Chinnamarkathian Alias Muthu Gounder
& ANR Vs. Ayyavoo Alias Periana Gounder & Ors [1981] INSC 202 (10
December 1981)
DESAI, D.A.
DESAI, D.A.
KOSHAL, A.D.
MISRA, R.B. (J)
CITATION: 1982 AIR 137 1982 SCR (2) 146 1982
SCC (1) 159 1981 SCALE (3)1891
ACT:
Madras (Now Tamil Nadu) Cultivating Tenants
Protection Act 1955, S 3, 4(a) and (b)-Scope of-Cultivating Tenant-Rent in
arrears-Eviction petition by landlord-composite order by Revenue Divisional
Officer-Allowing time for deposit of rent and on default directing
eviction-Such order whether valid and legal.
HEADNOTE:
The appellants in the appeals were
cultivating tenants in occupation of different parcels of land which were owned
by the respondents. The respondents purchased these lands from the erstwhile owner,
who also executed a deed of assignment assigning the rent in arrears of the
tenants for the periods 1958-59 and 1959-60. The respondents filed eviction
petitions against the appellants for eviction on the ground that they were in
arrears of rent due and payable for the years 1958-59, 1959-60 and 1960-61,
which were contested on diverse grounds.
The Revenue Divisional Officer over-ruled all
the contentions of the tenants and held that the tenants were in arrears of
rent for the aforementioned three years and were liable to pay the same. He
further held that since the previous landlord assigned the arrears of rent for
the two years, 1958-59 and 1959-60, the respondents were not only entitled to
commence action for recovery of arrears of rent due and payable to the previous
landlord but they were also entitled to evict the tenants for failure to pay
the rent in arrears. The tenants were directed to pay the arrears within six
weeks, failing which they were to be evicted.
In the Civil Revision Petitions by the
tenants the High Court directed that the rent found in arrears be deposited,
which order was complied with. The High Court found that the Revenue Divisional
Officer was in error in passing a composite order, whereby he determined the
amount of arrears and after specifying the time within which the amount of
arrears should be paid up prescribed the consequences of failure namely that
the tenants should be evicted:
nevertheless held that the orders made by the
Revenue Divisional Officer were not one for eviction and dismissed the revision
petitions.
In the appeals to this Court it was contended
on behalf of the appellants that when the Revenue Divisional Officer grants
time to the tenant to deposit the arrears of rent he cannot simultaneously pass
an order of eviction which is to take effect future and such an order can be
passed only after the default in making the deposit is committed. On behalf of
the respondents it was contended that the Revenue Divisional Officer has a
discretion to grant time to the 147 defaulting tenant to repair the default,
and therefore there would be nothing illegal in granting time and
simultaneously providing for consequence of default.
Allowing the appeals
HELD: [By the Court]
1. When the Revenue Divisional Officer allows
time to a cultivating tenant for depositing the arrears of rent in pursuance of
the provisions of clause (b) of sub-section (4) of Section 3 of the Act, he
cannot simultaneously pass a conditional order of eviction which is to take
effect on a default to occur in future. An order to evict can, in terms of the
section, only be passed 'if the cultivating tenant fails to deposit the sum as
directed'. [160 E; 158 G-159 B]
2. The orders of the Revenue Divisional
Officer directing eviction, were passed in contravention of the express
provision of clause (b) of sub-section (4) of Section 3 of the Act and are
therefore, without jurisdiction. [160 F, C]
3. The order of the Revenue 'Divisional
Officer directing deposit of rent having been actually complied with about a
couple of decades back it is no use remitting the case to him. The ends of
justice would be served if it is declared that the tenants are qualified for
the protection envisaged by the Act against their eviction. [160 G-H, A-B] [per
D.A. Desai J.]
1. Section 3 of the Act places an embargo on
the eviction of a cultivating tenant and the protection extends to rendering a
decree or order of a court for eviction nugatory. An enabling provision in
sub-section (4)(a) of Section 3 enables the landlord to seek eviction of a
cultivating tenant on grounds available to him under the Act. [154 B]
2. When an application for eviction is made,
clause (b) of sub-section (4) prescribes the procedure to be followed by the l
Revenue Divisional Officer. The officer has to, (i) give an opportunity both to
the landlord and the cultivating tenant to make a representation, (ii) hold a
summary enquiry into the matter to determine the rent in arrears. After having
determined the rent in arrears the Revenue Divisional Officer has to further
enquire the relevant circumstances of the landlord and the cultivating tenant
and the circumstances which have a bearing on the issues relatable to the need
of the landlord for rent and the paying capacity of the tenant. Thereafter the
Revenue Divisional Officer has to decide what length of time has to be given to
the tenant to deposit the rent found in arrears and at that stage the
proceeding must stop. It is something like a preliminary issue to be determined
because after a finding is recorded that the tenant is in arrears and the
amount of arrears is determined the Revenue Divisional Officer is under a
statutory obligation to grant time to deposit arrears. [154 C-E]
3. The section grants locus poenitentiae to a
tenant who has committed default in payment of rent. Granting of the time is
not a concession dependent upon the sweet will of the Revenue Divisional
Officer, it is a statutory obligation 148 cast on the Revenue Divisional
Officer. He has a discretion in determining the length of time and this
discretion is to be exercised judicially based upon objective facts ascertained
in the inquiry relatable to the circumstances of the landlord and the tenant.
