Supreme Court of India
CHINNAMARKATHIAN ALIAS MUTHU GOUNDER & ANOTHERversusAYYAVOO ALIAS PERIANA GOUNDER & OTHERS
- Citation
- 1981 INSC 202
- Decided
- 10 December 1981
- Disposal
- Appeal(s) allowed
- Bench
- D A DESAI
Holding
A Revenue Divisional Officer cannot pass a conditional eviction order together with a time‑grant for payment of arrears; such an order is ultra vires, and the tenants are protected from eviction under the Act.
Summary
The appellants were cultivating tenants occupying land owned by the respondents, who sought eviction on the ground of rent arrears for 1958‑59, 1959‑60 and 1960‑61. The Revenue Divisional Officer (RDO) determined the arrears, granted the tenants six weeks to pay, and in the same order stipulated that failure to pay would result in eviction – a composite order. The tenants complied with the payment after obtaining conditional stays from the High Court, and challenged the RDO’s eviction order. The Supreme Court held that under clause (b) of sub‑section (4) of Section 3 of the Madras (Tamil Nadu) Cultivating Tenants Protection Act, 1955, the RDO may grant time to pay arrears but may not simultaneously pass a conditional eviction order; eviction can be ordered only after a default occurs. Consequently, the RDO’s eviction orders were beyond its jurisdiction and were set aside, with the tenants entitled to the protection of the Act. The appeals were allowed and the eviction orders were vacated.
Issues considered
- When can a Revenue Divisional Officer pass a composite order granting time for payment of rent arrears and simultaneously ordering eviction?
- Does clause (b) of sub‑section (4) of Section 3 of the Madras (Tamil Nadu) Cultivating Tenants Protection Act, 1955, prohibit such a composite order?
- Are the tenants entitled to protection from eviction under the Act despite the alleged arrears?
- Should the matter be remitted to the RDO for fresh determination after the passage of time?
Legislation cited
- Code of Civil Procedures. 148
- Madras (now Tamil Nadu) Cultivating Tenants Protection Act, 1955s. 3, s. 3(4)(a), s. 3(4)(b), s. 6(b)
Subjects
cultivating tenantsevictionrent arrearscomposite orderstatutory protectionRevenue Divisional OfficerTamil Nadu Cultivating Tenants Protection Actjurisdictionconditional order
Judgment
A 146
CHINNAMARKATHlAN AtIAS MVTiiU
GOUNDER & ANOTHER -
v.
AYYAVOO ALIAS PERIANA GOUNDER & OTHERS
December lO, 1981
[D.A. DESAI, A. D. KOSHAL AND R.B. MISRA, JJ.)
c Madras (Now Tamifnadu) Cultivating Tenants Protection Act 1955, S 3, 4(a}
and (b)-Scope of-Cultivating Tenant-Rent in arrears-Eviction petition by
landlord-Composite order by Revenue Divisional O/ficer-Allowing time for deposit
of rent and on default directing eviction-Such order whether valid and legal.
The appellants in the appeals were cultivating tenants in occupation of
different parcels of lal)d which were owned by the respondents. The respondents
purchased these lands from the erstwhile own€r, who also executed a deed of
D assignment assigning the rent in arrears of the tenants for the periods 1958-59
and 1959-60. The respondents filed evic;tion petitions against the appellants for
eviction on the ground that they were in arrears of rent due and payable for the
years 1958-59, 1959-60 and 1960-61, which were contested on diverse grounds.
The Revenue Divisional Officer over-rnled all the contentions of the tenants
and held that the tenants were in arrears of rent for the afore-mentioned three
E years and were liable to pay the same. He further held that since the previous
landlord assigned the arrears of rent for the two years, 1958-59 and 1959-60, the
respondents were not only entitled to commence action for recovery of arrears of
rent due and payable to the previous landlord but they were also entitled to evict
the tenants for failure to pay the rent in arrears. The tenants were directed to
pay the arrears within six weeks, failing which they were to be evicted.
F In the Civil Revision Petitions by the tenants the High Court directed that
the rent found in arrears be deposited, which order was complied with. The
-
High Court found that the Revenue Divisional Officer was in error in passing a
composite order, whereby he determined the amount of arrears a:nd after speci-
fying the time within which the amount of arrears should be paid up pre•cribed
the consequences of failure namely that the tenants should be evicted; nevertheless r- •
held that the orders made by the Revenue Divisional Officer were not one for
G eviction and dismissed the revision petitions.
In the appeals to this Court it was contended on behalf of the appellants
that when the Revenue Divisional Officer grants time to the tenant to deposit
the arrears of rent he cannot simultaneously pass an order of eviction which is
to take effect infuturo and such an order can be passed only nfter the default in
making the deposit is committed. On behalf of the respondents it was con-
tended that the Revenue Divisional Officer has a discretion to grant time to the
(:ifiNNA~ARKATHiAN V. AYYAVOO
defaulting tenant to repair the d!lfau!!, ;;;:;iJ foerefore there would be nothing A
illegai in granting time and simultaneously providing for consequence of default.
