Madras High Court
Swamimalai Devasthanam, Swamimalai vs T. Marimuth And Others on 20 January, 1998
Equivalent citations: 1998(1)CTC213, (1998)IIMLJ1
ORDER
1. The petitioner/ temple is the owner of the land in which the respondents have been doing cultivation in the respective lands. Admittedly, the tenants have to pay the rent for a number of Faslis. Taking advantage of the Act 38 of 1990, the respondents filed Applications before the Revenue Court to get benefits under the provisions of the said Act. According to the tenants, they are liable to pay the instalments as contemplated under the said Act, only with respect to the rent due, which is not time-barred. According to the landlord, while calculating the instalment amounts, the Revenue Court should take into consideration, the entire arrears of rent, irrespective of the fact whether it is time-barred or not.
2. But the Revenue Court in all these cases quantified the arrears of rent, excluding the amounts payable by the tenants, which cannot be recovered, as they had been time-barred. Aggrieved against the same, the landlord has filed the above Revisions, against the orders of the Revenue Court, Thanjavur.
3. These Civil Revision Petitions raise an important question whether the Revenue Court is correct in directing the cultivating tenant to deposit the arrears of rent only with respect to the amount which can be recovered by the landlord.
4. The Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act, Act 38 of 1990, was enacted with a view to give relief to the cultivating tenants by discharging them from payment of all arrears of rent payable to the landlord or public trust for the fasli year ending with the 30th June 1989 and for any previous fasli year and outstanding on the date of the publication of the proposed Act. If he pays the rent due for the current fasli year, i.e., the 1st July 1989 to the 30th June 1990, in full and one fourth of the total amount of arrears of rent (without interest) which accrued due to landlord or public trust for the period ending with the 30th June 1989 on or before the 3lst March 1991; or if he pays the current rent in full on or before the 31st March 1991 and one third of the total amount of arrears of rent (without interest) which accrued due to the landlord or public trust for the period ending with the 30th June 1989 in five equal annual instalments and the first instalment shall be paid on or before the 31st March 1991.
5. Section 4 of the Act gives option to the cultivating tenant for payment of rent which reads as foltows:-
"Option for payment of arrears of rent:-
(1) Any cultivating tenant who is in arrears of rent payable to the landlord for the fasli year ending with the 30th day of June 1989 and for any previous fasli year (hereinafter referred to as the said years) and outstanding on the date of the publication of this Act shall, within two months from the date of such publication, intimate his option in writing to the competent authority:-
(i) To pay the current rent and the one-fourth of the said arrears of rent in the manner specified in part II; or
(ii) to pay the current rent and the one-third of the said arrears of rent in the manner specified in part III;
(2) The option given under sub-section (1) shall be final"
6. Section 5(1) of the Act deals with the relief to be given to the tenant on such deposit, which runs as follows:-
"Relief for payment of arrears of rent:-
(1) All arrears of rent payable by a cultivating tenant to the landlord for the said years and outstanding on the date of the publication of this Act, shall be deemed to be discharged, whether or not a decree or order has been obtained therefor, if such cultivating tenant pays to the landlord or deposits in the court or before the competent authority, to the account of the landlord in the manner specified in sub-sections (2) and (3) -, (a) the current rent; and (b) the one-fourth of the total amount of arrears of rent for the said years without interest (hereinafter referred to as the one-fourth of the arrears of rent)
7. Section 7(1) and (2) of the said Act deals with the payment of instalments which is as follows:-
"Relief for payment of arrears of rent by payment in instalments:- (1) All arrears of rent payable by a cultivating tenant to the landlord for the said years and outstanding on the date of the publication of this Act, shall be deemed to be discharged, whether or not a decree or order has been obtained therefor, if such cultivating tenant pays to the landlord or deposits in the court or before the competent authority, to the account of the landlord in the manner specified in sub-section (2) and (3) -
(a) the current rent; and
(b) one-third of the total amount of arrears of rent for the said years without interest (hereinafter referred to as the one-third of the arrears of rent)"
8. In section 4 of the said Act, the significant expression is arrears of rent payable to the landlord for Fasli year ending with 30th June 1989 and for any previous fasli year (hereinafter referred to as the said years) and outstanding on the date of the publication of the Act. Even in Sections 5 and 7 of the Act, the expression used is all arrears of rent payable by the cultivating tenant to the landlord for the said years and outstanding on the date of the publication of the Act.
