KAJARIA CO P LTD Vs. VIMALA BAI
HIGH COURT OF KERALA
KAJARIA CO. (P) LTD.
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(1.) The joint trial of this suit for eviction before the Munsiff's Court with the two applications under S.5 and 11 respectively of Kerala Act 16 of 1959 before the Rent Control Court, both courts presided over by the same person the applications were actually made under the provisions of the Travancore-Cochin (Lease and Rent Control) Order, 1950 which was repealed by Act 16 of 1959 but by reason of S.33 of the Act must be deemed to have been made under the corresponding provisions of the Act was with the consent of the appellant defendant and he cannot be heard to complain against it. I do not think that any question of jurisdiction is involved. When the same person combines in himself two offices, the simultaneous exercise of both jurisdictions is permissible unless it is prohibited, and such an exercise cannot mean that he has validly exercised neither. The suit was tried by the Munsiff in his capacity as such, and the mere fact that along with the suit he tried the two applications in his capacity as the Rent Control Court does not deprive him of his capacity or his jurisdiction as a Munsiff. So long as the law, both substantive and procedural, governing the different matters is followed I do not think a joint trial involving the concurrent exercise of both jurisdictions is illegal, and the worst that can be said is that, in the absence of the consent of the parties, a joint trial would be undesirable, perhaps improper. And no more was said in Kunjali Hassan Kurup v. Abdul Hassan Sait 1963 KLT 407 where it would appear there was no consent. That decision does not say that a joint trial in any way affects jurisdiction.
(2.) The only other objection taken on behalf of the appellant is that, in the face of S.11(1) of Act 16 of 1959, the lower appellate court ought not to have passed a decree for eviction. But that court has passed such a decree only in name, for, it has added the rider that eviction can be only in accordance with and subject to the provisions of Act 16 of 1959. There is therefore no substance in the complaint that the decision is opposed to the provisions of the Act. Moreover, I do not think S.11(1) of the Act ousts the jurisdiction of a civil court to pass a decree for eviction. All that the sub-section says is that, notwithstanding such a decree, actual eviction can be effected only in accordance with the provisions of the Act. Certainly that does not mean that such a decree cannot be made. Nor would that be the necessary implication of the second proviso to the sub-section which says that in certain circumstances, a civil court may pass a decree for eviction on the grounds mentioned in the section. That provides for a civil court effecting eviction in accordance with the provisions of the Act and the decree contemplated thereunder is a decree under the provisions of the Act to which the prohibition against eviction in execution in sub-section (1) does not apply. That does not mean that a civil court may not make an ordinary decree for eviction, which, not being made under the provisions of the Act, would attract the prohibition in sub-section (1). In this connection reference may be made to Punnen v. Vasudeva Kurup 1955 KLT 924 and Thressia v. Ayppunni 1958 KLT 1017 where the same view has been taken with regard to the similar provision in Clause.9(1) of the Travancore-Cochin Buildings Lease and Rent Control) Order, 1950. The observation in Achuthan v. Rent Controller, Trichur 1955 KLT 818 at p. 820 to the effect that it is only if the Rent Controller records a finding under the second proviso to Clause.9(1) of the Order (which is similar to the second proviso to S.11(1) of Act 16 of 1959) that the landlord will be entitled to sue for eviction in a civil court cannot be regarded as good law in the face of the full bench decision in Punnen v. Vasudeva Kurup 1955 KLT 924.
(3.) I dismiss this appeal with costs.;
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