Madras High Court
Maruthiah Nattar vs M.K. Khan on 21 March, 1996
Equivalent citations: (1996)2MLJ189, 1996 A I H C 3655, (1996) 2 MAD LJ 189
ORDER S. Jagadeesan, J.
1. The petitioner is the cultivating tenant under the respondent in C.R.P. No. 2095 of 1988. As he has committed default in paying the rent for the faslis 1392 to 1396, the respondent filed eviction petition in P.No. 53 of 1987 before the Revenue Court, Thanjavur. The Revenue Court ordered eviction on 7.7.1988. Aggrieved by the order of eviction, the petitioner preferred C.R.P. No. 2093 of 1988 and obtained an order of injunction. During the pendency of the revision, as per the conditional order, the petitioner paid the arrears of rent in two instalments i.e., Rs. 5,000 on 30.8.1988 and the balance of Rs. 4,372.50 on 1.2.1989. Subsequently for on 27.9.1993 when the revision petition was listed for hearing, the counsel for the petitioner did not appear and hence the same was dismissed for non prosecution, on 27.9.1993.
2. After the disposal of C.R.P. No. 2093 of 1988 the respondent filed E.P. No. 121 of 1994 seeking to enforce the order of eviction passed by the Revenue Court in P.No. 53 of 1987. The Revenue Court by order dated 23.12.1994 had dismissed the execution petition, taking into consideration of the fact that the petitioner had paid the arrears for the faslis 1392 to 1396. Against this order, the respondent herein has filed C.R.P. No. 87 of 1995.
3. The Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act (Act 38 of 1990) hereinafter referred to as 'the Act' came into force to provide the relief to cultivating tenants in respect of certain arrears of rent. After the said Act came into force, the petitioner herein filed P.No. 2 of 1991 before the Revenue Court, Thanjavur, claiming the benefits under Section 5(2) of the Act stating that he is in arrears for faslis 1397 and 1398. As per Section 5(2) of the said Act, if the tenant pays the rent for the current fasli along with 1/4 of the arrears of rent, he will be entitled to remain in possession and even if there is any order of eviction, such order has to be set aside. The Revenue Court by order dated 22.4.1991 had accepted the plea of the petitioner and directed him to deposit the amount of Rs. 193 which is the difference of amount, on or before 22.4.1991, since the petitioner had already deposited on 5.3.1991 a sum of Rs. 3,177.
4. After the said amount had been deposited, the petitioner again filed a petition under Section 5(1), (2), (3), (4) and (5) of the Act 38 of 1990 for cancelling the order of eviction passed in P.No. 53 of 1987 dated 7.7.1988. The Revenue Court by order dated 26.6.1995 had dismissed the same. The Revenue Court has observed that the petitioner is claiming the relief in respect of the arrears for faslis 1392 to 1396 under the Act 38 of 1990 for which there is no basis and hence the petitioner is not entitled for the relief.
5. Mr. Dhanyakumar, the learned Counsel appearing for the tenant represented that if in the C.R.P. No. 2096 of 1995 his contention is accepted, then there is no need for the disposal of the other two revision petitions viz., C.R.P. No. 2093 of 1988 and C.R.P. No. 87 of 1995, as they would become infructuous.
6. Mr. K.R. Thiagarajan, the learned Counsel appearing for the respondent also agreed for the same. Even though all the three revision petitions had been argued on merits, in view of the decision that I am going to take hereinafter I think it is suffice to consider the validity of the order of the Revenue Court in C.R.P. No. 2095 of 1995 alone.
7. The questions to be decided are:
(i) Whether the petitioner is entitled to the benefit of the Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act?
(ii) Whether the order of eviction passed in P.No. 53 of 1987 on the file of Revenue Court, Thanjavur is liable to be set aside?
