1. His revision petition arises out of proceedings for eviction under the kerala buildings (lease and rent control) act. It was originally filed as a writ petition" (o. P. No. 2761/1967) but in view of the decision of a full bench of this court in vareed v. Mary (1968 k. L. T. 583) that a further revision under s. 115 of the c. P. C. Is not precluded against the order of the district judge as revisional authority under s. 20 of the act, It was converted into this revision petition. It was then referred to a division bench and has come on before us,

2. He tenant who has been concurrently found to be liable to be evicted from two shop rooms in broadway, Ernakulam, By the rent control court, The appellate authority, And the revisional authority, Is the petitioner before us. The respondent before us purchased the landlord's rights under a registered document dated 29 - 9 - 1962 and filed a petition for eviction on 21 - 11 - 1962. Several grounds were urged for eviction, Which, It is unnecessary to detail. The rent control court found that rent was in arrear, And that the landlord required the building bona fide for his own occupation and ordered eviction on these grounds, And found against the other grounds urged. Before the appellate authority the respondent did not dispute the fact that arrears of rent were deposited by the tenant, And the question of arrears was therefore not debated. The only ground thus urged to sustain the eviction before the appellate and revisional authorities, And before us, Was that the landlord required the building bona fide for his own use.

3. It was common ground that the act applicable to the proceedings in question is the kerala buildings (lease and rent control) act 2/1965, (referred to as the act) although the petition for eviction was instituted under the earlier act of 1959. The relevant provisions of the two acts are pari materia. S. 11 of the act in so far as it is material reads:

11. Eviction of tenants (1) notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, Whether in execution of a decree or otherwise, Except in accordance with the provisions of this act:

(2) x x x x x

(3) landlord may apply to the rent control court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him;

provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument. "

although the objection that the landlord, As a transferee under a document inter vivos, Was not entitled to apply for eviction within one year of the date of the assignment was not expressly raised in the written objection of the present petitioner, The point was argued and considered by all the three authorities. The objection was overruled, In all, For two reasons which can be gathered from a reading of the three different orders of the authorities below. One ground was that the objection not having been raised in time must be deemed to have been waived. (apparently this has reference to the objection having been raised only at the time of the arguments, Shortly prior to the order of the rent control court, Which was on 21st october 1966). The second ground was that, As, By the time orders were passed on the petition for eviction the period of one year mentioned by the proviso had expired, The embargo created by the said proviso ceased to be effective. The correctness of this view has been challenged before us.

4. On the terms of the relevant proviso to s. 11 (3) extracted above, It seems to place an absolute bar against the filing of an application for eviction on the ground of the landlord's bona fide requirement. It is only after the expiry of a period of one year from the date of the transfer inter vivos that the transferee landlord, Gets the right to file, And the rent control court, The jurisdiction to entertain, An application for eviction. The expression "be entitled to apply" occurs also in clause (9) of s. 11 of the act, Which enacts:

11 (9) where the tenancy is for a specified period agreed upon between the landlord and the tenant, The landlord shall not be entitled to apply to the rent control court before the expiry of such period. "

the embargo here again, Is against the making of an application itself.

5. The legislative policy and object of the section, In so far as we are able to discern, Only confirms this impression. A similar provision in s. 14 (6) of the delhi rent control act fell for consideration before the supreme court in v. N. Sarin v. Ajit kumar poplai (air. 1966 s. C. 432). It was observed by the supreme court:

"8. That takes us to s. 14 (6). It provides that where a landlord has acquired any premises by transfer, No application for the recovery of possession of such premises shall lie under sub - section (1) on the ground specified in clause (e) of the proviso thereto, - [bona fide requirement for own use] - unless a period of five years has elapsed from the date of the acquisition. It is obvious that if this clause applies to the claim made by respondent no. I for evicting the appellant, His application would be barred, Because a period of five years had not elapsed from the date of the acquisition when the present application was made.

(9) before construing s. 14 (6), It may be permissible to enquire what may be the policy underlying the section and the object intended to be achieved by it. It seems plain that the object which this provision is intended to achieve is to prevent transfers by landlords as a device to enable the purchasers to evict the tenants, From the premises let out to them. If a landlord was unable to make out a case for evicting his tenant under s. 14 (1) (e) it was not unlikely that he may think of transferring the premises to a purchaser who would be able to make out such a case on his own behalf; and the legislature thought that if such a course was allowed to be adopted, It would defeat the purpose of s. 14 (1). In other words, Where the right to evict a tenant could not be claimed by a landlord under s. 14 (1) (e) the legislature thought that the landlord should not be permitted to create such a right by adopting the device of transferring the premises to a purchaser who may be able to prove his own individual case under s. 14 (1) (e). It is possible that this provision may, In some cases, Work hardship, Because if a transfer is made by a landlord who could have proved his case under s. 14 (1) (e), The transferee would be precluded from making a claim for the eviction of the tenant within five years, Even though be, In his turn, Would also have proved his case under s. 14 (1) (e). Apparently, The legislature thought that the possible mischief which may be caused to the tenants by transfers made by landlords to circumvent the provisions of s. 14 (1) (e) required that an unqualified and absolute provision should be made as prescribed by s. 14 (6). That, In our opinion, Appears to be the object intended to be achieved by this provision and the policy underlying it. "

