BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2011 CORAM THE HONOURABLE MR. JUSTICE M.VENUGOPAL C.R.P.(NPD)(MD)No. 1747 of 2002 and C.M.P.No.18290 of 2002 V.Periakaruppan Ambalam ... Petitioner Vs. 1. K.Sivashankaran(died) 2. S.Meenambal 3. S.Gandhi 4. S.Mahalakshmi 5. S.Nagasundaram ... Respondents (R.2 to R.5 L.Rs of the deceased R.1 brought on record as per order of this Court in C.M.P.No.18235 of 2003 dated ..03.2011) Prayer Civil Revision Petition is filed under Section 115 of Code of Civil Procedure against the order dated 09.09.2002 passed in E.A.No.102 of 2002 in E.P.No.62 of 1999 in O.S.No.18 of 1997, on the file of the District Munsif of Madurai Taluk at Madurai. !For Petitioner ... Mr.S.Subbiah ^For Respondent ... Mr.T.R.Rajaraman *** :ORDER
The Revision Petitioner/Respondent/Defendant has filed the present Civil
Revision Petition as against the order dated 09.09.2002 in E.A.No.102 of 2002 in
E.P.No.62 of 1999, in O.S.No.18 of 1997 passed by the learned District Munsif,
Madurai Taluk, Madurai.
2. The Executing Court, while passing orders in E.A.NO.102 of 2002 in
O.P.No.62 of 1999 in O.S.No.18 of 1997 on 09.09.2002 as among other things
observed that “Heard the petitioner. Respondent called absent. No
representation. The petitioner has already sought eviction of the respondent on
the basis of the order passed in C.R.P.No.2706 of 2000 by the Honourable High
Court Chennai, etc.,” and resultantly ordered delivery of possession to the
Respondent/plaintiff/petitioner (later deceased) by 03.10.2002.
3. Being aggrieved against the order dated 09.09.2002 passed in E.A.No.102
of 2002 in E.P.No.62 of 1999 in O.S.No.18 of 1997 by the Executing Court, the
Revision Petitioner/Respondent/Defendant has preferred the present Civil
Revision Petition.
4. According to the learned Counsel for the
petitioner/respondent/defendant, the impugned order of the Executing Court in
E.A.No.102 of 2002 in E.P.No.62 of 1999 in O.S.No.18 of 1997 dated 09.09.2002 is
contrary to law and the same is an erroneous one.
5. It is the further contention of the learned Counsel for the
petitioner/respondent/defendant that the Executing Court has erroneously
construed the order dated 21.12.2001 passed for fasli year 1406 for the second
crop and for the payment of lease paddy in kind for subsequent faslis and there
cannot be any delivery of possession as there is no decree at all in favour of
the respondent for possession.
6. Advancing his arguments, it is a contention of the Learned Counsel for
the revision petitioner/defendant that when the revision petitioner being a
statutory tenant entitled to protection as per Tamil Nadu Cultivating Tenants
Protection Act in and by which no Cultivating Tenant shall be evicted from his
holding or any part thereof by or at the instance of his landlord and he cannot
be evicted except in accordance with the provision contained under the said Act.
7. Further, the Learned Counsel for the petitioner/defendant submits that
the order passed in C.R.P.No.2706 of 2000 speaks of to the effect “that it is
open to the respondent to seek for possession but that order does not declare
the entitlement of the respondent to take possession of the suit property from
the revision petitioner in the present proceedings which has nothing to do with
the grant of possession, hence there cannot be any order of delivery in favour
of the respondent.”
8. Also, it is the contention of the learned Counsel for the petitioner
that the Executing Court having dismissed the E.P.No.162 of 1999 as an
infructuous one, it cannot direct the delivery of possession in E.A.No.102 of
2002.
9. The pith and substance of the submission of the learned Counsel for the
petitioner/defendant is that an Executing Court has no jurisdiction to pass an
order against a cultivating tenant who is entitled to the protection as per
Section 3(4) of the said Act and hence ought to have dismissed the application.
10. In short, the learned Counsel for the petitioner/defendant contends
that the Executing Court has not looked into the material factual and legal
aspects of the matter in a proper and real perspective, which has resulted in
serious miscarriage of justice.
