Madras High Court
Janab K. Mohamed Hussain, Commissioner ... vs Dalavai A. Ramaswami Mudaliar And 53 ... on 21 February, 1997
Equivalent citations: 1997(3)CTC573
Author: D. Raju
Bench: D. Raju
ORDER D. Raju, J.
1. The above second appeal has been filed by the 6th plaintiff who lost before both the courts below.
2. The suit was filed for restraining the defendants 1 to 62 by means of a permanent injunction from harvesting the standing and future crops and removing the entire yield from the thrashing floor without delivering the landlord's share at the thrashing floor. The case of the plaintiffs, was that the lands in question are owned by the plaintiffs, that defendants 63 to 67 represent the share of Annathane Chathiram at Sivalaneri which performs Annathana Charities, that the plaintiffs have 100- 1/2 share and defendants 63 to 67 have got 43- 1/2 shares out of the total of 114 shares, that defendants 1 to 62 cultivate various plots of lands as indicated in the plaint and at the time of harvest, the tenants are bound to give advance information to the plaintiff about the date of harvest and divide the produce at the thrashing floor from out of yield after payment of Kanganam and other mamool expenses to the plaintiffs or their men and the remaining produce only will be taken away by the tenants. Complaining that the tenants have not been doing so and such things are done as a concerted move by combination of all the defendants 1 to 62 to defeat the rights of the plaintiffs, the suit for the relief noticed supra, came to be filed.
3. The 60th defendant filed a written statement which was adopted by other defendants contending that the suit was not maintainable in law or on facts, that the extent of land under cultivation of each defendant and the quantum of rent payable by each, have not been correctly given, that there was no agreement to pay besides the rent, that in case of water scarcity or failure of crop due to pests, remission has to be given and there was no agreement to pay Kanganam or other mamool expenses out of the gross yield and the defendants have been paying rent without any default regularly and the alleged conspiracy among tenants is merely an invention of the plaintiff without any basis therefor. It is also contended that there was no agreement that the defendants cannot remove the yield from the thrashing floor without delivering the landlords, share and that the plaintiffs are bound by the Tamil Nadu Cultivating Tenants Protection Act.
4. On the above claim and counter-claim the suit came to be tried and only oral evidence has been adduced on both sides. After considering the evidence on record, the learned trial judge by his judgment and decree dated 13.2.1990 dismissed the suit holding that the plaintiffs have not produced the rental agreements to substantiate the claim of quantum of rent claimed, that though the defendants are liable to give information to the landlord of the date of harvest since the quantum of rent payable by each of them has not been proved, the suit claim cannot be decreed and that the plaintiffs, not having claimed for recovery of any arrears which is indicative of the fact that the tenants are regular in payment, it is not open to the plaintiffs to seek injunction against the tenants who are entitled to statutory right of paying rent even after a period of one month from the date of harvest. In coming to such a conclusion, the trial court also adverted to the fact that the plaintiffs have been accepting the rent in money value and the said position has been admitted by both P.Ws. 1 and 2 and there has been no demand from the plaintiffs to pay the rent in kind and consequently, in the absence of any such demand, the conventional method of payment in cash having also been proved, it is not open to the plaintiffs to call upon the defendants-tenants to pay the rent in kind since such payment in kind can be insisted only in certain circumstances. Relying upon section Section 41(h) of the Specific Relief Act, 1963 and having regard to the availability of more efficacious remedy to the plaintiffs to enforce their rights the relief of injunction came to be rejected. The learned trial Judge has also adverted to the fact that in the event of the defendants committing default, it is open to the landlord to approach the Rent Court for appointment of a Revenue Inspector for sharing the produce at the thrashing floor and that therefore, the availability of such effective remedy also disentitled the plaintiffs from getting any injunction. The plaintiffs pursued the matter on appeal before the District Court, Tirunelveli, in A.S. No. 152 of 1980. The learned First Appellate Judge the appeal confirming the judgment and decree of the learned trial Judge. The First Appellate Court was of the view that once it is found that defendants 1 to 62 are cultivating tenants, a suit for injunction cannot be entertained. All the more so, since according to the learned first Appellate Judge, tenancy laws are changing every day, it would be unfair to give a permanent injunction against the cultivating tenants that they should pay a particular pattom of lease paddy as put forward by the plaintiffs. Aggrieved, the above second appeal has been filed.
