Procedure Code dealing with the subordination of courts mentions also a court of small causes. Save the provisions excepted by S.7 and Order L, the rest of the Code is applicable to small cause courts also. And S.9 of the Code confers comprehensive jurisdiction on all courts to try suits of a civil nature except those, the cognizance of which is expressly or impliedly barred. S.2 of the Kerala Civil Courts Act, enumerates the classes of 'Civil Courts' in the State ''in addition to the courts established under any other law for the time being in force", thereby implying that the small cause court established by such 'other law' is a 'civil court'. S.18 provides for investiture of a District Judge or Subordinate Judge or Munsiff with small cause jurisdiction upto certain pecuniary limits. S.12(2) of the Kerala Small Cause Courts Act provides that subject to exceptions, all suits of a civil nature not exceeding a certain value, shall be cognizable by a court of small causes. The provisions of S.13 of the said Act will be referred to later. In addition to the above statutory provisions, we may usefully refer to the following observations of Venkitarama Iyer J. in Kalavagunta Srirama Rao v. Kalavagunta Suryanarayanamurthy & Others ( AIR 1954 Mad. 340 ):