Madras High Court
Mariyayee Ammal vs Janab Mohammed Sheriff on 3 August, 1988
Equivalent citations: (1988)2MLJ196
ORDER Srinivasan, J.
1. These two revision petitions are at the instance of a cultivating tenant who is in enjoyment of two different portions of the same survey number under the same landlord.
2. The petition was filed for eviction under Section 3(4)(a) of the Tamil Nadu Cultivating Tenant's Protection Act for non-payment of rent for the year 1980-81. The petitioner herein had filed a counter in the petition for eviction on 12.11.1981 contesting the application. The petition was not taken up for hearing as the Revenue Court had been abolished. The Revenue Court was re-constituted some time in December, 1985. Notices were issued to counsel on record. The matter was posted to 14.10.1986 and the advocate for the petitioner had received notice on 18.9.1986. As she was not present on 14.10.1986, the matter was adjourned to 28.10.1986, 18.11.1986, 21.11.1986, 9.12.1986, 19.12.1986, 13.1, 1987 and finally to 20.1.1987. On all these dates neither the petitioner nor her counsel was present in Court. On 20.1.1987, the petitioner was set ex parte and the case was adjourned for evidence on the side of the respondent. On 27.1.1987, the respondent was examined in chief and the case was adjourned for orders. On 17.3.1987 the Revenue Court passed an order directing the petitioner herein to deposit a sum of Rs. 2,160 into the Treasury and produce the challan before the Court on or before 30.4.1987.
3. As there was no deposit, the respondent filed E.P.No. 206 of 1987 for executing the order. In that petition, notice was ordered to the petitioner herein and she was served on 27.8.1987. The matter was taken up on 15.9.1987 and the petitioner herein was present in Court. The Revenue Court passed an order directing eviction of the petitioner herein as she had not paid the arrears by then. He also directed the Special Revenue Inspector (Enforcement) attached to that Court to carry out the eviction after observing the usual formalities.
4. Thereafter the petitioner filed M.P.No. 345 of 1987 for setting aside the order dated 17.3.1987 directing her to deposit a sum of Rs. 2,160. According to her, she was not aware of the proceedings and the order made therein. She had also applied for stay of execution till the disposal of the said application. All the applications were heard by the Revenue Court and an order was passed on 24.11.1987, dismissing them. Admittedly, no revision has been filed against the order dated 24.11.1987 and that has become final.
5. These two revision petitions are against the orders dated 15.9.1987 made by the Revenue Court. The contention of learned Counsel for the petitioner is that the Revenue Court had no jurisdiction to pass an order of eviction on 15.9.1987 in an application filed for execution. Learned Counsel submits that there was no prior order of eviction passed by the Revenue Court and there was no order to be executed and consequently, the execution petition filed by the respondent was not maintainable.
6. It is true that the order passed by the Revenue Court on 17.3.1987 was only one directing the petitioner herein to deposit a sum of Rs. 2,160 on or before 30.4.1987. There was no order of eviction as such on that date. There was no order of eviction even subsequent to that date before 15.9.1987. However the respondent herein purported to file an application for executing as if there was an order of eviction. In that application, notice had been served on the petitioner and she appeared before the Court at the time of the enquiry. She could have certainly pointed out to the Revenue Court that she was not aware of the proceedings prior to 17.3.1987 or the order passed on 17.3.1987. She could have either prayed for more time for deposit or could have moved the Revenue Court to have the order set aside. It is seen from the order dated 24.11.1987 that no representation was made on behalf of the petitioner to that effect even though the petitioner was present in Court on 15.9.87. The statement found in the order of the Revenue Court dated 24.11.1987 runs as follows:
On that date she had no representation to make nor did she pay the arrears and hence, eviction was ordered.
This statement has to be accepted as correct as the order dated 24.11.1987 has not been challenged by the petitioner herein though she was aware of the same.
7. Section 3(4)(b) of the Tamil Nadu Cultivating Tenant's Protection Act reads thus:
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). If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction.
There is no provision in the Rules making the procedure prescribed in the Civil Procedure Code applicable to the proceedings for execution of the order of eviction passed by the Revenue Divisional Officer. Rule 8 of the Rules framed under the Tamil Nadu Cultivating Tenant's Protection Act is to the effect that every Court constituted under the Act shall have the power exercisable by a civil Court in the trial of the suits and the proceedings of the Court shall be summary and shall as far as possible be governed by the provisions of Civil Procedure Code with regard to matters enumerated therein Execution of the order passed by the Revenue Court is not one of the matters enumerated in Rule 8. Rule 19 of the Rules is as follows:
Any order, decision or award passed by the Revenue Divisional Officer under the Act shall be enforceable by an Officer of the Revenue Department not lower in rank than a Revenue Inspector.
From a reading of Section 3(4)(b) of the Tamil Nadu Cultivating Tenant's Protection Act along with Rule 10, it follows that there is no provision either in the Act or in the Rules for filing a separate execution petition for executing the orders passed by the Revenue Court. Once an order of eviction is passed by the Revenue Court, it can be straightaway executed by an Officer of the Revenue Department not lower in Yank than a Revenue Inspector, on production of such order of eviction. The entire proceedings being summary, there is no necessity for a separate petition for execution or for adopting a procedure similar to the one found in Order 21 of the Code of Civil Procedure.