Allowing the appeals
HELD : [By the Court]
I. When the Revenue Divisional Officer allows time to a cultivating B
tenant for depositing the arrears of rent in pursuance of the provisions of
clause (b) of sub-section (4) of Section 3 of the Act, be cannot simultaneously
pass a conditional order of eviction which is to take effect on a default to occur
in futuro. An order to evict can, in terms of the section, only be passed 'if the
cultivating tenant fails to deposit the sum as directed'. [160 E; 158 G-159 B]
2. The orders of the Revenue Divisional Officer directing eviction, were C
passed in contravention of the express provision of clause (b) of sub-section (4)
of Section 3 of the Act and are therefore, without jurisdiction. [160 F, CJ
- 3. The order of the Revenue <Divisional Officer directing deposit of rent
having been actually complied with about a couple of decades back it is no use
remitting the case to him. The ends of justice would be served if it is declared
that the tenants are qualified for the protection envisaged by the Act against D
their eviction. [160 G-H, A-BJ
[per D.A. Desai J.J
I. Section 3 of the Act places an embargo on the eviction of a cultivating
tenant and the protection extends to rendering a decree or order of a court for
eviction nugatory. An enabling provision in sub-section (4)(a) of Section 3 E
enables the landlord to seek eviction of a cultivating tenant on grounds available
to him under the Act. [ 154 BJ
2. When an application for eviction is made, clause (b) of sub-section (4)
prescribes the procedure to be followed by the [Revenue Divisional Officer. The
-
Officer has to, (i) give an opportunity both to the landlord and the cultivating
tenant to make a representation, (ii) hold a summary enquiry into the matter to F
determine the rent in arrears. After having determined the rent in arrears the
Revenue Divisional Officer has to further enquire the relevant circumstances of
the landlord and the cultivating tenant and the circumstances which have a
bearing on the issues relatable to the need of the landlord for rent and the paying
capacity of the tenant. Thereafter the Revenue Divisional Officer has to decide
what length of time bas to be given to the tenant to deposit the rent found in
arrears and at that stage the proceeding must stop. It is something like a pre- G
liminary issue to be determined because after a finding is recorded that the tenant
is in arrears and the amount of arrears is determined the Revenue Divisional
Officer is under a statutory obligation to grant time to deposit arrears. (154 C-E]
3. The section grants locus poenilentiae to a tenant who has committed H
default in payment of rent. Granting of the time is not a concession dependent
puon the sweet will of the Revenue Divisional Officer, it is a statutory obligation
148 SUPREME COtJR't RE!>ORTS [I 982) 2 S.C.R.
cast on the Revenue Divisional Officer. He has a discretion in determining the
length of time and this discretion is to be exercised judicially based upon objective
facts ascertained in the inquiry relatable to the circumstances of the landlord and
the tenant, [154 G] -.~
4. The proceedings before the Revenue Divisional Officer under section 3
of the Act are judicial proceedings. The Revenue Divisional Officer is a Court
as provided in section 6(b) of the A ct and a revision petition lies to the High
Court against his order. [155 D]
5. If the proceedings are judicial and there is a /is between the parties, the
rival contentions have to be properly adjudicated upon the evidence placed
before the Court. Before the Revenue Divisional Officer can make an order for ~
eviction of a cultivating tenant he has as a matter of statutory obligation to deter-
c mine the issues which arise in the case under sub-section (4)(b) of section 3,
record a finding on each of them and make a speaking order. The Revenue
Divisional Officer has to grant time to the cultivating tenant to deposit the arrears
found due by him and the length of time is to be relatable to the circumstances
of the landlord and the cultivating tenant. After determining the arrears and
ascertaing the circumstances of the landlord and the tenant and fixing the length
of time to pay the arrears the proceedings at that stage must stop. This is implicit
D in sub-section (4) (b) of section 3. [155 E-H]
6. If a court in exercise of jurisdiction C!lll grant time to do a thing, in the
absence of a specific provision to the contrary curtailing, denying or withholding
such jurisdiction, the jurisdiction to grant time would inhere in its ambit the
jurisdiction to extend time initially fixed by it. Passing a composite order would
be acting in disregard of the jurisdiction in that while granting time simulta-
E neously the court denies to itself the jurisdiction to extend time. The principle
of equity is that when some circumstances are to be taken into account for
fixing a length of time within which a certain action is taken, the court retains
to itself the jurisdiction to re-examine the alteration or modification of circums-
tances which may necessitate extension of time. If the Court by its own act
denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction
which in the absence of a negative provision, it undoubtedly enjoys. [157 D-F]
7. Conditional orders are in terrorem, so that dilatory litigants might put
themselves in order and avoid delay, but they do not completely estop a court
from taking note of events and circumstances which happen within the time
fixed. [157 G]
G
8. The danger inherent in passing conditional orders is that it may result
in taking away jurisdiction conferred on the court for just decision of the case.
-
,
The true purport of conditional order is that such orders merely create something
like a guarantee or sanction for obedience of the court's order but would not
take away the court's jurisdiction to act according to the mandate of the statute or
on relevant equitable considerations if the statute does not deny such con-
siderations. (158 D-E]
H Mahant Ram Das v. Ganga Das, [1961] 3 SCR 763, referred to.
CHINNAMARKATHIAN V. AYYAVOO 149
[per Koshal & Misra JJ] A
I. Sub-section (4) of section 3 gives the Revenue Divisional Officer power
either to allow the application of the landlord or to dismiss it after he has held a
summary enquiry into the matter. If the application is allowed, an order of
eviction has to be passed. If it is dismissed the proceedings come to an end.
However, if the ground of eviction is non-payment of rent, the Revenue Divi-
sional Officer is clothed with power to allow the cultivating tenant to deposit the B
arrears and costs, as directed. The power is discretionary and, while exercising
the same, it is not incumbent on the Revenue Divisional Officer to grant time.