[154 G]
4. The proceedings before the Revenue
Divisional Officer under section 3 of the Act are judicial proceedings.
The Revenue Divisional Officer is a Court a
as provided in section 6(b) of the A ct and a revision petition lies to the
High Court against his order. [155 D]
5. If the proceedings are judicial and there
is a lis between the parties, the rival contentions have to be properly
adjudicated upon the evidence placed before the Court. Before the Revenue
Divisional Officer can make an order for eviction of a cultivating tenant he
has as a matter of statutory obligation to determine the issues which arise in
the case under sub-section (4)(b) of section 3, record a finding on each of
them and make a speaking order.
The Revenue Divisional Officer has to grant
time to the cultivating tenant to deposit the arrears found due by him and the
length of time is to be relatable to the circumstances of the landlord and the
cultivating tenant.
After determining the arrears and
ascertaining the circumstances of the landlord and the tenant and fixing the
length of time to pay the arrears the proceedings at that stage must stop. This
is implicit in sub-section (4) (b) of section 3. [155 E-H]
6. If a court in exercise of jurisdiction can
grant time to do a thing, in the absence of a specific provision to the
contrary curtailing, denying or withholding such jurisdiction, the jurisdiction
to grant time would inhere in its ambit the jurisdiction to extend time
initially fixed by it. Passing a composite order would be acting in disregard
of the jurisdiction in that while granting time simultaneously the court denies
to itself the jurisdiction to extend time. The principle of equity is that when
some circumstances are to be taken into account for fixing a length of time
within which a certain action is taken, the court retains to itself the
jurisdiction to re-examine the alteration or modification of circumstances
which may necessitate extension of time. If the Court by its own act denies
itself the jurisdiction to do so, it would be denying to itself the
jurisdiction which in the absence of a negative provision, it undoubtedly
enjoys. [157 D-F]
7. Conditional orders are in terrorem, so
that dilatory litigants might put themselves in order and avoid delay, but they
do not completely estop a court from taking note of events and circumstances
which happen within the time fixed.
[157 G]
8. The danger inherent in passing conditional
orders is that it may result in taking away jurisdiction conferred on the court
for just decision of the case The true purport of conditional order is that
such orders merely create something like a guarantee or sanction for obedience
of the court's order but would not take away the court's jurisdiction to act
according to the mandate of the statute or on relevant equitable considerations
if the statute does not deny such considerations. [155 D-E] Mahant Ram Das v.
Ganga Das, [1961] 3 SCR 763, referred to.
149 [per Koshal & Misra JJ]
1. Sub-section (4) of section 3 gives the
Revenue Divisional Officer power either to allow the application of the
landlord or to dismiss it after he has held a summary enquiry into the matter.
If the application is allowed, an order of eviction has to be passed. If it is
dismissed the proceedings come to an end. However, if the ground of eviction is
non-payment of rent, the Revenue Divisional Officer is clothed with power to
allow the cultivating tenant to deposit the arrears and costs, as directed. The
power is discretionary and, while exercising the same, it is not incumbent or
the Revenue Divisional Officer to grant time. [164 E-F]
2. If the legislature intended to make it
obligatory on the part of the Revenue Divisional Officer to fix a time for
deposit of the arrears in all cases covered by clause (a) and clause (a) of
sub-section (2) there is no reason why it should have used the word 'may' in relation
to the grant of time. Clause (b) of sub-section (3) provides that "if the
court finds that any sum is due it shall allow the cultivating tenant, just and
reasonable time..." The difference in the language used by the legislature
in clause (aa) of sub-section (2) and in clause (b) of sub-section (3) is
significant and not without purpose. The intention of the legislature appears
to be that normally a defaulting tenant must seek the help of the court all by
himself and that if he does so he must be protected but that a defaulting
tenant who waits for payment of rent till he is sought to be evicted by the
landlord is not necessarily entitled to the same protection. [164 G 165 B]
Circumstances may exist which may place him at par with a tenant covered by sub-section
(3) but then it may not necessarily be so. That is why it is left to the
discretion of the Revenue Divisional Officer to grant time to the cultivating
tenant or to deny him that opportunity. [165 C]
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
2197- 2199 of 1969.
From the judgment and order dated the 16th
February, 1965 of the Madras High Court in Civil Revision Petition Nos. 2399,
2400 & 2401 of 1961.
P. Govindan Nair, K. J. John and Mrs. Bady
Krishnan for the Appellants .
M. Natesan, Mrs. J.Ramachandran and K. Ram
Kumar for the Respondents.