8. In this case, the respondent has filed E.P. No. 206 of 1987 even though there was no order of eviction at that time. Just because the respondent filed a petition which is not provided for in law it cannot be rejected straightaway. That execution petition should be really treated as a reminder to the Revenue Court to call the main petition for eviction and pass a final order thereon. It could have been done by a memo. Just because a petition was filed, the petitioner could not be denied relief. The fact remained that the main petition for eviction was not finally disposed. The order directing deposit passed on 17.3.1987 could not conclude the matter. The Revenue Court ordered notice on the so called E.P., rightly, and passed orders on 15.9.1987 after the petitioner herein was served. The order passed on 15.9.1987 specifically says that 'the eviction is ordered'. Hence, the order dated 15.9.1987 is the order of eviction contemplated by Section 3(4)(b) of the Tamil Nadu Cultivating Tenant's Protection Act. That order of eviction can be executed by an Officer of the Revenue Department not lower in rank than a Revenue Inspector. That is the final order passed on the main petition for eviction, viz. M.P.No. 960 of 1981. If that order has been passed without notice to the petitioner herein, then it could be said to be invalid or void, but in the present case, the petitioner had notice of the proceedings and she had appeared before the Revenue Court on 15.''.1987 and the order was passed only in her presence.
9. Learned Counsel for the petitioner relies upon a decision of Justice Ratnam in C.R.P. No. 164 of 1981. In that case, in an application under Section 3(4)(a) of the Tamil Nadu Cultivating Tenant's Protection Act, an endorsement was made by the tenant agreeing to pay the arrears of rent in four months time. The Revenue Court passed an order on 18.4.1980 directing the tenant to deposit the rent on or before 31.5.1980. On 6.6.1980, the tenant filed two applications before the Revenue Court, one for the purpose of condoning the delay in filing the application for extension of time and the other for extension of time by two months. On that date, the tenant's counsel paid sum of Rs. 100 to counsel for the landlady and that amount was received without prejudice by landlady's counsel. An endorsement was made on the petition for extension of time. The delay in filing the application for extension of time was condoned and the tenant was permitted to deposit a sum of Rs. 400 on or before 20.6.1980 and the balance on or before 5.7.1980. On 13.12.1980, the landlady filed an application before the Revenue Court bringing to its notice that the tenant had not made any payment as per the orders and sought for an order of eviction. On that date, the landlady also filed an application under Order 21, Rule 11 of the Code of Civil Procedure praying for direction to tenant to deliver possession of the property. On 20.12.1980, the Revenue Court passed an order 'evict' and allowed the petition filed by the landlady for delivery of possession. It was that order of the Revenue Court which was challenged, before Justice Ratnam. The learned Judge took the view that the order dated 20.12.1980 evicting the tenant was wholly unsustainable as there was no notice to the tenant before the passing of that order. The reasoning of the learned Judge is that there was no prior order of eviction as such before that date and there was only an order of eviction by the Revenue Court, an opportunity ought to have been given to the tenant before passing an order of eviction. As the Revenue Court failed to do so, that order dated 20.12.1980 was held to be illegal and unsustainable. Consequently, that revision petition was allowed.
10. That judgment will not apply to the facts oft his case. Admittedly the petitioner was served with notice of the so called E.P. on 27.8.1987 long before the order dated 15.9.1987. As I have stated earlier, she was present before the Revenue Court on 15.9.1987. The petitioner had sufficient opportunity to make her representations to the Revenue Court with regard to the ex parte order dated 17.3.1987. Having failed to do so, it is not open to the petitioner to contest the validity of the order dated 15.9.1987. In fact, the last part of Section 3(4)(b) of the Act is mandatory and the Revenue Court has no option but to pass an order of eviction once it is found that the order directing deposit of rent has not been complied with. When the petitioner did not choose to apply for extension of time to deposit the rent or seek to set aside the order dated 17.3.1987, the only course open to the Revenue Court on 15.9.1987 was to pass an order of eviction. Having regard to the provisions in the Act and the Rules, I consider that the order passed on 15.9.1987 is an order of eviction made by the Revenue Court within the meaning of Section 3(4)(b) of the Tamil Nadu Cultivating Tenant's Protection Act and it can be executed by an Officer of the Revenue Department not lower in rank than a Revenue Inspector.
11. Before parting with the case, I think it is necessary to make an observation with regard to the procedure adapted by the Revenue Court in the present case. A similar procedure has been adopted in some other case also. It is not desirable for the Revenue Court to close petitions for eviction finally with orders of deposit without concluding the proceedings by passing final orders in the main proceeding itself as contemplated by the Section. It will be more desirable and appropriate for the Revenue Court to fix a date for calling the main petition beyond the time given to the tenant for depositing the arrears of rent. On that date, if the main petition is called and the Revenue Court finds that the tenant has not deposited the arrears of rent as directed by the earlier order, then the Revenue Court shall pass an order of eviction in the main proceedings. If on the other hand the tenant had complied with the. order of deposit, the petition for eviction should be dismissed. Instead of doing so, as in the present case, if the Revenue Court closes the main petition with an order of deposit without specifying the next calling date, the landlord is obliged to file an application and bring the matter again before the Revenue Court in which notice has again before the Revenue Court in which notice has to be necessarily issued to the tenant once again. The main proceedings remain unconcluded by a mere order of deposit. That is not the procedure contemplated by the Section. The Revenue Court in all cases of eviction under Section 3(4)(a) of the Tamil Nadu Cultivating Tenant's Protection Act should on arriving at a finding that the tenant is in arrears pass in the first instance an order directing the tenant to make a deposit within a particular time and post the matter again to a date beyond the time granted to the tenant. On such date, if it finds that the tenant has not made the deposit, the Revenue Court shall pass an order of eviction.
12. On the facts of this case there is no illegality in the order dated 15.9.1987. These two revision petitions fail and are, therefore, dismissed. There will be no order as to costs.