1. By s. 35 of the kerala land reforms (amendment) act, 1972 (act 17 of 1972) sub - section (8) was introduced into s. 125 of the kerala land reforms act, 1963. That sub - section is to the effect that in s. 125 "civil court" shall include a rent control court as defined in the kerala buildings (lease and rent control) act, 1965. Under s. 2 (5) of the kerala buildings (lease and rent control) act, 1965, " rent control court " means a court constituted under s. 3 of that act. S. 3 of that act enables the government to appoint a person who is or is qualified to be appointed, A munsiff to be the rent control court for such local area as may be specified therein, By issuing notification in the gazettes in that behalf. The result of the aforesaid amendment in s. 125 of the land reforms act, 1963 is that from and after the introduction of sub - section (8) therein the words "civil court" has to be understood as including a rent control court. The question that arises for consideration in this writ petition is as to whether the munsiff who was constituted the rent control court, The 2nd respondent herein, Is correct in holding that a rent control petition instituted in 1971 in bis court is not liable to be stayed under s 125 (3) of the land reforms act, 1963, For the reason that the said rent control petition was filed previous to the introduction of sub - section (8) in s. 125 of the kerala land reforms act, 1963. Ext. P2 is the copy of that order whereby the 2nd respondent munsiff as aforesaid held that the rent control petition instituted in 1971 is not liable to be stayed for the reason that it was instituted in 1971 before the enactment, Act 17 of 1972, Came into force.

2. S. 125 (3) of the kerala land reforms act, 1963, Hereinafter referred to as the act, Reads:

"if in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, The civil court shall stay the suit or other proceeding and refer such question to the land tribunal having jurisdiction over the area in which the land or part thereof is situate together with relevant records for the decision of that question only."

from and after act 17 of 1972 came into force, But for any other provision and on a plain reading sub - section (3) extracted above, The rent control court will have to stay any proceeding before that court if in such proceeding any question regarding the rights of a kudikidappukaran arises, And will have to refer that question to the land tribunal having jurisdiction over the area in which the land or part thereof; i. E., 'the kudikidappu' as defined in s. 2 (25) of the act, Is situate. It is contended on behalf of the landlord that in so far as sub - s. (8) came into force only in 1972 the provision in sub - s. (3) shall not be attracted to rent control petitions instituted prior to 1972. On a literal reading of sub - section (3) of s. 125 of the act it is not possible to accede to the aforesaid contention. That sub - section means that if in any suit or other proceeding, Irrespective of when it was instituted, Any question regarding the rights of a tenant or of a kudikidappukaran - including the question as to whether a person is a tenant or a kudikidappukaranarises, The civil court (which as per sub - section (8) would from and after 1972 include a rent control court also) shall stay the suit or other proceeding and refer the said question to the land tribunal having jurisdiction over the area in which the land or part thereof is situate. The time with reference to which the bar imposed by sub - section (3) arises and the "civil court" is obliged to make the reference is, Going by the grammatical meaning of sub - section (3), Not the time of the institution of the suit or proceeding, But the time when the question referred to in that sub - section arises. So understood and as earlier pointed out without reference to any other provision in s. 125, Whenever any question arises before a rent control court after 1972 when sub - section (8) was introduced into s. 125, Under sub - section (3) the proceedings will have to be stayed by the rent court court and the question referred to the concerned land tribunal.

3. It is also necessary to read s. 125 (1) of the act. That sub - section reads:

"no civil court shall have jurisdiction to settle, Decide or deal with any question or to determine any matter which is by or under this act required to the settled, Decided or dealt with or to be determined by the land tribunal or the appellate authority or the land board or the taluk land board or the government or an officer of the government.

provided that nothing contained in this sub - section shall apply to proceedings pending is any court at the commencement of the kerala land reforms [amendment], Act, 1969. "

this sub - section has reference to sub section (3) for, Sub - section (1) casts an absolute bar on civil courts including the rent control courts after the introduction of sub - section (8) in s. 125, To settle, Decide or deal with any question or to determine any matter which is by or under the act required to be settled, Decided or dealt with or to be determined by the land tribunal it is subsection (3) that requires the proceeding to be stayed and certain questions mentioned therein to be referred to the concerned land tribunal for decision. But for the proviso to sub - section (1) of s. 125, In the view that i have taken as regards sub - section (3) as aforesaid in the preceding paragraph, From and after 1972 when sub - section (8) was introduced whereby rent control courts also came within the ambit of s. 125 of the act, There is an absolute bar on the rent control court to decide the question as to whether a person is a kudikidappukaran or not if such a contention is raised before that court after 1972, That is to say, After the introduction of sub - section (8) in s. 125 of the act. However, The proviso says that nothing contained in sub - section (1) shall apply to proceedings pending in any court at the commencement of the kerala land reforms (amendment) act, 1969. This means that the absolute prohibition contained in the body of s. 125 (1) is only as regards settlement decision or dealing with any question or determination of any matter which is by or under the act required to be settled, Decided or dealt with or to be determined by the land tribunal or the appellate authority or the land board or the taluk land board, Or the government or an officer of the government, Which question or matter has arisen in proceedings not pending in any court at the commencement of the kerala land reforms (amendment) act, 1969, That is to say on 1 - 1 - 1970. So far as those proceedings pending on 1 - 1 - 1970 are concerned, They are outside the ambit of s. 125 (1) of the act by reason of the proviso thereto. Such proceedings alone have been exempted or excepted from the purview of sub - section (1) of s. 125 of the act.