The following Judgments were delivered:
DESAI, J. Respondents in each of these
appeals are the landlords of the land more particularly described in the three
different petitions filed by them in the Court of the Revenue Divisional
Officer, Namakkal in Tamil Nadu State seeking to evict tenants of 150 different
parcels of land on the allegation that the concerned tenants were in arrears of
rent for the years 1958-59, 1959-60 and 1960-61. The tenants who are appellants
in these three appeals appeared in the respective petitions and contested the
same on diverse grounds but the only one now surviving at this stage is;
whether in view of the language employed in section 3, 4(a) and (b) of the
Madras (now Tamil Nadu) Cultivating Tenants Protection Act, 1955 ('Act for
short), the Revenue Divisional officer erred in passing a composite order for
payment of rent found to be in arrears within the time prescribed by him and on
default, without any further proceeding, directing eviction of the tenants.
The respondents purchased the land cultivated
by the tenants in each of the petitions under sale deeds Ext. P-6 dated January
22, 1960 and Ext. P-7 dated March 9, 1960, from the erstwhile owner of the land
one Nachayammal.
Subsequently by the deed of assignment Ext.
P-5 dated 5th December, 1960, Nachayammal, the vendor of the respondents
assigned the rent in arrears for the period 1958-59 and 1959-60 to the
respondents. By the time, action in each case was commenced, according to the
respondents-landlords rent for the year 1960-61 had become due and payable The
respondents accordingly filed C.T.P.A. Nos. 1, 2 and 3 of 1961 against the
respective tenants on January 2, 1951, for eviction of the tenants on the
ground that they were in arrears of rent due and payable for the years 1958-59,
1959- 60 and 1960-61.
The Revenue Divisional Officer overruled all
the contentions of the appellants-tenants in each case and held that the
tenants were in arrears of rent for the aforementioned three years and that
they were liable to pay the same. It was further held that since by the deed of
assignment, previous landlord assigned the arrears of rent for two years
1958-59 and 1959-60 in favour of the respondents, they were not only entitled
to commence the action for recovery of arrears of rent due and payable to the
previous landlord but they were also entitled to evict the tenants for failure
to pay rent in arrears. Having recorded these findings the Revenue Divisional
Officer passed identical order in each case with variation in figures. only one
order may be extracted to focus the attention on the controversy now brought to
this Court. In C.T.P.A. No. 1/61 the following final order was made:
"In view of my findings above I hold that
the respondents are in arrears of rent to the extent of Rs.
2,850 for the years 1958-59, 1959-60 and
1960-61 to the petitioners. I 151 direct under section 3, 4(a) that this amount
be paid to the petitioners within six weeks from the date of this order failing
which they shall be evicted from the suit lands." This order was made on
November 6, 1961. The tenants were, therefore, under an obligation to pay the
arrears found due by December 18,1961, to qualify for the protection of the
Act. Admittedly the tenants did not deposit the arrears found due by the
Revenue Divisional Officer but filed three Civil Revision Petitions on December
11, 1961 in the High Court. While admitting the revision petitions on December
15, 1961, the High Court granted conditional stay directing that the rent found
in arrears be deposited within the time set out in the order of the High Court.
A dispute appears to have been raised about the deposit made by the tenants
whereupon the High Court on May 2, 1962, directed that an additional amount of
Rs. 950 be deposited by the tenants within the time prescribed by it and it is
conceded that the conditional orders have been fully complied with.
The most important contention that engaged
the attention of the High Court at the hearing of the Revision Petitions was
whether the Revenue Divisional Officer was in error in passing a composite
order whereby he determined the amount of rent in arrears and after specifying
the time within which the amount in arrears should be paid up, prescribed the
consequences of failure to act within the prescribed time, namely, that the
tenants would be evicted.
The High Court noticed some of its own
conflicting decisions bearing on the topic but ultimately held that the view
taken by Srinivasan, J. in Venkitaswami Naicker v. Ramaswami Naicker, in which
it was held as under, was correct:
"Having regard to the object of the
enactment it is clear that the law empowers the Revenue Divisional Officer to
grant a reasonable time to the tenant to pay the arrears in order to avoid
eviction. There may be a variety of circumstances by reason of which the tenant
might find it difficult to comply with the direction to deposit the arrears by
the date fixed. If the date so fixed initially is to be an inflexible and
unalterable date, it is bound to work considerable hardship upon the tenants.
It would be a mechanical application of the provision of the section for the
purpose of eviction. The object of the section is to avoid 152 eviction
wherever possible and not insist upon eviction for such reasons as obtain in
the case." Having noticed the law as indicated in the passage extracted,
the High Court observed that the order made by the Revenue Divisional Officer
was not one for eviction. A further unqualified order has to be passed by the
Revenue Divisional Officer directing the eviction But at a later stage in the
judgment the High Court appears to have taken a somersault when it observed
that in the case before it the High Court found nothing wrong in the order
which the Revenue Divisional Officer had passed. In other words, the composite
order was held to be legal and once the revision petitions filed by the tenants
were dismissed by the High Court, the order passed by the Revenue Divisional
Officer would immediately come into operation. With respect our task became
none too easy to wade through the irreconcilably contradictory approach of the
High Court. Ultimately the High Court dismissed the three revision petitions.
Hence these three appeals by certificate.
The object behind enacting the Act clearly
manifests itself by reference to its long title which reads:
"An Act for the protection from eviction
of cultivating tenants in certain areas in the State of Madras." It was a
beneficient legislation for granting security or tenure to cultivating tenants
of agricultural lands. It is a well-settled canon of construction that in
construing the provisions of such enactments the court should adopt that
construction which advances, fulfils and furthers the object of the Act rather than
the one which would defeat the same and render the protection illusory.