[164 E-F]
2. If the legislature intended to make it obligatory on the part of the
Revenue Divisional Officer to fix a time for deposit of the arrears in all cases
covered by clause (a) and clause (aa) of sub-section (2) there is no reason why it C
should have used the word 'may' in relation to the grant of time. Clause (b) of
sub-section (3) provides that ''if the court finds that any sum is due it shall
al low the cultivating tenant, just and reasonable time ... " The difference in the
language used by the legislature in clause (aa) of sub-section (2) and in clause (b)
of sub-section (3) is significant and not without purpose. The intention of the
legislature appears to be that normally a defaulting tenant must seek the help of
the court all by himself and that if he does so he must be protected but that a D
defaulting tenant who waits for payment of rent till he is sought to be evicted by
the landlord is not necessarily entitled to the same protection. [164 G 165 B]
Circumstances may exist which may place him at par with a tenant covered
by sub-section (3) but then it may not necessarily be so. That is why it is left
to the discretion of the Revenue Divisional Officer to grant time to the cultivating
trnant or to deny him that opportunity. [165 C] E
C1v1L APPELLATE JuR1so1cnoN : Civil Appeals Nos. 2197-
2199 of 1969.
-- From the judgment and order dated the 16th February, 1965
of the Madras High Court in Civil Revision Petition Nos. 2399,
2400 & 2401of1961. F
P. Govindan Nair, K. J. John and Mrs. Baby Krishnan for the
Appellants.
M. Natesan, Mrs. 1. Rumachandran and K. Ram Kumar for the
Respondents. G
The following Judgments were delivered :
DESAI, J. Reopondents in each of these appeals are the land-
lords of the land more particularly described in the three different H
petitions filed by them in the Court of the Revenue Divisional
Officer, Namal<;k~l in T~mil N~dl! Stat~ seeking to evict tenants of
i5o SUPREME COURT REPORTS [l 982i 2 s.c.k.
A different parcels of land on the allegation that the concerned tenants
were in arrears of rent for the years 1958-59, 1959-60 and 1960-61.
The tenants who are appellants in these three appeals appeared in
the respective petitions and contested the same on diverse grounds
but the only one now surviving at this stage is; whether in view of
the language employed in section 3, 4(a) and (b) of the Madras
B (now Tamil Nadu) Cultivating Tenants Protection Act, 1955 ('Act
for short), the Revenue Divisional Officer erred in passing a compo-
site order for payment of rent found to be in arrears within the time t
prescribed by him and on default, without any further proceeding,
directing eviction of the tenants.
c The respondents purchased the land cultivated by the tenants
in each of the petitions under sale deeds Ext. P-6 dated January 22,
1960 and Ext. P-7 dated March 9, 1960, from the erstwhile owner
of the land one Nachayammal. Subsequently by the deed of assign-
ment Ext. P-5 dated 5th December, 1960, Nachayammal, the vendor
of the respondents assigned the rent in arrears for the period 1958-59
D and I 959-60 to the respondents. By the time, action in each case
was commenced, according to the respondents-landlords rent for the
year 1960·61 had become due and payable. The respondents accor-
dingly filed C.T.P.A. Nos. I, 2 and 3 of 1961 against the respective
tenants ou January 2, 1951, for eviction of the tenants on the ground
that they were in arrears of rent due and payable for the years
E 1958-59, 1959-60 and 1960-61.
The Revenue Divisional Officer overruled all the contentions
of the appellants-tenants in each case and held that the tenants were
in arrears of rent for the afore-mentioned three years and that they
F
were liable to pay the same. It was further held that since by the
deed of assignment, previous landlord assigned the arrears of rent
-
for two years 1958-59 and 1959-60 in favour of the respondents,
they were not only entitled to commence the action for recovery of
arrears of rent due and payable to the previous landlord but they
wei:e also entitled to evict the tenants for failure to pay rent in
arrears. Having recorded these findings the Revenue Divisional
G Officer passed identical order in each case with variation in figures.
Only one order may be extracted to focus the attention on the
controversy now brought to this Court. In C.T.P.A. No. 1/61 the
following final order was made :
"In view of my findings above I hold that the repon-
H dents are in arrears of rent to the extent of Rs. 2,850 for the
years 1958-59, 1959-60 and 1960-61 to the petitioners. I
CHINNAMARKATHIAN v. AYYAVOO (l>esai, J.) 151
direct under section 3, 4(a) that this amount be paid to the A
petitioners within six weeks from the date of this order
failing which they shall be evicted from the suit lands."
This order was made on November 6, 1961. The tenants were,
therefore, under an obligation to pay the arrears found due by
December 18, 1961, to qualify for the protection of the Act. Ad-
mittedly the tenants did not deposit the arrears found due by the
Revenue Divisional Officer but filed three Civil Revision Petitions
on December 11, 1961 in the High Court. While admitting the
revision petitions on December 15, 1961, the High Court granted
conditional stay directing that the rent found in arrears be deposited
within the time set out in the order of the High Court. A dispute c
- appears to have been raised about the deposit made by the tenants
whereupon the High Court on May 2, 1962, directed that an addi-
tional amount of Rs. 950 be d~posited by the tenants within the
time prescribed by it and it is conceded that the conditional orders
-..-'- have been fully complied with.
D
The most important contention that engaged the attention of
the High Court at the hearing of the Revision Petitions was whether
the Revenue Divisional Officer was in error in passing a composite
order whereby he determined the amount of rent in arrears and
after specifying the time within which the amount in arrears should
be paid up, prescribed the consequences of failure to act within the E
prescribed time, namely, that the tenants would be evicted. The
High Court noticed some of its own conflicting decisions bearing on
the topic but ultimately held that the view taken by Srinivasan, J. in
Venkitaswami Naicker v, Ramaswami Naicker,(1) in which it was held
as under, was correct:
F
"Having regard to the object of the enactment it is clear
that the Jaw empowers the Revenue Divisional Officer to
grant a reasonable time to the tenant to pay the arrears in
order to avoid eviction. There may be a variety of cir-
cumstances by reason of which the tenant might find it
difficult to comply with the direction to deposit the arrears G
by the date fixed. If the date so fixed initially is to be an
inflexible and unalterable date, it is bound to work con-
siderable hardship upon the tenants. It would be a mecha-
nical application of the provision of the section for the
purpose of eviction. The object of the section is to avoid H
V) 77 {.,.W. 55~,
152 SUPREME COURT REPORTS [ 1982] 2 s.c.R.
A eviction wherever possible and not insist upon eviction for
such reasons as obtain in the case."