5. Mr. Narayanan, learned counsel appearing for the appellant contended relying upon the decisions reported in Periathambi Goundan v. District Revenue Officer, Coimbatore, 1980 (II) M.L.J. 89; Ramasamy Raja v. Ellanna Gounder, 73 LW; Thirumalaisamy Nadar v. Villagers of Kadambur Athur Tk. rep. by their Nattamaikarar Nallathambi Moonanar and Ors., ; S. Soosai Udayar v. Andiyannan and Ors., 1959 (I) M.L.J. 195 that there is nothing in the provisions of the Tamil Nadu Cultivating Tenants (Payment of Fair Rent) Act, 1956 ousting the jurisdiction of a civil court for the relief of the nature in question which according to the learned counsel for the appellant, is based on the common law right, of the landlord found recognised in Section 7 of the Act and consequently, the rejection of the claim for the reason adduced particularly by the first appellate court, that the claim was not maintainable before civil court, is erroneous in law and is liable to be set aside. The respondents, though duly served with notice of this appeal have not chosen to enter appearance to defend the claim by engaging counsel.
6. I have carefully considered the submissions of the learned counsel for the appellant in the light of the relevant material placed before the court bellow and the judgments of both the courts below which are the subject matter of challenge in this appeal. The decisions relied upon by the learned counsel would no doubt go to show that the courts could not presume as a matter of course ouster of jurisdiction of civil court and that unless such ouster of civil court's jurisdiction is specific and categorical, the right of a citizen to have recourse to the competent civil court to vindicate his rights, cannot be said to have been ousted by a mere inference. At the same time, I am unable to agree with the stand taken for the appellant by his learned counsel that the suit in question came to be dismissed solely on such ground of maintainability or ouster of jurisdiction as noticed in the earlier portion of this judgment. The courts below have chosen to reject the claim more on the desirability or feasibility of granting injunction on the terms and lines sought for, rather than on the ground that they had no such jurisdiction to countenance or consider or grant such relief. The learned trial judge has particularly chosen to place strong reliance upon Section 41(h) of the Specific Relief Act, 1963 which goes to show that injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode or proceeding except in case of breach of trust. The courts have laid stress on the purport of the words equally efficacious to mean capacity or prospect of securing the intending effect or result by such other remedies. The learned trial Judge in the context of such stipulation, has elaborately dealt with the practice of the plaintiff hitherto receiving rents in cash value. The absence of any specific demand to cause liability upon the tenants to share the produce on the thrashing floor and the absence of proof of the specific amount of rental have been assigned as grounds to deny the relief of injunction to the plaintiffs. The learned first appellate judge though made a cursory consideration of the issue, has added one more aspect namely that with every changing laws varying frequently inter se the right of the landlord and tenants in the statute, law, it would be inappropriate and unjust to grant permanent injunction on the terms and in the lines sought for by the plaintiffs in this case. This reasoning of the learned First Appellate Judge could not be said to be either an erroneous one or inappropriate for the reason that such order of permanent injunction if granted, could not be properly enforced or executed for compliance without violating some or the other of the law in force from time to time regulating the inter se rights of landlord and tenant.
7. Strong reliance has also been placed by the learned counsel for appellant that the provisions of Section 7 of the Act, which according to the learned counsel has been enacted in recognition of the common law rights, of the land owner, in my view, cannot be considered in isolation. It has to be construed in the light of the other provisions such as Section 3 and more particularly Section 5 and the right to share the produce in kind, is not an absolute or unqualified one but varying one available under certain given circumstances, depending upon the facts and circumstances of the case and the terms of the agreement and the exercise of option as envisaged under Section 5 of the act. There is absolutely no material on record to specifically prove or satisfy the requirements of these various provisions in this case to claim or insist upon such rights and in the absence of such compliance or proof to show that the land lord in question have acquired a right to have the produce shared on the thrashing floor, the denial of relief of permanent injunction on the terms prayed for, appears to be quite in accordance with law and if at all, it is only grant of any such orders as prayed for by the plaintiffs would lead to miscarriage of justice as indicated by the courts below. The relief of injunction, it is well settled, is a discretionary one though such discretion has to be judicially exercised and cannot be dealt with in an arbitrary or unreasonable manner. Taking into account the facts and circumstances of the case as found by the learned trial judge and considering them in the context of the principles of law adverted to above, I am of the view that the denial of the relief of permanent injunction in the manner and on the terms sought for by the plaintiffs, cannot be said to be either patently illegal or vitiated by any perversity of approach in the matter of exercise of judicial discretion vested with the courts, warranting the interference of this Court.
8. For all the reasons stated above, I am of the view that no interference is called for in this appeal. The second appeal therefore fails and shall stand dismissed.