(underlining ours)

the above observations apply with equal force to the proviso to s. 11 (3) of the act with which we are concerned.

6. This conclusion of ours stands fortified when we take a look at the appropriate language used by the legislature when it intended to bar institution of the suits and proceedings, To bar the passing of decrees, Or proceedings by way of execution. For instance, Clause (8) of the madras non - residential buildings rent control order, 1942, Enacted thus:

" (1). A tenant in possession of a non - residential building shall not be evicted therefrom, Whether in execution of a decree or otherwise and whether before or after the termination of the tenancy, Except in accordance with the provisions of this clause.

(2) a landlord wishing to evict a tenant in possession shall apply to the controller for a direction in that behalf. "

there was some conflict of judicial opinion between two single judge rulings whether the clause merely barred eviction or dispossession, Or even the filing of an application for the purpose. Resolving the conflict, It was ruled in theruvath vittil muhammadunny v. Melepurakkal unniri and another (1949 (1) mlj. 452) that there is nothing in this clause or any other clause of the order expressly prohibiting the institution of a suit for possession or prohibiting a civil court from passing a decree for possession, Even though such a decree if passed, May not be capable of execution by a civil court. We may then refer to s. 213 of the indian succession act which provides that "no right as executor or legatee shall be established in any court of justice unless a court of competent jurisdiction in india has granted probate or letters of administration" etc. It is settled law that this provision does not bar the institution of a suit or proceeding, But only the passing of a decree or order on such suit or proceeding before obtaining probate or letters of administration. These statutory provisions may be compared with s. 80 of the cpc. Which provides that "no suit shall be instituted against the government etc. Until the expiration of two months

next after notice in writing". It has been ruled that the section is "express, Explicit and mandatory and admits of no limitation or exceptions", And a suit instituted before the expiry of two months from the delivery of the notice will have to be dismissed. See again, The language of s. 270 of the government of india act 1935, (which bars the institution of civil or criminal proceedings against a person in respect of any act done or purporting to be done in execution of his duties as a servant of the crown, Except with the consent of the specified authority) ; s. 69 of the partnership act; and s. 191 of the indian companies act 1913, Corresponding to s. 171 of act of 1956. In all these sections the statutory bar goes to the very institution of the suit or proceedings themselves, Without the necessary condition precedent having been satisfied.

7. But, We were told that the above view which seems to us to flow from the language of the relevant proviso to s. 11 (3) of the act, No less than from its legislative object and policy, Runs counter to certain judicial decisions. The first of these with which we were confronted, Is that of a single judge of this court in kathringa v. Lonappan & others (1969 klt. 334) rendered with respect to the identical provisions of the act. The proceedings for eviction were there instituted, As here, By an assignee from the landlord within one year of the date of the assignment, But the period of one year had as here, Expired before an order of eviction was passed. The learned judge held that there was ample power in the court to take note of subsequent events in determining the rights of parties, Especially if there was no manifest injustice resulting therefrom and such a course will only advance the cause of justice and prevent multiplicity of suits. We do not demur to the proposition that the court has power to take note of subsequent events. But where the defect against institution of proceedings is of a jurisdictional nature and such, We hold to be the effect of the relevant proviso to s. 11 (3) of the act subsequent events cannot cure the same. The attention of the learned judge who decided 1969 klt. 334 was not drawn to the analogous statutory provisions of the malabar tenancy act, And decisions rendered therein, Which appear to have a material bearing on the question, And to which we shall immediately refer. The decision of the learned judge itself was carried up in appeal (w. A. No. 225/69), Which was dismissed as incompetent under s. 5 of the high court act. We cannot accept the decision as a correct authority on the scope and interpretation of the relevant proviso to s. 11 (3) of the act.