It is not in dispute that the tenants in each
of these appeals are cultivating tenants and the lands of which they are
tenants are lands covered by the Act. They are sought to be evicted on the only
ground that they have committed default in payment of rent payable from year to
year for a period of three years.
Mr. Natesan learned counsel who appeared for
the respondents urged that if the Revenue Divisional Officer has discretion to
grant time to the defaulting tenant to repair the default, there would be
nothing illegal in granting time and simultaneously providing for consequence
of default. This contention may be examined from three independent angles;
153 (1) Has Revenue Divisional Officer a
discretion to grant time after being satisfied that a default is committed, to
repair the default within the time considered reason able by him and so ordered
by him ? (2) Has he a discretion to further extend the time if the defaulting tenant
is unable to repair the default within the time fixed by him ? (3) What is the
impact of answer of the aforementioned two questions on his jurisdiction to
pass a composite order ? Section 3 and the relevant sub-sections read as under:
3(1) Subject to the next succeeding
sub-sections, no cultivating tenant shall be evicted from his holding or any
part thereof, by or at the instance of his landlord, whether in execution of a
decree or order of a court or otherwise;
X X X (4)(a) "Every landlord seeking to
evict A cultivating tenant failing under sub-section (2) shall, whether or not
there is an order or decree of a court for the eviction of such cultivating
tenant, make an application to the Revenue Divisional Officer and such
application shall bear a Court-fee stamp of one rupee." (4)(b) on receipt
of such application, the Revenue Divisional Officer shall, after giving a
reasonable opportunity to the landlord and the cultivating tenant to make their
representations.
hold a summary enquiry into the matter and
pass an order either allowing the application or dismissing it and in a case
falling under clause (a) or clause (aa) of sub-section (2) in which the tenant
had not availed of the provisions contained in sub-section (3), the Revenue
Divisional Officer may allow the cultivating tenant such time as he considers
just and reasonable having regard to the relative circumstances of the landlord
and the cultivating tenant for depositing the arrears of rent payable under
this Act inclusive of such costs as he may direct. If the cultivating tenant
deposits the sum as directed, he shall be deemed to have paid the rent under
sub-section 3(b).
154 If the cultivating tenant fails to
deposit the sum as directed, the Revenue Divisional Officer shall pass an order
for eviction." Section 3 of the Act places an embargo on the eviction of a
cultivating tenant and the protection extends to rendering a decree or order of
a court for eviction nugatory. There is an enabling provision in sub-section
(4)(a) of section 3 which enables the landlord to seek eviction of a
cultivating tenant on the ground which may be available to him under the Act,
When such an application is made, clause (b) of sub-section (4) prescribes the
procedure to be followed by the Revenue Divisional Officer. The Officer
concerned has to, (i) give an opportunity both to the landlord and the
cultivating tenant to make a representation; (ii) hold a summary enquiry into
the matter to determine the rent in arrears. After having determined the rent
in arrears the Revenue Divisional Officer has to further enquire the relative
circumstances of the landlord and the cultivating tenant and the circumstances
which have a bearing on the issues are the circumstances relatable to the need
of the landlord for rent and the present paying capacity of the tenant. After
taking into consideration the circumstances of both the landlord and the tenant
thus ascertained the Revenue Divisional Officer has to decide what length of
time has to be given to the tenant to deposit the rent found in arrears and at
that stage the proceeding must stop. It is something like a preliminary issue
to be determined because after a finding is recorded that the tenant is in
arrears and the amount of arrears is determined, the Revenue Divisional Officer
is under a statutory obligation to grant time to deposit the arrears.
The section grants locus poenitentiae to a
tenant who has committed default in payment of rent. Granting of the time is
not a concession dependent upon the sweet will of the Revenue Divisional
Officer. Granting time to deposit the arrears is statutory obligation cast on
the Revenue Divisional Officer. He has a discretion in determining the length
of time and this discretion is to be exercised judicially based upon objective
facts ascertained in the inquiry relatable to the circumstances of the landlord
and the tenant. In the context in which the expression 'relative circumstances
of the landlord and the cultivating tenant is used clearly manifests the
legislative intention that the circumstances of the landlord for recovering
arrears of rent which may indicate his urgent need for the money or if the rent
is in the crop share, the crop, and the relative circumstance of the tenant
would be his present financial position to repair the default. On both sides
there can be number of circumstances one can envisage which, if properly
brought to the notice of the Revenue Divisional Officer, would influence his
judicial decision as to the length of time to be granted by him for the deposit
of arrears. Where the landlord is a big landlord to whom payment of rent by one
tenant of a small amount would not make any difference and the tenant is a
needy tenant who was so involved in such depressing circumstances that he could
not pay even the small amount of rent in time and when such circumstances are
judicially appraised, the Revenue Divisional Officer may shorten or lengthen
the time to be given for depositing the amount so as to repair the default.