9. These expressions show all the arrears of rent due to the landlord on the date of the publication of the Act, irrespective of the Act whether it is time-barred or not. There is no need for construction that the Legislature meant was only such rent as could be recovered if the landlord was suing for recovery of rent, i.e., such rent as was not time-barred, when the intention of the Legislature and the language used thereon are explicit and unambiguous and they are not capable of making two interpretations. The principle is that under the Limitation Act only the remedy is barred and not the right of the landlord to recover the rent beyond the period specified in the Limitation Act is extinguished. When the provisions use the term 'all arrears' it would automatically mean that the amount payable is only the rent which was outstanding on the date of the publication of the said Act.
10. The word 'arrears' is defined in Concised Oxford Dictionary as 'outstanding debts', 'what remains not done'. So there cannot be any difficulty to come to the conclusion that under Sections 5 and 7 of the said Act, the tenant is bound to pay the current plus the instalments as prescribed therein calculated on the basis of the entire amount payable on the date of publication of the said Act irrespective of the fact whether it is time-barred or not. It never means that the tenant is liable to pay only the rent which not time-barred.
11. The learned counsel appearing for the respondents/ tenants relying on Section 12 of the said Act has submitted that in view of Section 12, the tenants cannot be directed to deposit the time-barred arrears, to invoke the benefits under the provisions of the Act, and, if such direction is given, the landlord will achieve his object in recovering the time-barred arrears, though he could not recover the same by filing a suit. According to the learned counsel, in view of the specific provision under Section 12 of the Act, other provisions could be read along with the said provision and benefits given to the tenants especially when the Act itself is meant only for the benefit of the tenants. I find it difficult to accept the contention raised by the learned counsel. Section 12 of the said Act reads as follows:-
"Arrears barred by limitation not to be revived:- Nothing in this shall be construed as reviving any claim for arrears of rent for any period before the date of the publication of this Act if such claim is barred by limitation on the said date under any law for the time being in force"
While dealing with similar contention, the Division Bench of this Court in Palaniswamy Gurukkal v. Kandappa Gounder, 1967 (II) M.L.J. 438 has held as following:-
"The question is whether a landlord could evict a tenant on the ground that he is in arrears of rent which is time barred. Where a landlord cannot, by resort to ordinary Court, recover arrears for a period of more than three years, for him to be allowed to achieve the same and indirectly by putting in an application for eviction, and evicting the tenant, if he does not pay the arrears of rent even for a period for which, if the claim is made in a civil Court, the claim would be barred by limitation, seems to be a thing not contemplated by law. It is argued that while the landlord cannot successfully claim arrears of rent for a period of more than three years, he cannot be prevented from evicting the tenant for not paying arrears which are found barred by limitation, because in such a case all that the landlord would succeed in getting is the land itself and not the arrears of rent for a period beyond three years. After all, the right to continue in possession of land is a very important right for a tenant. The Act itself was passed in order to safeguard the rights of the tenants. It seems to be perfectly legitimate view to take that a landlord cannot be allowed to evict a tenant for arrears due which he cannot recover, because in allowing the claim for arrears to become barred by limitation, it is the landlord that is at fault. There is some support for this view in the decision of the Privy Council in Hansraj Gupta v. Official Liquidators of Dhera Dun etc. Company, 1932 I.L.R.(54) All. 1067, where their Lordships held that the Liquidator of a company, by making an application of the Company Court under section 186 could not get over the period of limitation, which would apply if the suit were to be filed in the company's name. Of course, this is not a case where the landlord is enabled to recover time barred arrears of rent by means of an application under the Madras Cultivating Tenants Protection Act, but, in a way, it may compel the tenant to pay the time-barred arrears also, if he wants to continue in possession of the land. However, as this petition raises a very important question under the Madras Cultivating Tenants Protection Act, the papers will be placed before my Lord the Chief Justice for being referred to a Bench"
12. Pursuant to the order of reference in the abovesaid order of the Division Bench, the learned single Judge disposed of the case, holding as follows:-
"It is true that a direction by the Revenue Court to a cultivating tenant to pay arrears of rent for a number of years beyond the period of limitation would impose a heavy burden on him. But the answer to this contention is that such a tenant who has defaulted to pay rent for a long period is not really entitled to ask the Revenue Court to exercise its discretion not evicting him from his holding at the instance of the landlord. If in spite of it the Revenue Court thinks it fit to exercise its discretion even in the case of such a tenant, it is but reasonable that he should be asked to pay the entire arrears of rent which he would have to pay to avoid eviction on the ground of non-payment of rent"
13. Venkatarama Rao, J., as he then was, in Vamana Pai v. Venkata Naika, AIR 1936 Mad. 116 has held that the words 'rent in arrear' are wide enough to include the rent which the lessor may be unable to recover by reason of the bar of limitation.