Having noticed the law as indicated in the passage extracted,
the High Court observed that the order made by the Revenue
Divisional Officer was not one for eviction. A further unqualified
B order has to be passed by the Revenue Divisional Officer directing
the eviction. But at a later stage in the judgment the High Court
appears to have taken a somersault when it observed that in the
case before it the High Court found nothing wrong in the order
which tl:Je Revenue Divisional Officer had passed. In other words,
the composite order was held to be legal and once the revision
c petitions filed by the tenants were dismissed by the High Court, the
order passed by the Revenue Divisional Officer would immediately
come into operation. With respect our task became none too easy ...
to wade through the irreconcilably contradictory approach of the
High Court. Ultimately the High Court dismissed the three revision
petitions. Hence these three appeals by certificate.
0
The object behind enacting the Act clearly manifests itself by
reference to its long title whi<;h reads :
"An Act for the protection from eviction of cultivating
tenants in certain areas in the State of Madras."
E
It was a beneficient legislation for granting security or tenure to
cultivating tenants of agricultural lands. It is a well-settled canon
of construction that in construing the provisions of such enactments
the court should adopt that.construction which advances, fulfils and
F
furthers the object of the Act rather than the one which would defeat
the same and render the protection illusory.
It is not in dispute that the tenants in each of these appeals
-
are cultivating tenants and the lands of which they are tenants are
lands covered by the Act. They are sought to be evicted on the
only ground that they have committed default in payment of rent
G payable from year to year for a period of three years.
Mr. Natesan learned counsel who appeared for the respondents
urged that if the Revenue Divisional Officer has a discretion to
grant time to the defaulting tenant to repair the default, there would
H be nothing illegal in granting time and simultaneously providing for
consequence of default. This contention may be examined from
three independe11t an~les ;
CHINNAMARKATHIAN v. AYYAVOO (Desai, J.) 153
(I) Has Revenue Divisional Officer a discretion to grant A
time after being satisfied that a default is committed,
~ .... to repair the default within the time considered reason-
able by him and so ordered by him ?
(2) Has he a discretion to further extend the time if the
defaulting tenant is unable to repair the default within B
the time fixed by him ?
(3) What is the impact of answer of the afore-mentioned
two questions on his jurisdiction to pass a composite
order ?
Section 3 and the relevant sub-sections read as under : c
3( I) Subject to the next succeeding sub-sections, no
cultivating tenant shall be evicted from his holding or
any part thereof, by or at the instance of his landlord,
whether in execution of a decree or order of a court or
otherwise; D
x x x
(4)(a) "Every landlord seeking to evict a cultiva-
ting tenant failing under sub-section (2) shall, whether
or not there is an order or decree of a court for the
eviction of such cultivating tenant, make an application· E
to the Revenue Divisional Officer and such application
). shall bear a Court-fee stamp of one rupee."
(4)(b) 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
F
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 G
allow the cultivating tenant such time as he considers
just and reasonable having regard to the relative cir-
cumstances 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 H
cultivating tenant deposits the sum as directed, he shall
be deemed to have paid the rent under sub-section 3(b).
154 SUPREME COURT REPORTS (1982] 2 S.C .R.
A If the cultivating tenant fails to deposit the sum as
directed, the Revenue Divisional Officer shall pass an
order for eviction."
Section 3 of the Act places an embargo on the eviction of a
cultivating tenant and the protection extends to rendering a decree
B or order of a court for eviction nugatory. There is an enabling
provision in sub-section (4)(a) of section 3 which enables the land-
lord to seek eviction of a cultivating tenant on the ground which
may be available to him under the Act, When such an application
is made, clause (b) of sub-section (4) prescribes the procedure to be
followed by the Revenue Divisional Officer. The officer concerned
c has to, (i) give an opportunity both to the landlord and the culti-
vating tenant to make a representation; (ii) hold a summary enquiry
into the matter to determine the rent in arrears. After having deter-
mined the rent in arrears the Revenue Divisional 0.fficer has to
further enquire the relative circumstances of the landlord and the
-
cultivating tenant and the circumstances which have a bearing on
D the issues are the circumstances relatable to the need of the landlord
for rent and the present paying capacity of the tenant. After taking
into consideration the circumstances of both the landlord and the
tenant thus ascertained the Revenue Divisional Officer has to decide
what length of time has to be given to the tenant to deposit the
rent found in arrears and at that stage the proceeding must stop.
E It is something like a preliminary issue to be determined because
after a finding is recorded that the tenant is in arrears and the
amount of arrears is determined, the Revenue Divisional Officer is
under a statutory obligation to grant time to deposit the arrears.
The section grant> locu~ poenitentiae to a tenant who has committed
default in payment of rent. Granting of the time is not a concession
F
dependent upon the sweet will of the Revenue Divisional Officer.
Granting time to deposit the arrears is statutory obligation cast on
the Revenue Divisional Officer. He has a discretion in determining
--
the length of time and this discretion is to be exercised judicially
based upon objective fac[s ascertained in the inquiry relatable to the
circumstances of the IMdlord and the tenant. In the context in
G which the expression 'relative circumstances of the landlord and the
cultivating tenant is used clearly manifests the legislative intention
that the circumstances of the landlord for recovering arrears of rent
which may indicate his urgent need for the money or if the rent is
in the crop share, tlie crop, and tlie relative circumstance of the
H tenant would be his present tiaaacial position to repair the default.