It is not open to the Revenue Divisional
Officer to arbitrarily fix time. His order fixing the time must show on the
face of record that he made the necessary enquiry as to the relative
circumstances of the landlord and the cultivating tenant, and after evaluating
the circumstances placed before him by both the sides he would determine the
length of time and the order fixing the time must at least give some indication
as to what weighed with him in fixing the certain time which he fixed in a
given case. The proceedings before the Revenue Divisional Officer are judicial
proceeding. For the purpose of the proceedings under section 3 of the Act, the
Revenue Divisional Officer is a Court as provided in section 6(b) of the Act
and a revision petition would lie to the High Court against the order of the
Revenue Divisional Officer.
If the proceedings are judicial and there is
a lis between the parties, the rival contentions have to be properly
adjudicated upon the evidence placed before the Court. Before the Revenue
Divisional Officer can make an order for eviction of a cultivating tenant he
has, as a matter of 'statutory obligation, to determine the issue which arise
in the case under sub-section (4)(b) of section 3, record a finding on each of
them and make a speaking order. By the very language of sub-section (4)(b) of
section 3, the Revenue Divisional Officer has to grant time to the cultivating
tenant to deposit the arrears found due by him and the length of time is to be
relatable to the circumstances of the landlord and the cultivating tenant.
After determining the arrears and
ascertaining the circumstances of landlord and tenant and fixing the length of
time to pay the arrears, the proceeding at that stage must stop. This is
implicit in sub-section (4)(b) of section 3.
The scheme of the Act is that merely on
determination of rent in arrears the Revenue Divisional Officer is not to
conclude that there is such default which has become irreparable and that he is
156 under an obligation to evict the tenant. In fact, the statute grants locus
poeniteniae to the tenant by making it obligatory upon the Revenue Divisional
Officer to grant some time to the tenant to repair the default. If after the
time so granted expires and the tenant fails to comply with the order calling
upon him to deposit the arrears there would be a default which may become
irreparable and eviction may follow. Till then there is no jurisdiction in the
Revenue Divisional Officer to direct eviction.
In fact the High Court itself has taken this
very view when it observed that the view taken by Srinivasan, J. was the
correct one having regard to the avowed object of the Act, namely, preventing
unreasonable eviction and affording protection to the tenants to retain the
holdings so long as interests of the landlord in the matter of the prompt
payment of rent are safeguarded. At another stage, the High Court observed that
the time that has to be given or allowed to the tenant to deposit the arrears
is to be determined by considering what is just and reasonable having regard to
the relative circumstances of both the parties and by its very nature this must
be elastic and flexible and not fixed or final. In other words, the High Court
was of the opinion that the composite order is not contemplated by sub-section
(4)(b) of section 3.
If sub-section (4)(b) of section 3 does not
contemplate passing of a composite order, what is the correct procedure that
must be followed in a proceeding under that sub-section ? That is self-evident
from the language employed in that sub-section. After the application is received
and the parties are summoned and representations are heard, the Court must
determine whether the cultivating tenant is in arrears of rent. If the answer
is in the affirmative, it has to determine the arrears in terms of its money
value.
Thereafter, the Revenue Divisional Officer
must ascertain relative circumstances of the landlord and the tenant and as
indicated hereinabove, these circumstances must be relatable to the need of the
landlord for prompt payment and the present prevalent circumstances of the
tenant relatable to his paying capacity. Thousand and one circumstances can be
envisaged which may have a bearing on this aspect. After these circumstances
are properly adjudicated and evaluated the Revenue Divisional Officer must fix
time within which the tenant should pay the amount and repair the default.
It was seriously contended by Mr. Natesan as
to what is there in the scheme of the Act and especially in the language of
sub- 157 section (4)(b) which would make it impermissible for the Revenue Divisional
Officer simultaneously passing an order determining rent in arrears and
directing that if the tenant fails to pay the amount within the time prescribed
by the Court eviction shall follow as a matter of course. If this construction
of sub-section (4)(b) as canvassed by Mr.
Natesan is adopted the Revenue Divisional
Officer would be denying to himself a more beneficial jurisdiction conferred
upon him, namely, to extend the time for making the payment if an evaluation of
circumstances so placed before him he is satisfied that a further extension is
not only just but not to grant it would be harsh and unjust and would be
defeating the object for which the Act was enacted. An analogous provision may
be noticed, It is a well accepted principle statutorily recognised in section
148 of the Code of Civil Procedure that where a period is fixed or granted by
the court for doing any act prescribed or allowed by the Code, Court may in its
discretion from time to time enlarge such period even though the period originally
fixed or granted may expire. If a Court in exercise of the jurisdiction can
grant time to do a thing, in the absence of a specific provision to the
contrary curtailing, denying or withholding such jurisdiction, the jurisdiction
to grant time would inhere in its ambit the jurisdiction to extend time
initially fixed by it. Passing a composite order would be acting in a disregard
of the jurisdiction in that while directing time simultaneously the court
denies to itself the jurisdiction to extend time. The principle of equity is
that when some circumstances are to be taken into account for fixing a length
of time within which a certain action is to be taken, the Court retains to
itself the jurisdiction to re-examine the alteration or modification of circumstances
which may necessitated extension of time. If the Court by its own act denies
itself the jurisdiction to do so, it would be denying to itself the
jurisdiction which in the absence of a negative provision, it undoubtedly
enjoys.