4. Overruling the full bench decision of this court in ananthanarayana iyer v. Paran (1976 klt. 405 the supreme court construing s. 125 (1) and 125 (3) of the act said in eapen chacko v. Provident investment co (1977 klt. 1) as follows:

"matters which will be within the mischief of s 125 (1) of the act are matters which will arise in suits or proceedings initiated and originated after the commencement of the act. It is unsound to suggest that pending proceedings which are excepted from the application of s. 125 [1] of the act will yet fall within s 125 [1] of the act by reference to s. 125 [3] of the act."

earlier the supreme court said in the aforesaid decision as follows.

"s. 125 [1] of the act created a bar against civil court to settle, Decide or deal with the questions required to be settled by the land board in accordance with the provisions of the act. The provisions contained in s. 125 [1] of the act are prospective. S. 125 came into effect on 1st january 1970, When the other amendments introduced by the 1969 amendment act came into force. The proviso to s. 125 [1] of the act expressly states that s. 125 [1] of the act shall not apply to proceedings pending in any court at the commencement of the amendment act of 1969 on 1st january 1970. The effect of the proviso is to carve out by way of exception what would otherwise have fallen within the provision to which it is a proviso."

5. Understood in the light of the construction placed in sub - sections (1) and (3) of s. 125 of the act by the supreme court, It is necessary to import the proviso to s. 125 (1) also to s. 125 (3). Therefore, Sub - section (3) would not be attracted to matters falling within the ambit of the proviso to sub - section (1) of s. 125. It is not possible to extend the exception any further. It should be remembered that i am in this case concerned with the construction of a statutory provision and it is not possible to accept the contention on behalf of the 1st respondent that since the effect of the proviso to s. 125 (1) is to take out proceedings pending on 1 - 1 - 1970, The date of commencement of the kerala land reforms (amendment) act, 1969, Outside the purview of both sub sections (1) and (3) of s. 125, (and applying that analogy) proceedings pending in rent control courts when act 17 of 1972 came into force should also, Be taken outside the ambit of the aforesaid provisions - the aforesaid act came into force on 2 - 11 - 1972. The submission advanced on behalf of the 1st respondent landlord is that since sub - section (8) came into force only on 2 - 11 - 1972 and as on that date the rent control petition in question was pending, That proceeding would be outside the ambit of sub - sections (1) and (3) of s. 125. As stated earlier it is not possible to accept the contention as aforesaid; it appears to me that the only exception to s. 125 (1) and (3) is the exception contained in the proviso to s. 125 (1) of the act.

6. The rent control proceedings in question do not fall within the ambit of the proviso to s 125 (1) of the act in so far as the same was instituted only in 1971 after the kerala land reforms (amendment) act, 1969 came into force on 1 - 1 - 1970. The question required to be decided by sub - section (3) of s. 125 though no doubt arose by the institution of the rent control proceedings, Still remained undecided and undetermined when sub - section (8) was introduced in s. 125 of the act. The result is, That is a question which would come within sub - section (3) of s. 125 of the act as also within the body of s. 125 (1) of the act. In other words, There is an absolute prohibition so fas as the rent control court is concerned to decide the question raised in so far as that question is one which would come within the ambit of s. 125 (3) of the act.

7. It is contended that the proviso to s. 125 (1) does not mention about "civil court" but only a "court". It is necessary in the context in which it is used to understand that word - 'court' - as a court made mention of in the body of s. 125 (1) which speaks not of any 'court' but of a 'civil court'. The proviso has to be understood as aforesaid because the proviso has reference to the body of the sub - section and in the language employed by the supreme court it "carves out by way of exception" certain matters in respect of which the body of subsection (1) puts an embargo, And that an absolute embargo; if the word "court" has no reference to the words" civil court" in the body of the section, The proviso would be meaningless and otiose.

8. In view of what is stated above the petitioner is entitled to succeed. I quash ext. P2 order. I direct the 2nd respondent rent control court to consider ext. P1 application afresh in the light of what is stated above and pass appropriate orders. In the circumstances of the case there will be no order as to costs.