M V MOHAMMED Vs. GOPALANKUTTY MENON
HIGH COURT OF KERALA
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(1.)I do not as a rule entertain revisions against orders allowing or declining a stay of a suit under provisions like S. 4 of Act 1 of 1957 or S. 5 of Act 7 of 1963. For, apart from that (as pointed out by me in C. R. P. 192 of 1963) they rarely disclose an error of jurisdiction, they are so obviously an attempt to obtain a Decision from this court in an interlocutory matter, before evidence has been recorded in the suit, to (in effect) prejudge an issue that has to be heard and decided in the suit. But, in these cases there was a finding recorded in the suits themselves (on issues tried as "preliminary issues" not a provisional or a preliminary finding as counsel for the respondents would have it, but, if I might use that expression, a pucca finding) that the transaction under which the defendant petitioner holds is a lease and not a mortgage. That finding the court below was bound to follow in subsequent proceedings in the suits, and, in ignoring that finding and deciding the matter afresh in a different way, the court committed an error liable to correction under S. 115 of the Code. If the transaction is a lease, as the court below is bound to hold so long as the finding stands, it can scarcely be disputed that the suits (in so far as they ask for possession) have to be stayed under S. 5 of Act 7 of 1963.
(2.)IT is said that the finding was vacated by this court in Civil Revision Petition 418 and 419 of 1958 filed against it. I do not think so. What this court did was to dismiss those petitions as infructuous, but, in doing so, it observed that "nothing said in the order impugned in these civil Revision Petitions will prejudice the parties in fresh proceedings to be had in the light of Act 4 of 1961. " I do not think that this means that the finding was vacated and the matter left open. If that were so one would expect some reasons to be given for vacating the finding and the petitions would have been allowed instead of being dismissed. What the observation really means is that, irrespective of the finding already entered, the suits would have to be decided under the provisions of Act 4 of 1961. Even if the observation is to be construed as vacating the finding in so far as "fresh proceedings to be had in the light of Act 4 of 1981" are concerned and that is the utmost that can he said the present proceedings are not proceedings under that Act.
I allow the petitions and direct that the suits, in so far as they relate to the relief of possession, be stayed under S. 5 of Act 7 of 1963. Since the petitioner is succeeding on a point not taken by him in the court below, and not pointedly taken in the present form in the memoranda of revision, he will pay the respondent costs of Rs. 50/- in each petition.
I wish to make it clear that, in so far as reliefs other than the relief of possession are concerned, and which reliefs could have been claimed by way of separate suit, there will be no stay. Allowed.
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