Constructive res judicata barred a tenant from raising a belated statutory defence and demanding a land tribunal reference.

A tenant who failed to raise an available Section 106 defence in earlier rent control and Section 72B proceedings was held barred from invoking it later, because the omission attracted constructive res judicata under Explanation IV to Section 11 CPC and also amounted to waiver. The court also noted that a reference under Section 125(3) of the Kerala Land Reforms Act is required only when a live tenancy question properly arises for decision; where the tenant had already foregone the statutory defence that would have triggered reference, he could not later insist on a mandatory referral. The civil court was therefore competent to proceed without reference.

---

---

Issues: (i) Whether the tenant could invoke Section 106 of the Kerala Land Reforms Act in the eviction suit after omitting to raise that plea in the earlier rent control proceedings and Section 72B proceedings, and whether the omission was barred by constructive res judicata under Explanation IV to Section 11 of the Code of Civil Procedure, 1908. (ii) Whether the civil court was bound to refer the tenancy question to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act.

Issue (i): Whether the tenant could invoke Section 106 of the Kerala Land Reforms Act in the eviction suit after omitting to raise that plea in the earlier rent control proceedings and Section 72B proceedings, and whether the omission was barred by constructive res judicata under Explanation IV to Section 11 of the Code of Civil Procedure, 1908.

Analysis: The plea under Section 106 was available when the tenant was faced with eviction and also when he pursued relief under Section 72B. He chose instead to contest title and to proceed only under the cultivation-based claim. The rule embodied in Explanation IV to Section 11 applies where a matter might and ought to have been raised earlier. The Court held that a tenant cannot, in successive proceedings, keep back one available statutory defence and later seek to use it to defeat the landlord's suit. The omission operated as constructive res judicata and also amounted to waiver of the omitted plea.

Conclusion: The tenant was precluded from raising the Section 106 plea at the later stage, and the objection based on that plea failed.

Issue (ii): Whether the civil court was bound to refer the tenancy question to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act.

Analysis: The reference mechanism under Section 125(3) is attracted when a live tenancy question arises for decision. Since the tenant had already omitted the statutory defence that would have triggered such a reference, he could not, after the earlier proceedings, insist that the civil court lacked jurisdiction and must refer the issue. The earlier proceedings and the tenant's election to pursue only one statutory route prevented reopening the matter by a fresh reference.

Conclusion: The civil court was not bound to make a reference under Section 125(3), and the jurisdiction objection failed.

Final Conclusion: The appeal failed because the tenant's belated reliance on Section 106 was barred by constructive res judicata and waiver, and the civil court was competent to proceed without reference to the Land Tribunal.

Ratio Decidendi: A statutory defence available in an earlier proceeding, if not raised when it might and ought to have been raised, cannot be invoked later to defeat the subsequent proceeding, and the party is barred by constructive res judicata from insisting on a reference that the omitted plea would otherwise have attracted.

---