On both sides there can be number of circumstances one can envi-
CHINNAMARKATHIAN v. AYYAVOO (Desai) J .. 155
sage which, if properly brought to the notice of the~Revenue Divi- A
sional Officer, would influence his ljudicial decision as to the length
of ti me to be granted by him for the deposit of arrears. Where the
landlord is a big landlord to whom payment of rent by one tenant
of a small amount would not make any difference and the tenant
is a needy tenant who was so involved in such depressing circum-
stances that he could not pay even the small amount of rent in time B
and when such circumstances are judicially appraised, the Revenue
Divisional Officer may shorten or lengthen the time to be given for
depositing the amount so as to repair the default. It is not open
to the Revenue Divisional Officer to arbitrarily fix time. His order
fixing the time must show on the face of record that he made the
necessary enquiry as to the relative circumstances of the landlord c
- and the cultivating tenant, and after evaluating the circumstances
placed before him by both the sides he would determine the length
of time and the order fixing the time must at least give some indi-
cation as to what weighed with him in fixing the certain time which
he fixed in. a given case. The pwceedings before the Revenue
Divisional Officer are judicial proceeding. For the purpose of the D
proceedings under section 3 of the Act, the Revenue Divisional
Officer is a Court as provided in r section 6(b) of the Act and a
revision petition would lie to !the High Court against the order of
the Revenue Divisional Officer.
E
). If the proceedings are judicial and there is a !is between the
parties, the rival contentions have to be properly adjudicated upon
the evidence placed before the Court. Before the Revenue Divi-
sional Officer can make an order for eviction:"of a cultivating tenant
he has, as a matter of ~statutory obligation, to determine the issue
which arise in the case under sub-section (4)(b) of section 3, record F
a finding on each of them and make a speaking order. By the very
language of sub-section ( 4)(b) of section 3, the Revenue Divisional
Officer has to grant time to the cultivating tenant to deposit the
arrears found .due by him and the length of time is to be relatable
to the circumstances of the landlord and the cultivating tenant. After
determining the arrears and ascertaining the circumstances of land- G
lord and tenant and fixing the length of time to pay the arrears, the
proceeding at that stage must stop. This is implicit in sub-section
(4)(b) of section 3.
The scheme of the Act is that merely on determination of rent H
in arrears the Revenue· Divisional Officer is not to conclude that
llheie is such .default which has become irreparable and that he is
156 SUPREME COURT REPORTS (1982] 2 S.C.R.
A under an obligation to evict the tenant. In fact, the statute grants
locus poenitentiae to the tenant by making it obligatory upon the
Revenue Divisional Officer to grant some time to the tenant to
repair the default If after the time so granted expires and the
tenant fails to comply with the order calling upon him to deposit
the arrears there would be a default which may become irreparable
8 and eviction may follow. Till then there is no jurisdiction in the
Revenue Divisional Officer to direct eviction.
In fact the High Court itself has taken this very view when it
observed that the view taken by Srinivasan, J. was the cortect one
having regard to the avowed object of the Act, namely, preventing
c unreasonable eviction and affording protection to the tenants to
retain the holdings so long as interests of the landlord in the matter
of the prompt payment of rent are safeguarded. At another stage,
the High Court observed that the time that has to be given or
-
allowed to the tenant to deposit the arrears is to be determined by
considering what is just and reasonable having regard to the relative
D circumstances of both the parties and by its very nature this must
be elastic and flexible and not fixed or final. In other words, the
High Court was of the opinion that the composite order is not
contemplated by sub-section (4)(b) of section 3.
E If sub-section (4)(b) of section 3 does not contemplate passing
of a composite order, what is the correct procedure that must be
followed in a proceeding under that sub-section ? That is self-evident
from the language employed in that sub-section. After the applica-
tion is received and the parties are summoned and representations
are heard, the Court must determine whether the cultivating tenant
F is in arrears of rent. If the answer is in the affirmative, it has to
determine the arrears in terms of its money value. Thereafter, the
---
Revenue Divisional Officer must ascertain relative circumstances of
the landlord and the tenant and as indicated hereinabove, these
circumstances must be relatable to. the need of the landlord for
prompt payment and the present prevalent circumstances of the
G tenant relatable to his paying capacity. Thousand and one circum-
stances can be envisaged which may have a bearing on this aspect.
After these circumstances are properly adjudicated and evaluated
the Revenue Divisional Officer must fix time within which the tenant
should pay the amount and repair the default.
H
It was seriously contended by Mr. Natesan ,as to what is there
in the scheme of the Act and especially in the language of sub-
CHINNAMARKATHIAN v. AYYAVOO (Desai, J.) 157
section (4)(b) which would make it impermissible for the Revenue A
Divisional Officer simultaneously passing an order determining rent
in arrears and directing that if the tenant fails to pay the amount
within the time prescribed by the Court eviction shall follow as a
matter of course. If this construction of sub-section (4)(b) as can-
vassed by Mr. Natesan is adopted the Revenue Divisional Officer
would be denying to himself a more beneficial jurisdiction conferred B
upon him, namely, to extend the time for making the payment if an
evaluation of circumstances so placed before him he is satisfied that
a further extension is not only just but not to grant it would be
harsh and unjust and would be defeating the object for which the
Act was enacted. An analogus provision may be noticed. It is a
well accepted principle statutorily recognised in section 148 of the c
- Code of Civil Procedure that where a period is fixed or granted by
the court for doing any act prescribed or allowed by the Code,
Court may in its discretion from time to time enlarge such period
even though the period originally fixed or granted may expire. If a
Court in exercise of the jurisdiction can grant time to do a thing,
---- in the absence of a specific provision to the contrary curtailing, 0
denying or withholding such jurisdiction, the jurisdiction to grant
time would inhere in its ambit the jurisdiction to extend time initi-
ally fixed by it. Passing a composite order would be acting in a
disregard of the jurisdiction in that while directing time simulta-
neously the court denies to itself the jurisdiction to extend time. The
principle of equity is that when some circumstances are to be taken E
into account for fixing a length of time within which a certain
action is to be taken, the Court retains to itself the jurisdiction to
re-examine the alteration or modification of circumstances which
may necessitated extension of time. If the Court by its own act
denies itself the jurisdiction to do so, it would be denying to itself F
the jurisdiction which in the absence of a negative provision, it
undoubtedly enjoys. Conditional orders, were held by this Court
to be in terrorem, so that dilatory litigants might put themselves
in order and avoid delay, but they do not completely estop a court
from taking note of events and circumstances which happen within
the time fixed. In Mahant Ram Das v. Ganga Das,( 1) in the context
G
, of a failure to pay requisite court fee within the time allowed by the
Court subject to the condition order that failure to pay would
result in dismissal of the appeal, this Court observed as under :
