Decided on January 24,1967



- (1.) The second appeal is by the plaintiffs, whose suit for injunction has been dismissed by both the lower courts on the ground that S.32 of Kerala Act I of 1964 is a bar to the suit. The respondents (the defendants) filed an application before a Land Tribunal for fixing the fair rent of the suit properties; and they took objection in the suit that under S.32 the pendency of that proceeding was a bar to the suit. This objection has been upheld.
(2.) I do not think that the lower courts are right in their conclusion. S.32 says that during the pendency of an application for determination of fair rent before a Land Tribunal, no court shall entertain any suit for eviction of the applicant from the holding to which the application relates, or pass any order of injunction prohibiting him from entering the holding or pass any order staying the proceedings before the Land Tribunal. If a person trespasses upon land belonging to another and also files an application for fixation of fair rent before a Land Tribunal, it will be too much to hold that a suit for injunction in such circumstances will be hit by S.32. The question whether there is a holding and the question whether the relationship between the parties is that of landlord and tenant have to be decided by the civil court; and merely because a proceeding for fixation of fair rent is pending before a Land Tribunal, such a suit for injunction cannot be held to be incompetent. In other words, to such a suit S.32 is no bar. This is clear from the wording of S.32 itself: in addition, there are two decisions of this Court to the same effect in Kurian v. Chacko ( 1965 KLT 468 ) and in Smt. K. Saraswathi Kunjamma v. The State of Kerala (O. P. No. 3163 of 1964). Therefore, the lower courts are not right in refusing to try the suit on merits. The suit is maintainable; and the lower courts should have tried it on merits.
(3.) The counsel of the respondents then points out that, at any rate, the Land Tribunal has now passed an order in favour of the respondents on the question whether there was relationship of landlord and tenant between the parties and on that basis the Land Tribunal has also fixed the fair rent. The counsel argues on the basis of this that the said order will be a bar to further continuing the suit, even though the pendency of the proceeding before the Land Tribunal might not by itself be a bar (vide S.125 of the Act). I do not propose to go into the correctness of this contention and pronounce any opinion on the question. Since the suit has to go to the Trial Court for trial on merits, the respondents may raise this objection as well before that court (the objection regarding the effect of the order passed by the Land Tribunal).;

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