Madras High Court
Sivagnanam vs Natesan Chettiar And Anr. on 11 November, 1994
Equivalent citations: (1995)1MLJ393
ORDER Thanikkachalam, J.
1. This revision is directed against the order passed in M.P. No. 16 of 1993 in P. No. 850 of 1992. The Cultivating tenant is the petitioner herein. The landlord filed a petition for eviction on the ground of arrears of rent under Section 3(4)(a) of the Tamil Nadu Cultivating Tenants (Protection from Eviction) Act, 1961 (hereinafter referred to as 'the Act'). The said eviction petition was filed on 20.7.1992. In the said petition, the landlord claimed that the rent is due for four years from 1988-89 to 1991-92, amounting to Rs. 25,935. The Revenue Court, on considering the facts, arising in this case directed the tenant to deposit a sum of Rs. 25,935 on or before .13.5.1993 and produce the challan before the court on 13.5.1993. Since the arrears of rent was not paid, M.P. No. 16 of 1993 was filed by the landlord on 22.6.1993 under Section 3(4)(b) of the Act. The order of eviction was passed in this application on 13.9.1993, since a sum of Rs. 25,935 was not deposited as directed earlier. It is against that order, the tenant is in revision before this Court.
2. Learned Counsel appearing for the tenant/ petitioner herein submitted that even though the order of eviction was passed on 13.9.1993 in M.P. No. 16 of 1993, the tenant filed a petition on 21.10.1993, requesting the Revenue Court to extend the time for vacating from the land and he also undertook to pay the entire arrears of rent of Rs. 25,935 on the same day. On the petition an order was passed by the Revenue Court, postponing the eviction till 27.10.1993. In the meanwhile, the tenant filed the present revision before this Court on 25.10.1993. In the present revision, while granting interim stay, this Court directed the petitioner/ tenant to deposit the entire arrears of rent. The tenant deposited the entire arrears of Rs. 25,935 according to the order of this Court. In the above circumstances, it was submitted by the petitioner herein, that the entire arrears of rent was deposited in court during the operation of the stay of the order passed in M.P. No. 16 of 1993. It was, therefore, pleaded that inasmuch as the order passed by the Revenue Court was complied with, the eviction order passed by the revenue court is unsustainable. It is also the contention of the learned Counsel appearing for the petitioner that the order passed in M.P. No. 16 of 1993 by the Revenue Court, postponing the order of eviction was not communicated to the petitioner herein.
3. On the other hand, learned Counsel appearing for the respondent/landlord submitted that no revision was filed against the preliminary order passed in P. No. 850 of 1992: wherein the revenue court directed the tenant to deposit the entire arrears of rent on or before 13.5.1993. While so, it is not possible for the tenant to file a revision against the consequential order passed in M.P. No. 16 of 1993. However, learned Counsel appearing for the tenant submitted that inasmuch" as the order passed in M.P. No. 16 of 1993 is a consequential order, a revision will lie against the order passed in M.P. No. 16 of 1993, wherein he can question the validity of the order passed in P. No. 850 of 1992.