"How undesirable it is to fix time peremptorily for a H
(I) [1961] 3 SCR 763,
158 SUPREME COURT REPORTS [ l 982] 2 S.C.R.
A future happening which leaves the Court powerless to deal
with events that might arise in between, it is not necessary
to decide in this appeal. These orders turn out, often
enough to be expedient. Such procedural orders, though
peremptory (conditional decrees apart) are, in essence, in
terrorem, so that dilatory litigants might put themsel·ves
B in order and avoid delay. They do not, however, comp·
Jetely, estop a court from taking note of events and circum-
stances which happen within the time fixed. For example
it cannot be said that, if the appellant had started with the
full money order to be paid and came well it time but was
set upon and robbed by thieves on the day previous, he
c could not ask for extention of time, or that the Court was
powerless to extend it. Such order are not like the law of
the Medes and the Persians."
The danger inherent in passing conditional orders becomes self-
evident because that by itself may result in taking away jurisdiction
l> conferred on the court for just decision of the case. The true pur-
port of conditional order is that such orders merely create something
like a guarantee or sanction for obedience of the court's order but
would not take away the Court's jurisdiction to act according to the
mandate of the statute or on relevant equitable considerations if
the statute does not deny such consideration. In order to avoid
E subsequent controversy sub-section (4)(b) envisages proceedings in
two stages and that by itself inhibits passing of a conditional order.
It is, therefore, not possible to r.ccept the construction canvassed
for on behalf of the respondents.
As analysed the s'cheme of sub-section (4)(b) of section 3
F requires the Revenue Divisional Officer to determine, arrears, ascer-
tain the exact amount payable by the tenant, fix the time for pay-
ment after taking into consideration the relevant circumstances of
the landlord and the cultivating tenant and then stop there. · There
is no power in the Revenue Divisional Officer at that stage to pass
an order for eviction.
G
If the tenant deposits the amount or pays up the rent and
repairs the default within the time fixed by the Revenue Divisional
Officer, on an application of the tenant pointing ; out this fact,
H the original application of the landlord for eviction would have
to be dismissed. If on the other hand the landlord points out to
the Revenue Divisional Officer that the cultivating tenant has failrd
CHINNAMARKATHIAN v. AAYAVOO Desai, J.) 159
to comply with the order made by the Court and if after notice to A
the tenant and in the absence of a request for extension of time
....._.. ) which again may be judicially examined, the default becomes wilful
or contumacious. It is at that stage and at that stage alone that
the Revenue Divisional Officer enjoys jurisdiction to order eviction.
Such jurisdiction improperly exercised at an earlier stage would
render the order without jurisdiction. Surprisingly the High Court B
reached the same conclusion but failed to follow it.
In all the three cases the Revenue Divisional Officer determined
the arrears of rent and gave six weeks' time to pay the same.
Within the period of six weeks the cultivating tenants in each case
approached the High Court and obtained conditional stay, the
condition being to deposit the rent in arrears within the time pres~ c
• cribed by the High Court and these orders have been complied with.
- If the Revenue Divisional Officer had not denied to himself the fur-
ther jurisdiction to examine:the situation as it emerged on the date of
expiry of the period prescribed by him, it would have been brought
to his notice that the eviction was unjustified in view of the orders
made by the High Court. But as the order became effective accord- D
ing to the Revenue Divisional Officer on the mere failure to deposit
the arrears found due by him, the order of eviction without juris-
diction became effective. The High Court held that there was no
order of eviction but affirmed the order of the Revenue Divisional
Officer as one for eviction.
E
The question then is : What should be my approach in these
appeals ? Frankly speaking, on my finding that the latter part of
the Revenue Divisional Officer's order that 'in the event of failure
to deposit the amount within the time prescribed eviction would
follow,' being without jurisdiction, I would be required to remand
- the matter to the Revenue Divisional Officer to proceed from that
stage. However, I cannot overlook the fact that the initial pro-
ceedings before the Revenue Divisional Officer started in 196 l. Two
decades have rolled by. The ground of eviction was a technical
F
ground of default repaired by the orders of the High Court when
the rent found in arrears was deposited. The landlords have been
paid, may be not specifically within the time prescribed by the G
Revenue Divisional Officer but within the time prescribed by the
High Court. It is not necessary to decide in this case whether the
time prescribed by the Revenue Divisional Officer, if challenged in
the superior court i.e. the High Court, the High Court would
have jurisdiction to prescribe its own time calling upon the tenant H
to deposit the amount to repair the default. That question be kept
open but in the facts of this case the amount having been deposited
160 SUPREME COURT. REPORTS [1982] 2 S C.R.
A way back in 1961-62, it would be merely adding to the agony of
the parties for a very technical consideration to remit the case to
the Revenue Divisional Officer. In the facts of this case it would ,.....
