Decided on October 18,1963



- (1.)For reasons I have set out in my orders in C. R. P. No. 192 of 1963 and in C. R. P. Nos. 290 and 291 of 1963, I do not as a rule, entertain revisions under S.115 of the Code against orders allowing or declining a stay under provisions like S.4 of Act 1 of 1957, or, as in the present case, under S.5 of Act 7 of 1963. To put the matter briefly there must be a case decided before S.115 of the Code can be invoked. And the only case so far decided in the present case is that the suit is not liable to be stayed under S.5 of Act 7 of 1963. In so deciding the court below exercised a jurisdiction which the law required it to exercise, and, even if its decision be wrong, it cannot be said that it acted illegally or irregularly in the exercise of its jurisdiction. If its decision be wrong and it proceeds to try and decide the suit, the case decided without jurisdiction would be the suit and not the present interlocutory application for a stay which it has dismissed. Therefore, in my view, no revision lies against that dismissal.
(2.)It might be said that in a case where the court has wrongly stayed the suit it has failed to exercise the jurisdiction to try the suit vested in it by law. But the Act is after all, a temporary statute and it is rarely, if ever, that a mistaken stay can cause injustice so as to persuade this court to exercise its discretionary power under S.115 of the Code.
(3.)Whether a transaction is a kanam or a kanom kuzhikanam or otherwise conforms to the transactions implied in S.3 (26) of the Act, and whether, for that reason, a person holding under it is a tenant within the meaning of the Act, is rarely a matter to be decided on a mere study of the document embodying the transaction. It is a mixed question of fact and law, which, especially in view of S.10 of the Act which gets rid of the restriction in S.91 of the Evidence Act, will have to be decided on the evidence furnished not merely by the document and by the surrounding circumstances but on other evidence as well, even evidence contrary to the terms of the document. The usual practice seems to be to decide the matter, as has been done in the present case, on an interlocutory application without calling for any evidence apart from the document itself. It therefore seems to me particularly dangerous for this court to make a pronouncement, one way or the other, on material which is insufficient, and thus provide a decision which, though not res judicata, would be binding as a precedent in the trial of the suit even after the contemplated legislation, to which Act 7 of 1963 is but a prelude, has conferred in respect of the several transactions defined in the Act (and which definitions will be, by and large, adopted by the contemplated legislation) certain benefits of a permanent character on one party with corresponding disadvantages to the other.

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