4. A similar question came up for consideration before a Division Bench of this Court in Kannappa Chettiar v. Ramachandran 93 L.W. 656, wherein this Court held as under:
The question that has to be considered in respect of the default, is not with reference to any date subsequent to the order of the Authorised Officer, but with reference to the date fixed by him prior to his passing the order for eviction. The section itself contemplates the Revenue Divisional Officer giving an opportunity to the tenant to deposit the arrears of rent within such time he considers just and reasonable and only if the cultivating tenant fails to deposit the same as directed, the Revenue Divisional Officer can pass an order for eviction. Consequently, the default in such cases must have occurred prior to the Revenue Divisional Officer passing an order for eviction and in terms of an earlier order either independent or conditional. In view of this, the default contemplated by the statutory provision is one occurring and existing on the date of the passing of the impugned order of eviction by the Regional Divisional Officer himself and not at any stage subsequent to the said order. If the cultivating tenant does no deposit the rent as directed, default has occurred and there is not question of that default being cured or wiped out by the tenant depositing the rent pursuant to any interim order of this Court during the pendency of the proceedings in the High Court pursuant to an interim order of the High Court will be one in compliance with the interim order of the High Court and can never be a deposit in compliance with the original order of the Revenue Divisional Officer. As a matter of fact, the High Court is not concerned in such proceedings with the original default committed by the cultivating tenant in payment of the rent to the landlord. It is because of this original default, the Revenue Divisional Officer directs the tenant to deposit the rent into the court before a particular date and the subject matter of the civil revision proceedings in the High Court therefore will not be the original default, but only the failure of the tenant to comply with the direction of the Revenue Divisional Officer. Once that failure is admitted and the consequential order of the Revenue Divisional Officer is unexceptionable, there will be no occasion for the High Court to give an opportunity to the cultivating tenant to comply with the original direction of the Revenue Divisional Officer to deposit the amount, because the original direction no longer stands and that direction has worked itself out in the form of the final order for eviction, which, on merits, is not challenged. If the matter is understood in this manner, certainly any deposit made by the tenant in terms of the interim order of stay passed by this Court staying the execution of the order for eviction passed by the Authorised Officer can never be tantamount to compliance with the conditional order passed by the Authorised Officer.
5. Admittedly, in the present case, the arrears of rent was not paid in accordance with the directions given in the order passed in P. No. 850 of 1992. In the application filed by the tenant dated 21.10.1993 execution of the eviction order was postponed till 27.10.1993, but no time was extended for depositing the arrears of rent. Therefore, admittedly the arrears of rent was net deposited within the time stipulated by the revenue court. The arrears of rent was said to be deposited in accordance with the order passed by this Court in the revision petition. In view of the Division Bench judgment of this Court (cited supra), such a deposit made by the tenant/ petitioner herein in accordance with the direction given by this Court in the revision petition would not render any assistance to the petitioner herein to escape from the order of eviction passed by the revenue court on the ground of default in payment of rent.
6. According to learned Counsel for the petitioner, the arrears of rent was claimed for the year from 1988-89 to 1991-92. It was submitted that the rent due for the year 1988-89 is barred by limitation. The eviction petition P. No. 850 of 1992 was filed on 20.7.1992. The rent due for the year 1988-89 is payable till the end of 30.6.1989. If that is so, on 29.6.1992, the rent due for the year 1988-89 would have been barred by limitation. But the petition for eviction was not filed on 30.6.1992, or on 1.7.1992. In the petition filed for eviction there is no explanation as to why the petition for eviction was not filed between 30.6.1992 and 20.7.1992. However, learned Counsel appearing for the respondent before this Court submitted that Act 41 of 1989 came into force on 1.10.1986 and it was in force till 31.3.1990. This Act prevented the landlord from filing a petition for eviction during that period. Hence the period from 1.10.1986 to 31.3.1990 should be added from 30.6.1992 and on this basis the petition tiled claiming arrears of rent is within the time limit. It remains to be seen that Act 41 of 1989 was in force from 1.10.1986 to 31.3.1990. To claim arrears of rent for the year 1988-89, the limitation starts from 30.6.1989 and ends on 29.6.1992. Act 41 of 1989 expired on 31.3.1990. It is not known as to what prevented the landlord to file the petition from 1.4.1990 till 20.7.1992. Even assuming that the rent for the period 1988-89 is barred by limitation, the landlord is entitled to claim the arrears of rent for rest of the period viz. 1989-90 to 1991-92.