8. Next, Our attention was drawn to the decision of a learned judge of this court in neelakandhayya pillai v. Sankaran (1961 klt. 755) rendered with respect to a parallel provision, Namely, S. 25 of the malabar tenancy act 1930 as amended by the madras act 7/1954. The provision in so far as is relevant reads:

"s 25. No suit for eviction of a kanamdar shall lie at the instance of his landlord except on the following grounds:

(1) (2) (3) (6)

(iii) no person whose right to evict arises under an instrument of transfer inter vivos shall be entitled to sue for eviction on the ground specified in'clause (4) or clause (5) until the expiry of two years from the date of the instrument.

(clauses 4 and 5 relate to eviction on the ground of bona fide requirement for landlord's use)

the section further provided that all suits, Appeals and other proceedings pending at the commencement of act 7/1954, Were, From and after such commencement, To be disposed of, In accordance with the provisions of the act as amended, The facts were, That the plaintiff was an assignee from the jenmi under a document dated 4 - 5 - 1945 and sued on 12 - 10 - 1945 for redemption of a kanom. (apparently on grounds which attracted either or both the clauses mentioned in the proviso extracted). The suit was decreed by the trial court on 17 11946, And the property was recovered in 1946 itself. The defendant appealed against the decree; and by the time the appeal came on for hearing, The madras act 7/1954 had come into force. The sub judge held that the proviso to s. 25 quoted above had application, And dismissed the suit. On second appeal, A learned judge of this court reversed the decision. The relevant passage is as follows:

"4. The provisions of s. 25 of the malabar tenancy act as amended by madras act vii//954, As indicated by the expression "no suit shall lie," "no tenant shall be evicted", "no person shall be entitled to sue" in that section, Are only prospective in application. There is nothing in the said s. 25 indicating a retroactive operation for any of the provisions therein. As the prohibition to the institution of the suit within two years of inter vivos assignment relates only to the institution of the suit, It cannot, Without an expression thereto, Be made to affect institutions already had. It is pertinent to note that the section does not provide for a dismissal or even stay of any suit already instituted. Most probably the natural effect of the provision in s. 25 quoted above may be to stay the trial of a suit already instituted before the commencement of the act for a period which comes within two years of the assignment of the landlord's rights in the plaintiff's favour. Anyhow, That question does not arise in the instant case as the assignment in this case was in 1945 and even the two years of bar to institute the suit had expired by 1947 long before the act itself came into being and long before the learned subordinate judge applied the provision to the disposal of this suit.

5. Even if the section is held to apply literally to the institution of the present suit, The defect of prematurity at the institution of this suit cannot entail its dismissal in 1954, The period of two years after the assignment in favour of the plaintiff having expired by 1947. The pendency of the suit after 1947 and the trial that the suit had since then cannot be found to be affected by any defect. The learned counsel for the respondent brought to my notice two rulings of the madras high court one in sankaran v. Andy (1954 - ii - mlj 581) and the other in kunhambn v. Yagnan nambudiri (1956 i mlj. 297). I do not feel persuaded with all respect to accept the view taken in those two decisions. "

we wish to offer three comments on the above decision. First, Having notice that s. 25 of the amending act 7/1954 made its provisions applicable to pending suits, Appeals, And other proceedings, The further observation of the learned judge that there is nothing in the section to indicate a retroactive operation, Is difficult to follow. The two madras decisions cited before the learned judge and referred to by him, (not to mention two others apparently not cited), Were directly in point on the question of the retrospective operation or the amendment to suits and appeals already instituted, And we cannot but regard the learned judge's summary dismissal of them with the remark that he did not feel persuaded to accept the view taken therein, As unfortunate. However, As we are not directly concerned with this aspect of the question, We say no more.

9. The second comment is on the learned judge's observations regarding the scope and effect of the 3rd proviso to s. 25 (6) of the malabar tenancy act. On that, A direct decision of a division bench of the madras high court (also an authority on the point of retrospective operation) was apparently not brought to the notice of the learned judge. The decision is thangammal (died) and another v. Narayanaswami iyer and another (1956 - 1 - mlj. 474). Govinda menon j. Who delivered the judgment of the bench expressed himself thus:

"now, In the present case though the suit was instituted much earlier, By the operation of sub - clause (2) to s. 25, (this must be of the amending act and not of the re - edited text of the act as amended) - we have to hold that the period of two years should be computed from the date of the assignment even though it took place much earlier than the coming into force of this act. This is the view taken by one of us, Krishnaswami nayadu j. In sankaran v. Andy (1954 ii mlj. 581) which view has found acceptance by a bench in l. P. A - no - 187/1952. It is unnecessary therefore to discuss the points that have been considered in those cases, But one aspect of the case has been newly put forward before us which has not been considered either by krishnaswami nayudu, J. Or by the letters patent appeal bench. It is this: it is argued on behalf of the landlord - respondent that if at the time the trial court disposed of the suit, Two years had elapsed after the assignment, Though the suit was a suit filed within two years of the assignment, This court ought to take into consideration the fact of the expiry of two years and should deem the suit as if it has been instituted on the date when the trial court passed its decree. If that is done then the prohibition contemplated in the third proviso to clause (6) of s. 25 will not have any effect. What is stated in the third proviso to sub - clause (6) of s. 25 is "no person whose right to evict arises under an instrument of transfer etc. Shall be entitled to sue". It is analogous to s. 195 of the code of criminal procedure where no court is permitted to take cognizance of an offence with regard to something which took place in a court of law or other matters without the filing of complaint by the court. What is contemplated is that the court would have no jurisdiction or right to take cognizance of a matter like this. Applying that principle to the present case, It is clear that at the time the suit was instituted the court was incompetent to take cognizance of the suit. A similar aspect of the case has been considered in the case in venkatraju v. Sri. Kanchumati venkataseetha ramachandra rao. (1936 71 mlj. 218) where the question. As regards the applicability of s. 37 (1) of the estates land act was considered. According to s. 37 (1) of the estates land act, A suit for enhancement on the ground a rise in prices shall not be entertained if within 20 years next preceding its institution, The rent has, Whether before or after the passing of the act, Been commuted or enhanced or the suit for enhancement has been dismissed on the merits. The facts show that in some of the suits under consideration there had been a refusal to enhance within 20 years of the filing of the suits, But at the time the suits came on for hearing the 20 years had elapsed. The lower court took that into consideration and held that the suits were maintainable. Pandrang rao j., Laid down that an indulgence which could be given to the landholder in a matter like this would be going directly against the teeth of the statute; and such an act is not countenanced by the application of the principle that subsequent events can be taken into consideration in exceptional cases. We are of opinion that the observations of pandrang rao, J. At page 222 are applicable:

"in my opinion there can be no justification for showing this indigence. To the land - holder in view of the policy of the act in this matter namely, That no claim to enhancement of rent shall de entertained by the court within 20 years after the rent has been enhanced. If indulgence is given to the land - holder in this manner the effect will be to cut down the duration of the statutory bar to some thing less than 20 years and to abrogate in part the express provisions of the statute."

we think that if we consider the suit as having been instituted on the date when the trial court pronounced its judgment, We would be also abrogating the provisions of the statute which prohibited the assignee from filing a suit within two years of the assignment. "

the observations are opposite. The decision considered the principle of taking into account subsequent events (relied on in 1969 klt. 334) and held the principle can have no application in considering a statutory provision like the 3rd proviso in s. 25 (6). It also noticed that the principle in 1954 ii mlj - 581 was affirmed on letters patent appeal. This again was not brought to the notice of the learned judge who decided 1961 k. L. T. 755. We are is respectful agreement with the principle of the decision in thangammal (died) and another v. Narayanaswami iyer and another (1956 i m. Lj - 474).

10. Our third and final comment on the decision in 1961 klt. 755 is regarding the observations of the learned judge that s. 25 of the malabar tenancy act contained no provision for dismissal of a suit instituted in contravention of the concerned proviso. As pointed out in a full bench decision of this court, Rendered again with respect to a parallel statutory provision, To which we shall immediately refer, This is immaterial. For, If the statutory bar against institution is absolute, A power of dismissal for its contravention is implicit. The full bench decision that we have in mind is alikutty sahit v. Cherian (1960 klt. 1309). There, A suit was instituted on a promissory note executed by an agriculturist. The question was whether the institution contravened the provisions of s. 3 of the madras indebted agriculturists (temporary relief) act 5/1954. S. 3 and 4 of the act in so far as they are material read as follows:

"no suit for recovery of a debt shall be instituted against any agriculturist in any civil or revenue court, Before the expiry of a year from the date of the commencement of this act.

4. All further proceedings in suits and applications of the nature mentioned in s. 3 shall, Subject to the next succeeding sub - section, Stand stayed until the expiry of a year from the date of commencement of this act"

the suit was instituted within the period of the bar created by s. 3 and was dismissed by the trial court on that ground. The dismissal was sustained by the full bench, Overruling an earlier decision of a single judge of this court in badshah v. P. V. K. Govindankutty (1957 klt. 239), Holding that a suit instituted within the period of the statutory bar had only to be stayed under s. 4 and cannot be dismissed. The full bench observed:

7. Sankaran i. Held that s. 3 was not an absolute prohibition against the institution of suits against agriculturists and that such suits had to be stayed under s. 4 if the plaintiffs had instituted such suits in the bona fide belief that the defendants were not agriculturists. The grounds relied on in arriving at this conclusion were that s. 3 would apply only if the plaint disclosed that the defendant was an agriculturist, That there was no provision in the act for dismissal of a suit filed in contravention of s. 3 and that s. 4 was couched in such general terms as to include suits filed during the period when the act was in force, I. E. For one year from 25 21954. We are unable to uphold this view. What s. 3 provides is that "no suit for the recovery of a debt shall be instituted

" this in our opinion is an absolute embargo on the institution of a suit for recovery of a debt from an agriculturist. Sankaran j. Has pointed out that the plaint can be rejected under r. 11 of order vii of the code of civil procedure only when the suit appears from the statement in the plaint to be barred by any law. Apart from the rejection of a plaint under order vii the court has jurisdiction to dismiss the suit if it comes to the conclusion that there is a bar to the institution of the suit. There may be cases like the present one where the parties are at issue on the question whether the defendants are agriculturists. In such a case the court is bound to try the issue and if it finds that the defendants are agriculturists, It has jurisdiction to dismiss the suit."

11. The decision in ayyan krishnan v. Kunhukutty amma (air. 1956 t. C. 402), Noticed in 1961 klt. 755, Holding that a suit for redemption of a mortgage filed before the right of redemption accrued by expiry of the term of the mortgage may well be regarded as maintainable, And decreed if the right accrued before the date of decree, Is easily distinguishable, As no statutory mandate barring the institution of the suit fell for consideration. Indeed, It was so distinguished in the decision in kundan lal v. Bhagvan das ilr. 1962 - 1 punjab 304).

12. In the light of the decision in thangammal v. Narayanaswami (1956 - 1 mlj. 494), And for reasons above given, We cannot accept the observations in neelakandhayya pillai v. Sankaran (1961 klt, 755) regarding the third proviso to s. 25 (6) of the malabar tenancy act as correct. We are therefore of the view that the respondent before us had no right to file the application for eviction, And the rent control court had no jurisdiction to receive the same, Before the expiry of one year from the date of the assignment under which respondent derived rights. This jurisdictional defect is not cured by the fact that the period of one year had expired by the time the rent control court ordered eviction.

13. We were rather troubled by the fact that the petitioner before us did not, Except at the late stage of argument, Take the objection on the ground of the third proviso to s. 11 (3). Had he done so in time, The respondent could well have withdrawn his petition and presented another after the expiry of one year, And perhaps obtained an order for eviction, Much earlier, Instead of being obliged, As he needs must be, To go through a cycle of fresh proceedings. But, We are afraid we cannot help this. Despite the lack of specific pleading by the petitioner, The matter was allowed to be argued and dealt with by all the three authorities below. The respondent himself did not produce the assignment deed under which he derived rights. As the view taken by the authorities below regarding the effect of the proviso to s. 11 (3) is manifestly wrong, And as the defect pertains to jurisdiction, We have no hesitation to interfere, And to set aside the orders impugned.

14. By c. M. P. 13529/1969, Counsel for the petitioner sought to make out that since the filing of o. P. 2761/1967 (converted into this revision petition) the respondent had come into possession of another suitable building by obtaining surrender from a tenant on 2nd august 1969 and was therefore disentitled to eviction under s. 11 (3). The suitability of the building thus alleged to have been surrendered, For carrying on the business of the respondent, And its proximity to his place of business have been denied in the counter affidavit to the above c. M. P. Filed by the respondent. We are not satisfied that this additional ground has been made out, So as to disentitle the respondent to an order for eviction.

15. The petitioner's counsel pressed before us a contention urged before all the three authorities below, And not altogether satisfactorily dealt with, That the tenancy had not been terminated by a notice as required by s. 106 of the transfer of property act, And therefore the petition for eviction was not maintainable. The point was not raised before the rent control court. The appellate authority, On this ground, Held it was a mixed question of law and fact, And that from the notice sent by the respondent his case was one of a tenancy at will which required no notice to quit. More or less the same reason has been repeated by the revisional authority. Two notices are seen to have been issued by the respondent (exts. P1 and p3.). The nature of the tenancy, And the sufficiency of the notice have not been sufficiently investigated. As we are allowing this revision in the view that we take of the effect of the third proviso to s. 11 (3) of the act, We do not propose to consider the plea of want of notice, Any further.

16. In the light of our conclusion, We allow this revision petition, Set aside the orders of the district judge, The appellate authority and the rent control court, And direct that the respondent's petition for eviction will stand dismissed. The parties will bear their respective costs throughout.