P.K. VIJAYAN versus KAMALAKSHI AMMA AND ORS.

Citation: [1994] 3 S.C.R. 213 · Decided: 30-03-1994 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Dismissed
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Judgment (excerpt)

P.K. VIJAYAN 
A 
v. 
KAMALAKSHI AMMA AND ORS. 
MARCH 30, 1994 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.] 
B 
Tenancy Laws-Kera/a Buildings (Lease and Rent Control) Act, 1965/ 
Kera/a Land Reforms Act-Section I I/Sections 72- Band 106-Eviction peti-
tion u/s 11-Denial of title of landlord-Claim allowed-Remedy of Section 
72B availed-Civil Suit for eviction-Tenant's plea of tenancy u/s 106-Claim C 
of fixity of tenancy-Maintainability-Applicability of Explanation IV to Sec-
tion 11 C.P. C. 
The respondent landlord filed petition u/s 11 of the Kerala Buildings 
(Lease and Rent Control) Act, 1965, for eviction of the tenant. The Rent 
Controller accepted the tenant's plea of denial of title of the landlord and D 
relegated the respondents to seek eviction by civil suit. Before its initiation, 
the appellant tenant availed remedy u/s 72B of the Kerala Land Reforms 
Act. The Learned Tribunal rejected the petition. The landlords filed civil 
suit for eviction of the appellant. In the suit the appellant, relying on 
Section 106 of the Land Reforms Act, claimed lixity of tenancy. He also E 
claimed that the Civil Court shall have to refer the matter to the Land 
Tribunal u/s 125(3) of the Land Reforms Act and the Civil Court is devoid 
of jurisdiction to decided the question. The trial court held that the 
appellant is entitled to the reference u/s 125(3). Revision filed against the 
judgment was allowed by the High Court, holding that the Tribunal cannot 
decide the dispute in view of the earlier order under section 72B and also F 
on the ground of res-judicata. 
In this appeal, appellant contends that section 106 of the Kerala 
Land Reforms Act creates a right in favour of the tenant having a com-
mercial lease. The appellant having constructed the theatre on the land is G 
entitled to lixity of tenancy. 
According to the respondents, the rent control proceedings u/s ll -0f 
the Rent Control Act operates as res-judicata since the appellant had the 
opportunity to plead the right of Section 106, but he failed to do so. 
Secondly, the appellant having elected to pursue the proceedings u/s 72 B H 
213 
214 
SUPREME COURT REPORTS 
[1994] 3 S.C.R. 
A 
of the Land Reforms Act and having become unsuccessful, is estopped by 
his conduct to raise plea u/s 106 thereof to non •uit the landloard in the 
civil suit. 
Dismissing the matter, this Court 
B 
HELD : I.I. The appellant merely chose to deny the title of the 
landlords and did not raise the plea of Section 106 of the Land Reforms 
Act. The rule of "might and ought" envisaged in Explanation N to Section 
11 C.P.C. squarely applies to the facts of the case and, therefore, it is no 
longer open to the appellant to plead that, Civil Court has no jurisdiction 
C to decide the matter and it shall be required to be referred to the Land 
Tribunal. That apart, the proceedings under Sec. 72 B were also decided 
against the tenant. (218-C-D) 
D 
E 
Narayanan v. Kunchi Amma Parukutty Amma, (1986) KL T 1340, 
approved. 
Abdulrahiman v. Abdulla Haji, (1991) 1 KLT 702, distinguished. 
1.2. The appellant having decided only to avail the remedy of Section 
72 B and omitted to plead the remedy of Section 106, it is no longer open 
lo him to contend that he is entitled to the benefit of Section 106 of the 
Land Reforms Act. (218-E:F) 
13. It would be fair and just that the parties raise all available 
relevant pleas in the suits or the proceedings when the action is initiated 
and the on1ission thereof does constitute constructive res judicata to 
prevent raising of the same at a later pOint of time. Thus it must be deemed 
F 
that they are waived. [219-B-C] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2160 of 
1994. 
From the Judgment and Order dated 18.8.88 of the Kerala High 
G Court in C.R.P. No. 2220 of 1987-B. 
N. Sudhakaran for the Appellant. 
P.S. Poli, and E.M.S. Anam for the Respondent. 
H 
The Judgment of the Court was delivered by 
i 
VIJAYAN v. KAMALAKSHI [RAMASWAMY.J.] 
215 
K. RAMASWAMY, J. Leave granted. 
2. This appeal by special leave arises from the order to the High 
Court of Kerala dated August 18, 1988 made in C.R.P. No. 2220 of 1987-B. 
A 
The respondent-landlords filed R.C.P. No.19 of 1974 under Section 11 of 
Kerala Buildings (Lease and Rent Control) Act, 1965, for eviction of the 
appellant-tenant. Under the proviso thereto if the tenant denies the title of B 
the landlord or claims right of permanent tenancy, the Rent Controller 
shall decide whether the denial or claim
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