be an id! e formality to remit the case to the Revenue Divisional
Officer for the additional reason that he will have to fix a fresh date
for deposit of the amount and the amount has already been deposited
B 19 to 20 years back. Having regard to all the circumstances of the
case and the inevitable consequence flowing from the passage of
time, I do not consider it just and proper to remit the case to the
Revenue Divisional Officer. In my opinion the tenants have quali-
fied for the protection of the Act and they were not liable to be
evicted.
c Accordingly, all the three appeals are allowed and the order '
for eviction of the tenants in each case is set aside but in the circum-
stances of the case with no order as to costs. -
KosHAL, J. I have had the advantage of going through the
D jndgment prepared by my learned brother, Desai, J., and find
myself in agreement with him on the following points :
(a) When the Revenue Divisional Officer (RDO for short)
allows time to a cultivating tenant for depositing the
arrears of rent in pursuance of the provisions of clause
E (b) of sub-section (4) of section 3 of the Act, he cannot
simultaneously pass a conditional order of eviction
which is to take effect on a default to occur in futuro.
An order of that type can, in terms of this section,
only be passed 'if the cultivating tenants fails to deposit
the sum as directed'. The orders of the RDO direct-
F ing eviction and covered by these appeals were thus
passed ;n contravention of the express provisions of the
clau;;e and are thus without jurisdiction.
-
(b) The orders of the RDO directing the deposit of rent
having been actually complied with about a couple of -.
G decades back it is no use remitting the case to him and
it would serve the ends of justice if we declare that the
tenants are qualified for the protection envisaged by the
Act against their eviction.
H (c) All the three appeals merit acceptance and are allowed
with no order as to costs, the order for eviction of the
tenant in each case being set aside.
CHINNAMARKATHIAN v. AYYAVOO (Kasha/, J.) 161
2. I may, however, observe that it is wholly unnecessary for A
the decision of the appeals to determine the question as to whether
it is incumbent on the RDO, while acting in pursuance of the pro-
visions of clause (b) above mentioned, to grant time to a tenant
who has been found by him to be in arrears of rent. For one thing,
that questions did not form the subject-matter of argument on either
side at the hearing of the appeals, the only point really canvassed B
before us being that that when the RDO grants time to the tenant
he cannot simultaneously pass an order of eviction which is to take
effect in future and which he can pass only after the default in
making the deposit is committed. Secondly, that question does not
arise in these appeals as in each of the appeals before us the RDO
did grant time to the tenants concerned to deposit arrears af rent. c
As it is, Desai, J .. has arrived at a categorical conclusion that accor·
ding to clause (b) aforesaid it is obligatory on the RDO to grant
- time to the tenant for depositing the arrears in all cases falling under
clause (a) or clause (aa) of sub-section (2) of section 3 of the Act in
which the tenant has not availed of the provisions contained in sub-
section (3) of that section. Being unable to subscribe to that con- D
clusion I give below my reasons for holding a contrary opinion.
3. The relevant portion of section 3 is set out hereunder :
"3(1) Subject to the next succeeding sub-sections, no
cultivating tenant shall be evicted from his holding or any E
part thereof, by or at the instance of his landlord, whether
in execution of a decree or order of a Court or otherwise.
(2) Subject to the next succeeding sub-section, sub-
section (I) shall not apply to a cultivating tenant-
F
- (a) who, in the areas where ................................ .
if in arrear at the commencement of this Act,
with respect to the rent payable to the landlord,
does not pay such rent within six weeks after such
commencement or who in respect of rent payable
to the landlord after the commencement of this G
Act, does not pay such rent within a month after
such rent becomes due; or
(aa) who, in the other areas of the State of Madras,
if in arrear at the commencement of this Act, with H
respect to the rent payable to the landlord and
accrued due subsequent fto the 31st March 1954,
162 SUPRBMB COURT RBPORTS [1982] 2 s.c.R.
A does not pay such rent within a month after such
commencement, or who in respect of rent payable
to the landlord after such commencement, does I , __ ...._
not pay such rent within a month after such rent
becomes due; or
B (b) xx xx xx
(c) xx xx xx
(d) xx xx xx
Explan.ation I- xx xx xx ~·
Explanation II- xx
c xx xx
Explanation III- xx xx xx
Explanation IV- xx xx xx
"(3)(a) A cultivating tenant may deposit in Court the
-
rent or, if the rent be payable in kind, its market value on
D the date of deposit, to the account of the landlord-
(i) in the case of rent accrued due subsequent to the
31st March 1954, within a month after the com-
mencement of this Act;
E (ii) in the case of rent accrued due after the com-
mencement of this Act, within a month after the
date on which the rent accrued due.
"(b) The Court shall cause notice of the deposit to be
issued to the landlord and determine, after a summary
F enquiry, whether the amount deposited represents the
correct amount of rent due from the cultivating tenant. If
the Court finds that any further sum is due, it shall allow
the cultivating tenant such time as it may consider just and
reasonable having regard to the relative circumstances of
the landlord and the cultivating tenant for depositing such
G further sum inclusive of such costs as the Court may allow.
If the Court adjudges that no further sum is due, or if the
cultivating tenant deposits within the time allowed such
further sum as is ordered by the Court, the cultivating
tenant shall be deemed to have paid the rent within the
H period specified in the last foregoing sub-section. If,
having to deposit a further sum, the cultivating tenant fails
to do so within the time allowed by the Court, the landlord
CHINNAMARKATHIAN v. AYYAVOO (Koshal. J.) 163
may evict the cultivating tenant as provided in sub- A
section (4).