8. It is the admitted fact that the petitioner was in arrears for the faslis 1392 to 1396 and the respondent had filed P.No. 53 of 1987 on the file of Revenue Court, Thanjavur for evicting the petitioner. The order of eviction was also passed and C.R.P. No. 2093 of 1988 had been filed by the petitioner before this Court and obtained an order of stay. The said revision was dismissed for default on 27.9.1993. But subsequently the petitioner has filed C.M.P. No. 10422 of 1995 for restoration of the C.R.P. No. 2093 of 1988. By order dated 23.1.1996 this Court had allowed the C.M.P. No. 10422 of 1995 and restored C.R.P. No. 2093 of 1988 on condition that the petitioner should pay a sum of Rs. 500 to the counsel for the respondent within 10 days from the date of order. The petitioner in compliance of the said order, had paid the cost to the counsel for the respondent on 10.1.1996 and as such C.R.P. No. 2093 of 1988 was restored.
9. If the petitioner is entitled for the benefit of the said Act, then he will be entitled to continue as a tenant. Section 4 of the said act is as follows:
4. 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 II, of this Act for availing relief under this Act from the payment of the said arrears of rent.
(2) The option given under Sub-section (l) shall be final.
Section 4 of the said Act makes it clear that the cultivating tenant who is in arrears for the fasli year ending with 30th June, 1989 and for any other previous fasli years, had been given option to make an application to the competent authority, within two months from the date of publication of the said Act to pay the current rent and 1/4 of the said arrears of rent, in the manner specified in Part II or to pay the same in the manner specified in Part III. Part II deals with Sections 5 and 6. Section 6 of the said Act bars the proceedings for eviction or recovery of arrears of rent about which we are not concerned.
10. Section 5 of the said Act is as follows:
5. 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) (2) Any cultivating tenant may pay to the landlord or deposit in the court or before the competent authority to the account of the landlord the current rent and the one-fourth of the arrears of rent on or before the 31st day of March, 1991.
(3) The court in which or the competent authority before which the deposit is made under Sub-section (2) 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 the current rent and the one-fourth of the arrears of rent due from the cultivating tenant. If the court or the competent authority finds that any further sum is due towards such current rent or one-fourth of the arrears of rent, it shall allow the cultivating tenant to deposit the further sum within the period specified in that sub-section or within such further time as the court or competent authority may allow which shall not in any case exceed thirty days from the 31st day of March, 1991 specified in the said sub-section. If the court or the competent authority adjudges that no further sum is due or if the cultivating tenant deposits within the time referred to above such further sum as is ordered by the court or the competent authority, the cultivating tenant shall be deemed to have paid the current rent and the one-fourth of the arrears of rent within the due date of the purpose of this Act. If having to deposit a further sum, the cultivating tenant fails to do so within the time allowed by the court or the competent authority the landlord may proceed against such cultivating tenant under the Public Trusts Act or the Tenants Protection Act, as the case may be, for the current rent or one-fourth of the arrears of rent.
(4) In any suit or proceeding pending on the date of the publication of this Act, for the recovery of the current rent, or any arrears of rent for any fasli year in the said years, payable by a cultivating tenant to the landlord or for the eviction of a cultivating tenant for non-payment of any such current rent or any arrears of rent, the court or competent authority shall, if the cultivating tenant pays or deposits under this Act, the current rent and the one-fourth of the arrears of rent, and on the application of the cultivating tenant, pass an order dismissing without costs, the suit or proceeding insofar as such suit or proceeding relates to such recovery or eviction.
(5) If, before the date of the publication of this Act, any decree or order has been passed in any suit or proceeding-
(i) for the recovery of any arrears of rent referred to in Sub-section (4); or
(ii) for the eviction of a cultivating tenant for nonpayment of any such current rent or one-fourth of the arrears of rent, the court or the competent authority shall, if the cultivating tenant pays or deposits under this Act, the current rent and the one-fourth of the arrears of rent and on the application of any person affected by such decree or order whether not he was a party thereto, vacate the decree or order in so far as such decree or order relates to such recovery or eviction.
