Kathan Muthiriyar And Anr. vs Gopal Rathinam And Anr. on 5 October, 1993

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66
Madras High Court
Kathan Muthiriyar And Anr. vs Gopal Rathinam And Anr. on 5 October, 1993
Equivalent citations: (1994) 1 MLJ 373
Author: P Singh

ORDER

Pratap Singh, J.

1. These civil revision petitions are directed against the orders passed in E.P. No. 400 of 1987 in Petition No. 1498 of 1986 and in E.P. No. 596ofl987inPetition No. 1698ofl986on the file of Special Deputy Collector (Revenue Court), Lalgudi.

2. Short facts are: Regarding C.R.P. No. 1288 of 1988, the respondent had filed petition for eviction on the ground of arrears of rent. The revenue court found that he was in arrears of rent to the tune of Rs. 5,414 and gave time for payment till 31.3.1987. He had not paid the amount. So the respondent filed E.P. No. 400 of 1987 and the Revenue court had passed order of eviction. Aggrieved by that order, C.R.P. No. 1288 of 1988 is filed.

3. Regarding C.R.P. No. 1289 of 1988, the respondent filed petition for eviction on the ground of arrears of rent. Here again, the Revenue Court has found that the revision petitioner had to pay arrears and gave time till 30.10.1987. Since the revision petitioner had not paid the arrears within the specified time, the respondent filed E.P. No. 596 of 1987 and the Revenue Court had passed order of eviction. Aggrieved by the said court, C.R.P. No. 1289 of 1988 is filed.

4. Mr. D. Peter Francis, the learned Counsel appearing for the revision petitioner, would submit that the revision petitioner in C.R.P. No. 1288 of 1988 had paid Rs. 3,000 before the Revenue Court and later Rs. 600 in the execution proceedings and after the civil revision petition was filed, in pursuance of the order passed in the petition for stay, had paid entire arrears and likewise in C.R.P. No. 1289 of 1988 also part of the amount was paid earlier and the remaining part was paid after the civil revision petition was filed and thus the entire arrears claimed in the two petitions were paid to the respondent. He would further submit that by virtue of the provisions of Tamil Nadu Act 41 of 1989, entire proceedings, including delivery proceeding was stayed and by virtue of Tamil Nadu Act 38 of 1990, when entire arrears were paid, order of eviction cannot be enforced. Per contra, Mr. N. Damodaran, the learned Counsel appearing for the respondent in C.R.P. No. 1288 of 1988 and Mr. A.S. Vijayaraghavan, the learned Counsel appearing for. the respondent in C.R.P. No. 1289 of 1988, would submit that the provisions of the Tamil Nadu Act 41 of 1989 are not applicable to this case, since the revision petitioners have not complied with the provisions laid therein.

5. I have carefully considered the submissions made by rival counsels. It is not in dispute that the revenue court had found that the revision petitioners were in arrears of rent and gave time for payment and that these revision petitioners had not paid the entire arrears of rent within the specified date. It is also not in dispute that since the entire rent was not paid within the specified date, the respondent filed two execution petitions and orders of eviction directing delivery were passed. It has been repeatedly held by this Court that when the cultivating tenant fails to deposit the arrears of rent in the revenue court within the time granted by the revenue court, in an application filed by the landlord, the revenue court has to pass order of eviction. As such, order of eviction and directing delivery to the respondent by the court below in these two execution petitions are in order.

6. I shall next consider as to whether Act 41 of 1989 and Act 38 of 1990 which were enacted by the legislature subsequent to the passing of these impugned orders of eviction, will have the effect of vacating the impugned orders. By virtue of Section 1, Sub-section (3) of Act 41 of 1989. The Act shall be deemed to have come into force on 1.10.86 and shall remain in force upto and inclusive of 31.3.1990. As per Section 4 of the said Act, all applications under the Tenants Protection Act and all proceedings in execution of orders and other proceedings for eviction of a cultivating tenant on the ground that he is in arrears with respect to the rent payable to the landlord and pending before a Revenue Divisional Officer, a court or other authority, as the case may be, shall stand stayed. As per Section 6 of the said Act, all applications for eviction of a cultivating tenant under the Tenants Protection Act and proceedings stayed under this Act, shall, after the expiry of this period be proceeded with subject to provisions of any law which may then be in force, from the stage which had been reached when the application, suit or proceeding was stayed. A conjoint reading of Sections 4 and 6 referred to supra would show that during the period when the Act was in force viz. 1.10.1986 to 31.3.1990, any pending proceeding coming within the ambit of Section 4 shall stand stayed, and by virtue of Section 6, after the expiry of period, the proceeding can be proceeded with. In the instant case, eviction was already ordered. But the proceeding is still pending, inasmuch as these civil revision petitions were filed against those orders of eviction. So they shall stand stayed till 31.3.1990. Thereafter, it can be proceeded with from the stage where it was left, at the time of stay. So now there is no iupedinient to further proceed and get possession, in pursuance of the order of eviction. Act 41 of 1989 would not stand in the way.

7. I shall next consider the submission of Mr. D. Peter Francis that by virtue of provision of Act 38 of 1990, the order of eviction shall get vacated. The date of publication of this Act in the gazette was 10.10.1990. I shall at the outset refer to the relevant provisions in this Act. “Current rent” is defined in Section 3(d) and it reads as follows:

Current rent means the whole of the rent due for the fasli year commencing on the 1st day of July, 1989 and ending with the 30th day of June, 1990.

Date of publication of the Act is defined in Section 3(a) of the Act and it reads as follows:

date of the publication of this Act’ means the date of the publication of this Act in the Tamil Nadu Government Gazette.

Section 4 reads 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 four months from the date of such publication, intimatehisoptioninwritingtothecompetent authority-

(1) 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, 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 (1) shall be final.

8. Under Section 5 of the Act, relief is given for payment of arrears of rent. If a 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.

In the instant case, the revision petitioner had not exercised the option under Section 4 of the Act and not made payment or deposit as stipulated under Section 5 Sub-section (1).

9. Sub-sections (4) and (5) of Scc.5 of the Act are relevant and they read as follows:

(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 nonpayment of any such current rent or any arrears el rent, the court or competent authority shall, if the cultivating tenant pays or deposits under tltis Act, the current rentand the one-fourth of the drears 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 non-payment 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 or 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.

[Italics supplied]

In the instant cases, admittedly, the revision petitioners had not paid or deposited under this Act, the current rent and one-fourth of the arrears of rent. As such, the benefits of Section 5 would not accrue to the revision petitioners. Section 7 provides for relief for payment of arrears in instalments. This again requires the tenant to pay the current rent and one-third of the total amount of arrears of rent for the said years. Admittedly, no current rent has been paid by the revision petitioners. Hence neither they can claim benefits of Section 7 of the Act. Neither Section 8 of the Act is applicable. On the facts and circumstances of the case, the revision petitioners are neither entitled to claim the, benefits of Act 38 of 1990.

10. None of the submissions made by Mr. D. Peter Francis finds acceptance with me and consequently both the civil revision petitions fail and shall stand dismissed. No costs.

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