"(c) xx xx xx
Explanation I - xx xx xx''
"(4)(a) Every landlord seeking to evict a cultivating B
tenant falling under sub-section (2) shall, whether or not
there is an order or decree of a court for the eviction of
such cultivating tenant, make an application to the Reve-
nue Divisional Officer and such application shall bear a
court-fee stamp of one rupee.
(b) On receipt of such application, the Revenue c
Divisional Officer shall, after giving a reasonable opportu-
nity 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 (aJ or
clause (aa) of sub-section (2) in which the tenant had not D
availed of the provisions contained in sub-section (3), the
Revenue Divisional Officer mav allow the cultivating tenant
such time as he considers just and reasonable having regard
to the relative circumstances of the landlord and the culti-
vating tenant for depositing the arrears of rent payable
under this Act inclusive of such costs as he may direct. E
If the cultivating tenant deposits the sum as directed, he
shall be deemed to have paid the rent under sub-section (3)
(b). lf the cultivating tenant fails to deposit the sum as
directed, the Revenue Divisional Officer shall pass an order
for eviction."
F
An analysis of the section clearly leads to certain indisputable
propositions. Sub-section (I) creates a bar aginst the eviction of
a cultivating tenant from his holding or any part thereof, by or at
the instance of his landlord, even though the latter seeks to do so in
execution of a decree or order of a Court. This bar is subject only G
to the provisions of sub-section (2), (3) and (4). Sub-section (2)
enacts an exception to sub-section (I) and lays down inter alia that
sub-section (1) shall not apply to a cultivating tenant who conforms
to the description in clause (a) or (aa) of sub-section (2). Both the
clauses last mentioned cover tenants who are in arrears in regard H
to the payment of rent at the commencement of the Act or who
fail to pay rent falling due after such commencement within a month
164 SUPREME COURT REPORTS [1982] 2 S.C.R,
A after its becoming due. Sub-section (3) enables a cultivating tenant
to deposit arrears of rent in Court and further provides that after
notice of such deposit has been given to the landlord, the Court
would embark on a summary inquiry and then adjudge whether any
further sum is due to the landlord. If the Court finds that a
further sum is due, "it shall allow the cultivating tenant such time
B as it may consider just arid reasonable having regard to the relative
circumstances of the landlord and the cultivating tenant for deposi-
ting such further sum inclusive of such costs as the Court may
allow". If the cultivating tenant fails to pay the sum determined
by the Court to be due under sub-section (3) the landlord "may"
evict the cultivating tenant as provided in sub-section (4). Sub-
c section (4) then states that a landlord seeking to evict a cultivating
tenant falling under sub·section (2) shall make an application to the
RDO who sliall, after givirtg a reasonable opportunity to the land-
lord and the cultivating tenant to make their representations, hold
-
a summary inquiry into the matter and pass an order either allowing
the application or dismissing it. The sub-section further provides
D that if the case falls under clause (a) or (aa) of sub-section (2) in
which the tenant has not avail of the provisions contained in sub-
section (3) the RDO may allow the cultivating tenant such time as
he considers just and reasonable having regard ....... ..
4. Now as I read sub-section (4), it gives the RDO power
E
either to allow the application of the landlord or to dismiss it after
he has held a summary enquiry into the matter. If the application
is allowed an order of eviction has to be passed. If it is dismissed
the proceedings again come to an end. However, if the ground
of eviction is non-payment of rent, the RDO is closed with power
to allow the cultivating tenant to deposit the arrears and costs as
F directed. The power is discretionary and, while exercising the same,
it is not incumbent on the RDO to grant time. If the legislature
intended to make it obligatory on the part of the RDO to fix a
time for deposit of the arrears in all cases covered by clause (a) or
clause (aa) of sub-section (2) there i11 no reason why it should have
used the word "may" in relation to the grant of time. Support for
G this view is available in clause (b) of sub-section (3) wherin, the
legislature has directed :
"If the Court finds that any tum ii due it i;ball allow
If the cultivating tenant !IUCh time ·a• it may consider just and
rea1>onable......." (empha11ii 1iupplied)
CHINNAMARKTHIAN v. AYYVOO (Koshal, J.) 165
In this situation it must be held that while the opportunity of A
depositi:ig the arrears of rent cannot be denied to a cultivating
tenant during th<! course of proceedings under sub·section (3 ), the
same is not available as of right under clause (b) of sub-section 4.
The difference in the language used by the legislature is significant
and not without purpose. The intention of the legislature appears
to be that normally a defaulting tenant must seek the help of the B
Court all by himself and that if he does so he must be protected;
but that a defaulting tenant who waits for payment of rent till he
•• is sought to be evicted by the landlord is not necessarily entitled to
the same 'protection. Circumstances may exist which may ~place
him at par with a tenant covered by sub-section (3) but then it may
not necessarily be so. That is why it is left to the discretion of the c
- RDO to grant time to the cultivating tenant or to deny him that
opportunity. An example of a case in which no time should be
allowed would be that of a tenant who, although in affluent circum-
stances at all relevant point of time, has failed to make payment of
rent year after year in spite of repeated demads from an otherwise
indigent landlord and whose conduct is, therefore, contumacious D
calling for no sympathy or concession. The extension to him of the
same facility which .is afforded to a willing tenant under sub-section
(3) would be uncalled for and in fact unjust.
Nor do I find why the word "may" occuring in clause (b) of
sub-section (4) be not given its ordinary meaning ·as denoting the E
conferment of a discretion on the RDO and be equated with "shall"
so as to make it obligatory on him to grant time to the cultivating
tenant.
5. Subject to the disagreement expressed by me above I
concur with the judgment of Desai, J. F
MISRA, J. I agree with my learned brother, Koshal, J.
N.V.K. Appeals allowed
•
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