Section 5(l) of the said Act makes it clear that all the arrears of rent payable by the cultivating tenant is deemed to be discharged irrespective of a decree or order had been obtained, if the cultivating tenant pays to the landlord or deposits in the court or before the competent authority the current rent and 1/4 of the total amount of arrears of rent for the said arrears. Section 5(3) of the said Act envisages an enquiry on the application made by the tenant to deposit the rent in case if there is, any dispute with regard to the quantum. The Revenue Court may allow the tenant to deposit the same by granting time and such time shall not in any case exceed 30 days from the 31st March, 1991. Hence if any deficiency of rent is to be paid, the tenant has to deposit the same within 31.1.1991 or within such period as may be extended by the Revenue Court which shall not exceed 30 days from 31.3.1991. Section 5(5) of the said Act make the provision for the cases where an order of eviction or order of recovery of rent had already of eviction or order of recovery of rent had already been passed. In such cases if the tenant pays or deposits the current rent and 1/4 of the arrears of rent, then a decree for recovery of rent or the order of eviction, as the case may be, has to be vacated on the application of the tenant. We are not concerned with Part III Wherein Section 7 deals with the payment of the arrears of rent in instalments, as contemplated in Section 4(l)(ii) of the said Act. As per the requirement of the above said provision, irrespective of the order of eviction, as soon as the said Act came into force the option has been given to the tenant to make an application to the Revenue Court to deposit the current rent with 1/4 of the arrears. The petitioner had exercised his option by filing the petitioner P.No. 2 of 1992. The Revenue Court accordingly permitted the petitioner to pay the current rent for fasli 1399 and 1/4 of the arrears for faslis 1397 and 1398. In fact the petitioner deposited the amount on 6.3.1991 a sum of Rs. 3,177. But, however, after the enquiry, it was found that a sum of Rs. 193 was due and the same was deposited by the petitioner on 22.4.1991, itself. On which date the Revenue Court passed an order permitting the petitioner to exercise his option under Section 4 of the said Act.
11. Subsequently the petitioner filed the petition under Section 5(5) of the said Act to set aside the order of eviction passed in P.No. 53 of 1987. So far as faslis 1392 to 1396 are concerned, the petitioner did not pay the rent and he was in arrears. The respondent filed the eviction petition in P.No. 53 of 1987 and the order of eviction was passed, against which C.R.P. No. 2093 of 1988 had been filed. It is admitted further that those arrears of rent amounting to Rs. 9,372.50 had been paid to the respondent in two instalments, a sum of Rs. 5,000 on 30.8.1988 and the balance of Rs. 4,372.50 on 1.2.1989. This amount had been paid before ever the Act 38 of 1990 came into force. Hence, when the Act came into force, the petitioner was in arrears only for the faslis 1397 and 1398. Hence he duly exercised his option under Section 4 of the said Act, seeking permission to deposit the current rent and 1/4 of the arrears for those two faslis. The Revenue Court had permitted the petitioner to exercise his option by order dated 22.4.1991 and the petitioner had deposited the rent in accordance with the provisions of the statute.
12. The counsel for the respondent contended that the arrears of rent deposited pursuant to the conditional order in the stay petition cannot be taken into consideration and since the order of eviction had already been passed and the C.R.P. No. 2093 of 1988 had been dismissed for default, the respondent is entitled to execute the order of eviction and as such the petitioner is not entitled for any of the benefits under the said act. I am unable to agree with the counsel for the respondent for the simple reason that Section 4 of the said Act gives the option to the tenant to deposit the current rent with 1/4 of the arrears. So far as the arrears is concerned, there is no restriction with regard to the period. Hence, whatever be the arrears prior to the fasli ending 30.6.1989, the tenant is entitled to deposit, the same. Since the petitioner had paid the arrears during the pendency of the Civil Revision Petition No. 2093 of 1988, on the date when the said act came into force, the petitioner was in arrears only for the faslis 1397 and 1398. Hence, he made the application to deposit 1/4 of the arrears with the current rent. Pursuant to the order dated 22.4.1991, the petitioner has also deposited the rent. Hence, as per the said Act, he exercised his option and the relief has been granted.