7. Learned Counsel appearing for the landlord submitted that the tenant without challenging the preliminary order passed in P. No. 850 of 1992, he cannot file a revision against the order passed in M.P. No. 16 of 1993. On the other hand, learned Counsel appearing for the tenant submitted that order passed in M.P. No. 16 of 1993 is consequential and, therefore, in a revision filed against the order passed in M.P. No. 16 of 1993, the tenant can challenge the order passed in P. No. 850 of 1992. A similar question came up for consideration before this Court in Singaravelu Pillai v. Subramania Kurukkal, 97 L. W. 200. According to the facts arising in that case, an ex parte preliminary order was passed by the Revenue Court in a petition for eviction filed on the ground of default in paying the arrears of rent, holding that the tenant was liable to pay the arrears of rent as claimed by the landlord and the preliminary order directed the tenant to deposit the arrears on or before a particular date and in the event of default, an order of eviction was directed to follow and there was a further direction to call the application again. An application for setting aside the ex parte order was filed in which a conditional order was passed and as the condition was not complied with, it was dismissed. Following the preliminary order, a final order for eviction was passed. This revision was preferred against the final order. It was contended for the respondent/ landlord that by way of a preliminary objection that when the preliminary order has been allowed to become final, it is no longer open to the tenant petitioner to challenge the legality of that order inasmuch as the present revision was filed against the later order of the Revenue Court which was a separate order. On these facts, it was held as under:
So far as the order dated 8.12.1981 against which the present revision petition is filed, it is based on the preliminary order, where under the petitioner was given time to pay the arrears. Thereafter there is nothing for the Revenue Court to consider as Section 3(4)(b) of the Tamil Nadu Cultivating Tenants Protection Act, the relevant portion of which is set out hereunder, is as follows:
...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 of eviction.
In the light of the above extracted provision the order of the Revenue Court cannot be said to be illegal calling for interference under Section 115 of the C.P.C.
It is argued by the learned Counsel for the petitioner that once the preliminary order is illegal in view of the judgment of the Supreme Court in Chinnamarkathian v. Ayyavoo, A. I. R. 1982 S. C. 137, the final order dated 18.12.1981 cannot stand. I am unable to agree. Assuming without conceding that the order, dated 24.11.1981 is not in accordance with the principles laid down by the Supreme Court in the above judgment, it will be at the most an illegal one and it cannot be considered to be non est in law. Unless that order is set aside and in the manner known to law, the order now challenged in the present revision petition cannot be said to be in any manner illegal. In the circumstances there are no merits in the civil revision petition and consequently, it is dismissed. But there will be no order as to costs.
Therefore, in the present case also, it is not open to the tenant/petitioner to challenge the order passed in P. No. 850 of 1992, against which no revision was filed. Thus the said order has become final.
8. Learned Counsel appearing for the petitioner submitted that there is non-application of mind on the part of the Revenue Court, while passing the order in P. No. 850 of 1992. Learned Counsel submitted that in the order, it is stated as though the order is passed under Sections 19(3) and 19(1)(d) of Tamil Nadu Public Trust Act. It was pointed out that the petition was not filed under Tamil Nadu Public Trust Act, but the order runs as though the same was passed in a petition filed under the said Act. It was therefore, submitted that the said order is vitiated by non-application of mind. Though in the first sentence of the order it is stated as such, in the rest of the order the Revenue Court dealt with the application for eviction on the ground of arrears of rent filed by the landlord, who is the respondent herein. Counsel for the respondent submitted that the mentioning of Sections 19(3) and 19(T)(d) of the Tamil Nadu Public Trust Act in the order passed in P. No. 850 of 1992 would have been by inadvertence. A thorough reading of the order would go to show that even though the first sentence runs like as stated by learned Counsel for the tenant, but the rest of the order deals with the petition filed for eviction on the ground of arrears of rent under Section 3(4)(a) of the Act. Further, as pointed out by the earlier decisions of this Court, even if the order passed by the Revenue Court in P. No. 850 of 1992 is defective, that cannot be challenged in the present revision since the order passed in P. No. 850 of 1992 has become final. This was the view taken by this Court in the above said decision. Therefore, the contention put forward by the petitioner that there is non-application of mind on the part of the revenue court in the order passed in P. No. 850 of 1992 is without any substance.
9. In view of the foregoing discussions, I hold that the order passed in M.P. No. 16 of 1993 is in order. Accordingly, I am not inclined to interfere with the same. This revision is dismissed. No costs.