Sundaran, A. vs Mohammed Koya, P.V.

K.T. Thomas, J.—In a rent control proceeding initiated by a landlord for eviction of his tenant u/s 11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 the tenant raised a contention, inter alia, that he is entitled to the protection envisaged in Section 106 of the Kerala Land Reforms Act (for short the K.L.R. Act''). He then pressed that the question be referred to the Land Tribunal u/s 125(3) of the K.L.R. Act for decision. But Rent Control Court declined to do so on the premise that the said contention of the tenant is not bona-fide. Thereupon, he went in appeal, but the Appellate Authority concurred with the Rent Control Court and dismissed the appeal. Now the tenant has come up with this revision.

It has been held by a Division Bench of this Court that the question whether the tenant is entitled to the right u/s 106 of the K.L.R. Act is also one which should be determined by the Land Tribunal and hence the said question would fall within the ambit of Section 125(3) of the K.L.R. Act vide Ramadas v. Krishnan Nair 1984 KLT 371. The correctness of the said decision has not been canvassed before us. The line of thinking adopted by the Rent Control Court and the Appellate Authority is that unless the claim is bona fide the question would not really "arise" for consideration in rent control proceedings and as such there is no need to make a reference of the question to the Land Tribunal.

u/s 125(3) of the K.L.R. Act if in any suit or other proceedings any question regarding the rights of the tenant, including a question as to whether a person is a tenant "arises" then the Civil Court does not have jurisdiction to determine that question. It is now well nigh settled that unless the question legally arises, there is no obligation for the Civil Court to make a reference of it. It was so held first by Bhaskaran, J. (as he then was) in George v. Chakkunni 1977 KLT 865. A larger Full Bench of this Court has affirmed the said legal position in Kesava Bhat v. Subraya Bhat 1979 KLT 766. Recently another Full Bench has followed the same principle in Muhammad Haji v. Kunhunni Nair 1993 (1) KLT 227.

But merely because a person raised a claim without any bona fides, can it be said that the said question would arise in the case. If the motive of the party-who raised the plea is only to procrastinate the proceedings it is the duty of the Civil Court to decide first whether the question genuinely arises in the case. The amplitude of the expression "arises" must be constricted to what genuinely arises in a case in view of the very unsatisfactory function of the present Land Tribunal System in Kerala. A study of the statistics (concerning references made to Land Tribunals in Kerala) etches a lamentable picture of the fate of large number of such references. Mention of a few instances is sufficient to highlight the dimension of the malfunctioning of Land Tribunal System in Kerala, e.g:- Principal Munsiff''s Court, Palakkad made a reference to the Land Tribunal, Palakkad on 7th September 1974. Principal Munsiff, Kollam had referred a case to the Land Tribunal on 1st February 1977; Principal Munsiff, Alappuzha has referred a question to the Land Tribunal on 19th November 1974 and the Munsiff of Mavelikkara referred a similar question on 21st March 1975. From the High Court Registry we learnt that those references still remain unanswered by the Land Tribunals concerned. Those are the extreme cases and the less serious instances are far too many. Adding fuel to fire, missing of vital records despatched along with references made to the Land Tribunals is a frequent occurrence in Land Tribunals. When the subordinate Courts bring such instances to the notice of the High Court no improvement could be achieved in the system due to the dormancy of the Land Tribunal System here.

One of us has expressed concern over the woeful lack of efficiency in the functioning of the Land Tribunals in a decision reported in Ambu v. Vellachi and Ors. ILR 1994 Ker 460. The following observations were made in the judgment:

At a time when the functioning of Land Tribunals is in dormant stage without adequate infrastructure provided, Courts should consider whether a reference to the Land Tribunal is inevitable on the facts. Only if reference is found to be indispensable that the Court need to resort to that course. Very often such reference, in these days (as the experience shows) amounts to consignment of suit records to cold storage, if not to unreclaimable range. Unfortunately the system of reference u/s 125(3) of the Act has now become a haven for contumacious litigants and indulgers in dilatory tactics. Many a times the High Court has sounded to the Government to consider the desirability of retaining the system further.

In the light of the above situation, the Courts have to give a useful and practical interpretation to lessen the abuse of the legal requirement envisaged in Section 125(3) of the K.L.R. Act. The Civil Court can consider whether the plea raised by the Defendant or the Respondent in the case is bona fide or genuine. If there is no reasonable prospect of the plea being upheld by a Land Tribunal, the Civil Court can justifiably take the view that the question does not reasonably arise in the case. If the question does not reasonably arise in the case, the Civil Court need not make the reference u/s 125(3) of the K.L.R. Act.

We may again request the Government to consider whether suitable amendments can be made on Section 125 of the K.L.R. Act in the light of the present position resulting from the implementation of such a system.

In the present case the Courts below have concurrently held that the plea based on Section 106 of the K.L.R. Act is not bona fide. So the prayer for reference to the Land Tribunal was declined. We have no reason to interfere with the said stand. Accordingly, we dismiss this revision in limine.

Registrar shall forward a copy of this order to the Chief Secretary and Law Secretary of Kerala.