11. Per contra, it is the contention of the learned Counsel for the
Respondents (Legal Representatives of the deceased plaintiff) that their father
during his life time has filed a suit in O.S.No.18 of 1997 against the revision
petitioner/defendant on the file of the District Munsif Court, Madurai Taluk,
Madurai. On 12.11.1997, a decree has been passed in the said suit that the
revision petitioner/defendant has to measure the twenty bags of paddy
(contending 48 Padi) in respect of the suit property for the fasli 1406 the
second cultivation and for subsequent faslis as paddy itself, after receiving
the harvest notice from the revision petitioner/defendant to the plaintiff
(respondents/ deceased father)
12. In the affidavit in E.A.NO.102 of 2002 filed by the respondents’
father (deceased plaintiff), it is mentioned that a decree has been passed in
favour of their father directing the revision petitioner/respondent/defendant to
deliver 20 bags of paddy of 48 Madras measures for each crop (Bogum) from the
second crop of 1406 Fasli etc. and the revision petitioner filed E.A.NO.168/99
praying to pass an order that the decree in O.S.No.18/97 is inexecutable and
incapable of execution and such E.P.No.62/1999 is to be dismissed and that an
order has been passed by allowing the said application by holding that a
separate suit has to be filed for collecting of rent in respect of each year.
13. Moreover, in the affidavit in E.P.No.102 of 2002, it is also averred
that as against the order dated 08.10.1999 in E.A.No.168 of 1999, the
petitioners’ father (deceased plaintiff) has filed C.R.P.No.2706 of 2000 before
the Honourable High Court, Madras and the Civil Revision Petition has been
allowed and the order passed in E.A.NO.168/1999 has been set aside. Added
further in the said Civil Revision Petition, a direction has been issued to
proceed with E.P.No.62 of 1999 and dispose of the same within three months.
14. Apart from the above in C.R.P.No.2706/2000, the Honourable High Court
has observed that the respondent (revision petitioner) is in arrears of rent
even in respect of subsequent period after the decree in O.S.No.18/1997 and he
is liable to be evicted from the land. Moreover an opportunity has been granted
to the Respondents’ father (deceased father/plaintiff) to seek for recovery of
possession in the same execution petition to evict the respondent pursuant to
the order.
15. The Revision petitioner in his counter in E.A.No.102 of 2002 as among
other things averred that he filed an E.A.No.168 of 1999 that in O.S.No.18 of
1997 is inexecutable one for subsequent faslies and the same has been allowed
and E.P.No.62 of 1999 has been dismissed and the observation made in
C.R.P.No.2706 of 2000 cannot be executed and the Executing Court has not
jurisdiction to evict the cultivating tenant, since the revision petitioner is
entitled to the benefits under the Cultivating Tenants Protection Act.
16. Continuing further in the said counter, the revision petitioner has
also added that the claims of arrears of rent without a decree is not
maintainable and that the Court has to fix the arrears of rent and then pass
order and for the reason of failure of crops, he is not liable to pay rent and
also that there is no direction to the Executing Court to pass an order of
eviction by the Honourable High Court.
17. The Learned Counsel for the petitioner/Respondent/defendant in support
of of the contention that the decree passed by the trial Court in O.S.No.18 of
1997 dated 12.11.1997 lack inherent jurisdiction to entertain the suit in favour
of the bar as per Section 3(1) of Tamil Nadu Cultivating Tenants Protection Act
and as such the decree passed is nullity etc., relies on the decision of the
Honourable Supreme Court in Sarwan Kumar and Another Vs. Madan Lal Aggarwal
reported in (2003)4 Supreme Court Cases 147, wherein it held that the decree
passed by the Civil Court lacking inherent jurisdiction to entertain the suit in
view of the specific bar contained in special Act governing the case would be a
nullity and therefore, objection regarding invalidity of such decree can be
raised at any later stage including the stage of execution of the decree or any
other collateral proceedings.
18. He also invites the attention of this Court to the decision of
Honourable High Court in Manish Goel Vs. Rohini Goel reported in (2010)4 Supreme
Court Cases 393, wherein it is observed as follows:
“14. Generally, no Court has competence to issue a direction contrary to law nor
can the Court direct an authority to act in contravention of the statutory
provisions. The Courts are meant to enforce the rule of law and not to pass the
orders or directions which are contrary to what has been injected by law. (Vide
State of Punjab V Renuka Singla reported in (1994)1 SCC 175, State of U.P. V.
Harish Chandra reported in (1996)9 SCC 309, Union of India V. Kirloskar
Pneumatic Co. Ltd. reported in (1996)4 SCC 453, University of Allahabad V. Dr.
Anand Prakash Mishra reported in (1997)10 SCC 264, and Karnataka SRTC V.
Ashrafulla Khan reported (2002)2 SCC 560.
19. The Learned Counsel for the respondents (Legal Representatives of the
deceased plaintiff) places reliance on the decision of the Honourable Supreme
Court in Shipping Corporation of India Ltd., V. Machado Brothers and Others
reported in AIR 2004 Supreme Court 2093, wherein it is laid down as follows:
“If there is no specific provision which prohibits the grant of relief sought in
an application filed under Section 151, the Courts have all the necessary powers
under Section 151 to make a suitable order to prevent the abuse of the process
of Court. Therefore, the Court exercising the power under Section 151, CPC
first has to consider whether exercise of such power is expressly prohibited by
any other provisions of the Code and if there is no such prohibition then the
Court will consider whether such power should be exercised or not on the basis
of facts mentioned in the application.”
