MOHAMMED ALI Vs. SUBRAMONIA PILLAI
HIGH COURT OF KERALA
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(1.) This Second Appeal arises from an order in execution of a decree for recovery of possession of a plot of land and buildings from the defendant lessee. He objected to recovery of possession on two ground viz., that the decree holder had to obtain an order for eviction from the Rent Controller before seeking recovery of possession and that he was not liable to be evicted in view of the provisions of the Holdings (Stay of Execution Proceedings) Act VIII of 1950. The first ground of objection does not appear to have been pressed in the court of first instance. The defendants objections were overruled and the decree holder was allowed to recover possession. On appeal by the judgment debtor, the order of the learned Munsiff was confirmed and he has preferred this Second Appeal from the concurrent decisions against him.
(2.) The objection under the Rent Control Order not having been pressed in the first court, the only point arising for decision is whether Act VIII of 1950 applies to this case. S.4 of the Act provides as follows:-
Notwithstanding any law to the contrary, proceedings in execution of a decree in a suit for the recovery of possession of a holding shall, so far as they relate to the delivery of possession of the holding, be stayed for a period of one year from the date of commencement of this Act:
Provided that nothing contained in this section shall preclude the Court -
(a) from ordering the delivery of possession of the holding to the decree holder if the court is satisfied either that the lessee has committed intentional and wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of this Act; or
(b) from granting any other appropriate relief to which the decree holder may be entitled.
(3.) S. 2 defines the term holding and S.(3) enumerates leases to which the Act does not apply. Lands or buildings or both given on lease for industrial or commercial purposes fall in the category of cases excluded from the operation of the Act. It is the case of both sides that the property in question was given on lease for carrying on a trade in bamboos. Learned counsel for the appellant contended that the word Commercial in S.3, Clause.(d) should be given the more restricted interpretation given in Judicial Dictionaries i.e., dealings with foreign Nations or States. According to Strouds Judicial dictionary Commerce is:-
Traffic, trade, or merchandize in buying and selling of goods. There is a distinction between commerce and trade; the former relate to our dealings with foreign nations or our colonies, etc., abroad - the other to our mutual traffic and dealings among ourselves at home (Jacob; People v. Fisher, 14 Wend. 15; see also Merchant). But this distinction may be questioned.
Whartons Law Lexicon defines the terms as:-
The intercourse of nations in each others procedure and manufactures, in which the superfluities of one are given for those of another, and then re-exchanged with other nations for mutual wants. Commerce relates to our dealings with foreign nations, colonies, etc., trade, to mutual dealings at home.;
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