Full Judgment Text
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PETITIONER:
CHINNAMARKATHIAN ALIAS MUTHU GOUNDER & ANOTHER
Vs.
RESPONDENT:
AYYAVOO ALIAS PERIANA GOUNDER & OTHERS
DATE OF JUDGMENT10/12/1981
BENCH:
DESAI, D.A.
BENCH:
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 Tamilnadu) 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.
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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
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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]
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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]
JUDGMENT:
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,
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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.
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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
a 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
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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
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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 envi-
155
sage 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.
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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
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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 estop 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
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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 are 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 courts 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-
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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
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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
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jurisdiction to prescribe its own time calling upon the
tenant to deposit the amount to repair the default. That
question be kept open but in the facts of this case the
amount having been deposited
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way 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.
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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
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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,
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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
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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
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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 Act or who fail
to pay rent falling due after such commencement within a
month
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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
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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)
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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
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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.
N.V.K. Appeals allowed
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