Conditional orders, were held by this Court
to be in terrorem, so that dilatory litigants might put themselves in order and
avoid delay, but they do not completely stop a court from taking note of events
and circumstances which happen within the time fixed. In Mahant Ram Das v.
Ganga Das, in the context of a failure to pay requisite court fee within the
time allowed by the Court subject to the condition order that failure to pay
would result in dismissal of the appeal, this Court observed as under:
"How undesirable it is to fix time
peremptorily for a 158 future happening which leaves the Court powerless to
deal with events that might arise in between, it is not necessary to decide in
this appeal. These orders turn out, often enough to be expedient. Such
procedural orders, though peremptory (conditional decrees apart) are, in
essence, in terrorem, so that dilatory litigants might put themselves in order
and avoid delay. They do not, however, completely, estop a court from taking
note of events and circumstances which happen within the time fixed. For
example it cannot be said that, if the appellant had started with the full
money order to be paid and came well it time but was set upon and robbed by
thieves on the day previous, he could not ask for extension of time, or that the
Court was powerless to extend it. Such order is not like the law of the Medes
and the Persians." The danger inherent in passing conditional orders
becomes self-evident because that by itself may result in taking away
jurisdiction conferred on the court for just decision of the case The true
purport of conditional order is that such orders merely create something like a
guarantee or sanction for obedience of the court’s order but would not take
away the Court's jurisdiction to act according to the mandate of the statute or
on relevant equitable considerations if the statute does not deny such
consideration. In order to avoid subsequent controversy sub- section (4)(b)
envisages proceedings in two stages and that by itself inhibits passing of a
conditional order. It is, therefore, not possible to accept the construction
canvassed for on behalf of the respondents.
As analysed the scheme of sub-section (4)(b)
of section 3 requires the Revenue Divisional Officer to determine, arrears,
ascertain the exact amount payable by the tenant, fix the time for payment
after taking into consideration the relevant circumstances of the landlord and
the cultivating tenant and then stop there. There is no power in the Revenue
Divisional Officer at that stage to pass an order for eviction.
If the tenant deposits the amount or pays up
the rent and repairs the default within the time fixed by the Revenue
Divisional Officer, on an application of the tenant pointing out this fact, the
original application of the landlord for eviction would have to be dismissed.
If on the other hand the landlord points out to the Revenue Divisional Officer
that the cultivating tenant has failed 159 to comply with the order made by the
Court and if after notice to the tenant and in the absence of a request for
extension of time which again may be judicially examined, the default becomes
wilful or contumacious. It is at that stage and at that stage alone that the
Revenue Divisional Officer enjoys jurisdiction to order eviction. Such
jurisdiction improperly exercised at an earlier stage would render the order
without jurisdiction. Surprisingly the High Court reached the same conclusion
but failed to follow it.
In all the three cases the Revenue Divisional
Officer determined the arrears of rent and gave six weeks' time to pay the
same. Within the period of six weeks the cultivating tenants in each case
approached the High Court and obtained conditional stay, the condition being to
deposit the rent in arrears within the time prescribed by the High Court and
these orders have been complied with. If the Revenue Divisional Officer had not
denied to himself the further jurisdiction to examine the situation as it
emerged on the date of expiry of the period prescribed by him, it would have
been brought to his notice that the eviction was unjustified in view of the
orders made by the High Court.
But as the order became effective according
to the Revenue Divisional Officer on the mere failure to deposit the arrears
found due by him, the order of eviction without jurisdiction became effective.
The High Court held that there was no order of eviction but affirmed the order
of the Revenue Divisional Officer as one for eviction.
The question then is: What should be my
approach in these appeals? Frankly speaking, on my finding that the latter part
of the Revenue Divisional Officer's order that 'in the event of failure to
deposit the amount within the time prescribed eviction would follow,' being
without jurisdiction, I would be required to remand the matter to the Revenue
Divisional Officer to proceed from that stage.
However, I cannot overlook the fact that the
initial proceedings before the Revenue Divisional Officer started in 1961. Two
decades have rolled by. The ground of eviction was a technical ground of
default repaired by the orders of the High Court when the rent found in arrears
was deposited. The landlords have been paid, may be not specifically within the
time prescribed by the Revenue Divisional Officer but within the time
prescribed by the High Court. It is not necessary to decide in this case
whether the time prescribed by the Revenue Divisional Officer, if challenged in
the superior court i.e. the High Court, the High Court would have jurisdiction
to prescribe its own time calling upon the tenant to deposit the amount to
repair the default. That question is kept open but in the facts of this case
the amount having been deposited 160 ways back in 1961-62, it would be merely
adding to the agony of the parties for a very technical consideration to remit
the case to the Revenue Divisional Officer. In the facts of this case it would
be an idle formality to remit the case to the Revenue Divisional Officer for
the additional reason that he will have to fix a fresh date for deposit of the
amount and the amount has already been deposited 19 to 20 years back. Having
regard to all the circumstances of the case and the inevitable consequence
flowing from the passage of time, I do not consider it just and proper to remit
the case to the Revenue Divisional Officer. In my opinion the tenants have
qualified for the protection of the Act and they were not liable to be evicted.
