IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 31297 of 2000(A)
1. HARRISONS MALAYALAM LTD
... Petitioner
Vs
1. V.M.MEERA
... Respondent
For Petitioner :SRI.C.N.RAMACHANDRAN NAIR
For Respondent :SRI.KALEESWARAM RAJ
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :17/09/2007
O R D E R
THOTTATHIL B.RADHAKRISHNAN,J
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O.P.No.31297 of 2000
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Dated this the 17th day of September, 2007
JUDGMENT
The petitioner is the first defendant in a suit for recovery
of possession. On contest being raised claiming the benefits of
the provisions of the Kerala Land Reforms Act 1953, the trial
court referred to the question of tenancy to the Land Tribunal.
That resulted in findings by the Land Tribunal, which were
incorporated in Ext.P1 judgment in the suit. In the first appeal,
the lower appellate court issued Ext.P2 order of remand setting
aside the decree of the trial court and directing fresh disposal of
the suit according to law, untrammeled by any of the
observations in Ext.P2 judgment. However, there was a clear
direction in the penultimate para of that order of remand that
the question of tenancy need not be referred again to the Land
Tribunal and the trial court was to decide all the issues. This
Court refused to interfere with Ext.P2 order of remand while it
dismissed Ext.P3 appeal, against it, as per Ext.P4 judgment.
The petitioner/first defendant filed S.L.P.(C).No.15383/1997
O.P.No.31297/2000 :2:
against Ext.P4 judgment of this Court. Leave appeal was refused
by the Apex Court.
2. This writ petition is filed thereafter on the premise
that it was not urged by the petitioner before this Court or
before the Apex Court that the directions contained in Ext.P2
order of remand directing that the issue of tenancy be dealt with
by the trial court itself without making an order of reference to
the Land Tribunal is without jurisdiction in terms of Section 125
(3) of the KLR Act. This writ petition is filed by contending that
directions contained in Ext.P2 order of remand authorising the
trial court to decide the issue of tenancy without reference to
the Land Tribunal is wholly without jurisdiction and such lack of
jurisdiction is not only one that goes to the root of the matter,
but that which contradicts the expressed embargo in Section 123
(3) of the KLR Act and therefore, void and inoperative. It is
contended that the earlier judgment of this Court in the appeal
and the decision of the Apex Court refusing leave to appeal do
not preclude the petitioner from raising that contention in this
writ petition.
O.P.No.31297/2000 :3:
3. Learned counsel for the plaintiff argues that this is an
instance of abuse of the process of court and there is no lack of
jurisdiction for the appellate court in terms of Section 125(3) of
the KLR Act, while making an order of remand. It is further
contended that the issue raised are concluded by the judgment
of this Court and the order of the Apex Court refusing to grant
special leave to appeal.
4. It needs not much of labour to recall the string of
decisions of this Court and that of the Apex court to conclude
that the inhibition imposed by Sub Section 3 of Section 125 of
KLR Act on the trial court is absolute. The decision of this Court
in Parameswaran Thampi v. Bodiyan Thomas (1984 KLT
397) is referred. It has been partly interfered with the Apex
Court in Mathevan Padmanabhan v. Parameswaran Thampi
(1995 Supp(1) SCC 479) which was rendered taking the view
that the trial court, subsequent to a binding remand order which
directs a fresh enquiry, is not tied down by Section 125(3) of the
KLR Act. The said decision of the Division Bench of this Court
was referred to in Chathu Nair v. Chirutheyi Amma (1985
KLT 164) by the Division Bench stating that:
O.P.No.31297/2000 :4:
“We do not understand the observations of the Division
Bench in 1984 KLT. 397 as one laying down a proposition that it
shall not be open to the trial court to refer the disputed question
of tenancy again under Section 125(3) of the Kerala Land
Reforms Act, once, on a reference under that sub-section, that
Tribunal had given a decision on that question, but on appeal,
the appellate court has set aside the judgment based on the
decision of the Land Tribunal, directing a fresh disposal
according to law. ( Allowing the parties to amend the pleadings
and to adduce fresh evidence in support of the disputed tenancy
in this case). Assuming that it might not be necessary to refer
the question of tenancy to the Tribunal again, after the remand,
there could be no bar against such reference being made after
the remand in accordance with the true spirit of the provisions
of Section. 125 of the Act.”
5. An analysis of the aforesaid judgment would show that
an order of remand does not specifically compel the trial court
to consider the issue of tenancy by itself. It is for the trial court
to decide as to whether the reference is to be made and the
trial court has the statutory obligation under Section 125(3) of
the KLR Act to make such reference. But this embargo on the
trial court under Section 125(3) of KLR Act would not come into
play on the face of any positive directions by the superior court
O.P.No.31297/2000 :5:
which passes an order of remand in exercise of authority under
Section 96 or under Section 100 of Code of Civil Procedure read
with Order 41 Rule 23 thereof. This is because while the
remanding court issues such directions, those directions get its
authority trickling down from Sections 96 and 100 of the Code
of Civil Procedure, as the case may be, while the embargo under
Section 125(3) of the KLR Act is confined to the trial court and
such embargo does not visit the jurisdiction of this superior
appellate courts. So much so, the appellate court would be
competent to issue a direction to the trial court to decide a
question of tenancy by itself, without making a reference under
Section 125(3) of the KLR Act and if such direction is specific,
the trial court is bound to obey the command in the remand
order and would not be tied down by Section 125(3) on the face
of the directions of the superior court.
6. In the case in hand, as already noticed, there is a
categoric direction in the penultimate paragraph of Ext.P2 order
of remand that the trial court need not refer the question of
tenancy of Land Tribunal and that the said issue shall be
decided by the trial court itself. That command is with authority
O.P.No.31297/2000 :6:
and is finally on the trial court de-hors Section 125(3) of the KLR
Act.
7. Apart from the aforesaid, it has to be noticed that the
illegality, impropriety and irregularity of Ext.P2 order of remand
could have been dealt with by this Court in the C.M. Appeal.
Under the provisions of Section 11 of the Code of Civil
Procedure, the public policy inbuilt in the concept of res-
judicata, to prevent successive scouting of the courts and the
quality and responsibility of the jurisdiction under Section 104
read with Section 100 of the Code of Civil Procedure and the
spread of Article 227 of Constitution would advice that a person
challenging an order of remand ought to raise all contentions in
opposition to the order of remand or otherwise face
conclusiveness of the order of remand. The principles of “might
and ought to” contained in explanation 4 to Section 11 of the
Code of Civil Procedure applies. Ext.P2 order of remand, having
been confirmed by this Court, and the petitioner/first defendant
having been unsuccessful before the Apex Court, with this
application for special leave to appeal against that judgment of
this Court, the irregularity, impropriety and illegality of the
O.P.No.31297/2000 :7:
direction of the lower Appellate Court to the trial court to decide
the issue of tenancy by itself cannot be raised in this writ
petition.
For the forgoing reasons, this writ petition is dismissed.
There will be a direction to the trial court to expedite the final
disposal of the suit and to make every endeavor to give it top
priority for consideration and disposal in accordance with law.
THOTTATHIL B.RADHAKRISHNAN, JUDGE
dvs