14. In the decision in Mothaliyandan Chettiar v. Ranganathan, 81 L.W. 383, Ananthanarayanan,Chief Justice, as he then was, while construing the scope of the words 'arrears of rent' has held as follows:-
"Again, it may be pertinent to point out that in Vamana Pai v. Venkata Naika, A.I.R. 1936 Mad. 116 Venkatarama Rao, J., considered the words 'arrears of rent' as occurring in S. 114 of the Transfer of Property Act, to include the rent which the lessor may be unable to recover by reason of the bar of limitation. The point was very elaborately considered again with regard to Sec. 3(b) of the Madras Cultivating Tenants Protection Act, 1955, by Srinivasan, J., and Sadasivam, J, in Palaniswami Gurukkal v. Kandappa Gounder, 80 L.W. 305. The learned Judges cited Barrat v. Richardson And Croesswel, 1930 (I) K. B. 686 and held that the principle was that where in order to obtain relief, the party is required to pay or tender amounts due, that would include arrears outside the period of limitation. Indeed any contrary view would involve very great difficulties for the simple reason that a bar of limitation is a provision of statute mechanically curtailing the remedy, and not any part of law of contract itself, extinguishing the liability"
15. The Division Bench of this Court in Vellathi v. Smt. K.K. Thayammal, AIR 1958 Mad. 232 , while construing the words 'rent in arrears' has held as follows:-
"The next point is whether the tower Court was right in decreeing the time barred arrears also. Mr. Naidu urged that in should not have directed time barred arrears, especially when they were not claimed in the suit. Mr. Ramamurthi urged that when granting the extraordinary relief against forfeiture, the lower Court had certainly jurisdiction, as it held, to decree the time barred arrears also, and relied on the ruling in Gurupur Vamana Pai v. Venkata Naika, 160 I.C. 530: AIR 1936 Mad. 116 (G). We agree, as the decree regarding such time barred arrears was fully warranted by considerations of justice, equity and good conscience under which the relief against forfeiture was granted"
16. The Apex Court also had an occasion to consider the scope of the word 'entire amount of rent due' and held as follows; in Khadi Gram Udyog v. Ram Chandraji, :-
"The question that arises for consideration in this appeal is whether the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. There is ample authority for the proposition that though a debt is time-barred, it will be a debt due though not recoverable, the relief being barred by limitation. In Halsbury's Laws of England (3rd Ed.) Vol.24 at p.205, Article 369, it is stated 'except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a creditor whose debt is statute-barred has any means of enforcing his claim other than by action or set-off, the Act does not prevent him from recovering by those means. The Court of Appeal in Curwen v. Milburn, 1889 (42) Ch.D. 424 Cotton, L.J.Said:
'Statute-barred debts are dues, though payment of them cannot be enforced by action' The same view was expressed by the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd v. The State of Bombay & others, 1958 S.C.R. 1122 where it held that the statute of limitation only bars the remedy but does not extinguish the debt, except in cases provided for by section 28 of the Limitation Act, which does not apply to a debt. Under section 25(3) of the Contract Act a barred debt is good consideration for a fresh promise to pay the amount. Section 60 of the Contract Act provides that when a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt. In a full Bench decision of the Patna High Court Ram Nandan Sharma and anr. v. Mt. Maya Devi and others, , Untwalia, C.J., as he then was. has stated ' there is a catena of decisions in support of what has been said by Tek Chand, J., in First National Bank v. Sant Lal, that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the right'. The law is well-settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due the protection is no more available. We agree with the view taken by the trial court and the High Court of Allahabad that the words 'entire amount of rent due' would include rent which has become time-barred"
17. Section 12 of the said Act only speaks about the bar on the right of the landlord to the time-barred arrears as the same shall not be revived pursuant to the provisions of the Act. This provision has been introduced only because the tenant has been directed to deposit the portion of the entire arrears including the time-barred arrears. In view of the said direction to pay even the time-barred arrears, the landlord should not think that his rights had been revived to recover the time-barred arrears by filing a suit. Only to safeguard the interest of the tenants, the said provision has been introduced in the statute. The provision under Section 7(2) of Part - III has to be invoked and complied with independently and the same is not subject to Section 12 of the said Act. So, the contention that since the landlord has been prohibited from taking recovery proceedings to recover the time-barred arrears the tenants cannot be directed to pay the portion of the said amount under the said Act also cannot be sustained.
18. In view of the above, the orders of the Revenue Court excluding the time-barred arrears of rent cannot be sustained, and they are set aside. Consequently, these Revisions are allowed. No costs.