Accordingly, all the three appeals are
allowed and the order for eviction of the tenants in each case is set aside but
in the circumstances of the case with no order as to costs.
KOSHAL, J. I have had the advantage of going
through the judgment prepared by my learned brother, Desai, J., and find myself
in agreement with him on the following points:
(a) When the Revenue Divisional Officer (RDO
for short) allows time to a cultivating tenant for depositing the arrears of
rent in pursuance of the provisions of clause (b) of sub-section (4) of section
3 of the Act, he cannot simultaneously pass a conditional order of eviction
which is to take effect on a default to occur in future. An order of that type
can, in terms of this section, only be passed 'if the cultivating tenants fails
to deposit the sum as directed'. The orders of the RDO directing eviction and
covered by these appeals were thus passed in contravention of the express
provisions of the clause and are thus without jurisdiction.
(b) The orders of the RDO directing the
deposit of rent having been actually complied with about a couple of decades
back it is no use remitting the case to him and it would serve the ends of
justice if we declare that the tenants are qualified for the protection
envisaged by the Act against their eviction.
(c) All the three appeals merit acceptance
and are allowed with no order as to costs, the order for eviction of the tenant
in each case being set aside.
2. I may, however, observe that it is wholly
unnecessary for the decision of the appeals to determine the question as to
whether it is incumbent on the RDO, while acting in pursuance of the provisions
of clause (b) above mentioned, to grant time to a tenant who has been found by
him to be in arrears of rent. For one thing, that questions did not form the
subject-matter of argument on either side at the hearing of the appeals, the
only point really canvassed before us being that when the RDO grants time to
the tenant he cannot simultaneously pass an order of eviction which is to take
effect in future and which he can pass only after the default in making the
deposit is committed. Secondly, that question does not arise in these appeals
as in each of the appeals before us the RDO did grant time to the tenants
concerned to deposit arrears of rent. As it is, Desai, J. has arrived at a
categorical conclusion that according to clause (b) aforesaid it is obligatory
on the RDO to grant time to the tenant for depositing the arrears in all cases
falling under clause (a) or clause (aa) of sub-section (2) of section 3 of the
Act in which the tenant has not availed of the provisions contained in
subsection (3) of that section. Being unable to subscribe to that conclusion I
give below my reasons for holding a contrary opinion.
3. The relevant portion of section 3 is set
out hereunder:
"3(1) Subject to the next succeeding
sub-sections, no cultivating tenant shall be evicted from his holding or any
part thereof, by or at the instance of his Landlord, whether in execution of a
decree or order of a Court or otherwise (2) Subject to the next succeeding
sub-section, sub section (1) shall not apply to a cultivating tenant- (a) who,
in the areas where....................
if in arrear at the commencement of this Act,
with respect to the rent payable to the landlord, does not pay such rent within
six weeks after such commencement or who in respect of rent payable to the
landlord after the commencement of this Act, does not pay such rent within a
month after such rent becomes due; or (aa) who, in the other areas of the State
of Madras, if in arrear at the commencement of this Act, with respect to the
rent payable to the landlord and accrued due subsequent to the 31st March 1954,
162 does not pay such rent within a month after such commencement, or who in
respect of rent payable to the landlord after such commencement, does not pay
such rent within a month after such rent becomes due; or (b) xx xx xx (c) xx xx
xx (d) xx xx xx Explanation I- xx xx xx Explanation II- xx xx xx Explanation
III- xx xx xx Explanation IV- xx xx xx "(3)(a) A cultivating tenant may
deposit in Court the rent or, if the rent be payable in kind, its market value
on the date of deposit, to the account of the landlord- (i) in the case of rent
accrued due subsequent to the 31st March 1954, within a month after the
commencement of this Act;
(ii) in the case of rent accrued due after
the commencement of this Act, within a month after the date on which the rent
accrued due.
"(b) The Court shall cause notice of the
deposit to be issued to the landlord and determine, after a summary enquiry,
whether the amount deposited represents the correct amount of rent due from the
cultivating tenant. If the Court finds that any further sum is due, it shall
allow the cultivating tenant such time as it may consider just and reasonable
having regard to the relative circumstances of the landlord and the cultivating
tenant for depositing such further sum inclusive of such costs as the Court may
allow. If the Court adjudges that no further sum is due, or if the cultivating
tenant deposits within the time allowed such further sum as is ordered by the
Court, the cultivating tenant shall be deemed to have paid the rent within the
period specified in the last foregoing sub-section. If, having to deposit a
further sum, the cultivating tenant fails to do so within the time allowed by
the Court, the landlord 163 may evict the cultivating tenant as provided in sub-
A section (4).
"(c) xx xx xx Explanation I- xx xx
xx" "(4)(a) Every landlord seeking to evict a cultivating tenant
falling under sub-section (2) shall, whether or not there is an order or decree
of a court for the eviction of such cultivating tenant, make an application to
the Revenue Divisional officer and such application shall bear a court-fee
stamp of one rupee.