13. The counsel for the respondent referred to the Judgment reported in Kathan Muthiryar v. Gopal Rathinam, (1994)1 M.L.J. 373. In that case, the petitioners claimed that the arrears of rent have been paid during the pendency of the revision and as such they are entitled to the Act 38 of 1990. The learned Judge rejected the same on the ground that the tenant has not paid the rent claiming the benefit under the Act 38 of 1990. Whereas in this case the tenant has filed the application for deposit of the rent under Section 4 of Act 38 of 1990 and as such the judgment has no application to the facts of the present case.
14. Now as per Section 5(5) of the said Act, it is clear that wherever the order of eviction had been passed, earlier to the coming into force of the said Act, then such order of eviction has to be set aside or vacated in case the petitioner has permitted to exercise his option under Section 4 of the said Act and where, in compliance of such exercise, the tenant has paid 1/4 of the arrears of rent and the current rent. There is no dispute that the petitioner had paid the said rent in compliance with the provisions of the said Act.
15. In fact if the petitioner had not paid the arrears of Rs. 9,372.50 earlier, as per the provision of this Act, the petitioner is entitled to pay only 1/4 of the amount. But fortunately the respondent had received the said arrears for the faslis 1392 to 1396 before ever the new Act came into force.
16. In a case reported in Pazanichami v. Muthiah Pillai, (1992) 2 M.L.J. 523, it has been held as follows:
The word 'arrears' is defined in the Concise Oxford Dictionary as outstanding debts': what remains not done". Hence, there is no difficulty in holding that under Section 5 of the Act, the tenant is bound to pay the current rent plus 1/4 of the amount due and payable on the date of the publication of the Act, with regard to the rent payable for fasli year ending with 30th June, 1989 and provisions fasli years. It can never mean that the tenant is bound to pay 1/4th of the total amount of rent fixed between the parties inclusive of amounts already paid.
If the contention of the learned Counsel for the petitioner is accepted, it would tantamount to refixing the rent at one-fourth of the agreed rent in all cases where the tenant is in arrears. There is no warrant for such a construction. If the Legislature intended to wipe out all arrears in cases where the tenants had paid earlier one-fourth of the total rent or more, it would have said so expressly. Such provision found in some of the Debt Relief Acts. No such provision is found in this Act. The Legislature has intended to give only a concession and reduce the burden of arrears as on the date of the Act.
From the above laid principle, it is clear that the tenant is entitled for the benefit of the said Act if he has paid 1/4 of the arrears with the current rent.
17. The Revenue Court is not correct in assuming that the tenant is claiming the benefit for the arrears which his the subject matter of C.R.P. No. 2093 of 1988, without considering the fact that those amounts had already been paid by the petitioner. In fact the Revenue Court had given the certificate to that effect dated 15.2.95. Hence, the order of the Revenue Court cannot be sustained. From the above facts, it is clear that the petitioner is entitled to the benefits of Act 38 of 1990 and as such the order of eviction passed in P.No. 53 of 1987 dated 7.7.1988 is liable to be set aside.
18. For the reasons stated above, the Civil Revision Petition No. 2095 of 1995 is allowed, setting aside the order passed in P.No. 53 of 1987 dated 7.7.1988 on the file of the Revenue Court, Thanjavur.
19. In view of the order passed in C.R.P. No. 2095 of 1995, as said already, no separate consideration is necessary in respect of C.R.P. No. 2093 of 1988 and C.R.P. No. 87 of 1995 and they are dismissed as become infructuous.
It is represented by the landlord that even for the future faslis, the proceedings for recovery of arrears of rent are pending before the Revenue Court. Unless the petitioner pays the arrears rent within two weeks, the petitioner will not be entitled for the benefit of this order and they will be evicted forth-with. I am making this order because for every fasli, the landlord has been driven to the court for the collection of rent. It is rather unfortunate that 'the tenants are having such an attitude of driving the landlord to the court for collection of the rent, even though they peacefully enjoy the land. Unless the conduct of the petitioners are condemned, they will repeat the same thing every year. Hence, I am constrained to pass the last portion of the conditional order.