(b) on receipt of such application, the
Revenue Divisional officer shall, after giving a reasonable opportunity to the
landlord and the cultivating tenant to make their representations. hold a
summary enquiry into the matter and pass an order either allowing the
application or dismissing it and in a case falling under clause (a) or clause
(aa) of sub-section (2) in which the tenant had not availed of the provisions
contained in sub-section (3), the Revenue Divisional officer may allow the
cultivating tenant such time as he considers just and reasonable having regard
to the relative circumstances of the landlord and the cultivating tenant for depositing
the arrears of rent payable under this Act inclusive of such costs as the may
direct. If the cultivating tenant deposits the sum as directed, he shall be
deemed to have paid the rent under sub-section (3) (b). If the cultivating
tenant.
fails to deposit the sum as directed, the
Revenue Divisional officer shall pass an order for eviction." An analysis
of the section clearly leads to certain indisputable propositions. Sub-section
(I) creates a bar against the eviction of a cultivating tenant from his holding
or any part thereof, by or at the instance of this landlord, even though the
latter seeks to do so in execution of a decree or order of a Court. This bar is
subject only to the provisions of sub-section (2), (3) and (4). Sub-section (2)
enacts an exception to sub-section (I) and lays down inter alia that
sub-section (I) shall not apply to a cultivating tenant who conforms to the
description in clause (a) or (aa) of sub-section (2). Both the clauses last
mentioned cover tenants who are in arrears in regard to the payment of rent at
the commencement of the Actor who fail to pay rent falling due after such
commencement within a month 164 after its becoming due. Sub-section (3) enables
a cultivating tenant to deposit arrears of rent in Court and further provides
that after notice of such deposit has been given to the landlord, the Court
would embark on a summary inquiry and then adjudge whether any further sum is
due to the landlord. If the Court finds that a further sum is due, "it
shall allow the cultivating tenant such time as it may consider just and
reasonable having regard to the relative circumstances of the landlord and the
cultivating tenant for depositing such further sum inclusive of such costs as
the Court may allow". If the cultivating tenant fails to pay the sum
determined by the Court to be due under sub-section (3) the landlord
"may" evict the cultivating tenant as provided in sub-section (4).
Sub-section (4) then states that a landlord seeking to evict a cultivating
tenant falling under sub-section (2) shall make an application to the RDO who
shall, after giving a reasonable opportunity to the landlord and the
cultivating tenant to make their representations, hold a summary inquiry into
the matter and pass an order either allowing the application or dismissing it.
The sub- section further provides that if the case falls under clause (a) or
(aa) of sub-section (2) in which the tenant has not avail of the provisions
contained in subsection (3) the RDO may allow the cultivating tenant such time
as he considers just and reasonable having regard.........
4. Now as I read sub-section (4), it gives
the RDO power either to allow the application of the landlord or to dismiss it
after he has held a summary enquiry into the matter. If the application is
allowed an order of eviction has to be passed. If it is dismissed the
proceedings again come to an end. However, if the ground of eviction is non-payment
of rent, the RDO is closed with power to allow the cultivating tenant to
deposit the arrears and costs as directed. The power is discretionary and,
while exercising the same, it is not incumbent on the RDO to grant time. If the
legislature intended to make it obligatory on the part of the RDO to fix a time
for deposit of the arrears in all cases covered by clause (a) or clause (aa) of
sub-section (2) there is no reason why it should have used the word
"may" in relation to the grant of time. Support for this view is
available in clause (b) of sub-section (3) wherein, the legislature has directed:
"If the Court finds that any sum is due
it shall allow the cultivating tenant such time as it may consider just and
reasonable.... " (emphasis supplied) 165 In this situation it must be held
that while the opportunity of depositing the arrears of rent cannot be denied
to a cultivating tenant during the course of proceedings under sub-section (3),
the same is not available as of right under clause (b) of sub-section 4. The
difference in the language used by the legislature is significant and not
without purpose. The intention of the legislature appears to be that normally a
defaulting tenant must seek the help of the Court all by himself and that if he
does so he must be protected;
but that a defaulting tenant who waits for
payment of rent till he is sought to be evicted by the landlord is not
necessarily entitled to the same protection. Circumstances may exist which may
place him at par with a tenant covered by sub-section (3) but then it may not
necessarily be so.
That is why it is left to the discretion of
the . C RDO to grant time to the cultivating tenant or to deny him that
opportunity. An example of a case in which no time should be allowed would be
that of a tenant who, although in affluent circumstances at all relevant point
of time, has failed to make payment of rent year after year in spite of
repeated demands from an otherwise indigent landlord and whose conduct is,
therefore, contumacious calling for no sympathy or concession. The extension to
him of the same facility which is afforded to a willing tenant under
sub-section (3) would be uncalled for and in fact unjust.
Nor do I find why the word "may"
occurring in clause (b) of sub-section (4) be not given its ordinary meaning as
denoting the conferment of a discretion on the RDO and be equated with "shall"
so as to make it obligatory on him to grant time to the cultivating tenant.
5. Subject to the disagreement expressed by
me above I concur with the judgment of Desai, J.
MISRA, J. I agree with my learned brother,
Koshal, J.
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