20. At this stage, this Court pertinently points out that Section 3 (4)(1)
speaks as follows:
“Right to restoration of possession: Every cultivating tenant who was in
possession of any land on the 1st December, 1953 and who is not in possession
thereof at the commencement of this Act shall, on application to the Revenue
Divisional Officer, be entitled to be restored to such possession on the same
terms as those applicable to the possession of the land on the 1st December
1953.”
21. Also, Section 3(4)(a) of the Act enjoins as follows:
“the total extent of land held by such landlord inclusive of the land, if any,
held by him as a tenant does not exceed the extent specified in the Explanation
below.”
22. This Court aptly points out the decision in N.Sreedharan Thampi V.
Velayadhan Pillai, reported in AIR 1984 Mad 100, wherein it is held that where
the defendants are cultivating tenants, the Civil Court has no jurisdiction to
execute the decree for possession in view of the specific provisions of Section
3(4) of the Act and the matter has to be gone into only by the Revenue
Divisional Officer for the relief asked for, namely, recovery of possession.
23. In this Connection it is not out of place for this Court to make a
relevant mention that the effect of the proviso inserted to Section 3(4)(b) of
the Act is that the Revenue Court is not empowered to direct the tenant to
deposit the time barred arrears of rent as per the decision in Palani Gounder V.
S.P.Thangavel Gounder reported in 1988(1) Mad.L.W. 499.
24. The Learned Counsel for the respondents (Legal Representatives of the
deceased plaintiff) submits that in C.R.P.No.2706 of 2000, dated 21.12.2001
(between Respondents’ father/the deceased plaintiff Vs. respondent(defendant),
it is inter alia observed by the High Court that in view of the admitted fact of
arrears of rent, it is unnecessary to compel the petitioner to initiate separate
proceedings to evict the respondent. Since the respondent is undisputedly in
arrears of rent and evading the payment on technical grounds, this Court is of
the view that he is liable to surrender possession to the petitioner. Hence, it
is open to the petitioner to seek for recovery of possession also in the same
execution petition to evict the respondent.
25. It is to be pointed out that merely because an observation has been
made by this Court in C.R.P.No.2706 of 2000 dated 21.12.2001, “… that it is
open to the petitioner to seek for recovery of possession also in the execution
petition to evict the respondent.” the same will not be of any assistance to the
Respondents (Legal Representatives of the deceased plaintiff), because the
relief of possession has to be looked into by the Revenue Divisional Officer
only as opined by this Court.
26. It is also brought to the notice of the High Court that the
Respondent/Defendant is not adhered to the additional order passed by this Court
in C.M.P.No.18290 of 2002 in C.R.P.No.1747 of 2002 dated 27.10.2005, wherein he
has been directed to deposit a sum of Rs.85,000/-(Rupees Eighty Five Thousand
only) to the credit of E.P.No.62 of 1999, on or before 30.11.2005, failing
which, stay granted shall be dismissed.
27. As far as the present case is concerned, the decree passed in
O.S.No.18 of 1997 dated 12.11.1997 is in favour of the Respondents’ father
(deceased plaintiff) in directing the Revision petitioner(Defendant) to deliver
20 bags of paddy of 48 Madras Measures for each crop from the second crop of
1406 fasli. Therefore, it is candidly clear that there is no decree in
O.S.No.18 of 1997 for evicting the revision petitioner/defendant from the land.
As per Section 3(4) of the Act, the issue of evicting the revision
petitioner/Defendant from the land is to be gone into only by the Revenue
Divisional Officer, namely the recovery of possession. Also A Revenue Court
under the Tamil Nadu Cultivating Tenants Protection Act will not have the power
to remit the rent due by a tenant on the ground of failure of crop as per the
decision of the High Court in P.Ramaswamy Gounder and another V Perianna Moopan
reported in (1959)1 Mad LJ 122. In the aforesaid decision it is held as follows:
“In the absence of any statutory provision enabling an authority to grant
remission, it is always a matter of grace by the landlord. A Revenue Court under
the Madras Cultivating Tenant Protection Act has no power to grant remission of
the agreed rent due by a tenant or any portion of it on the ground of failure of
crop. The Court has to ascertain the arrears of rent due on the basis of the
contract between the parties and the only remedy, if any, open to the tenant is
to apply for fixation of fair rent under the provisions of the Act.”
28. E.A.No.102 of 2002 filed by the Respondents’ Father (the Deceased
plaintiff) is not maintainable in law and subsequently, the order for delivery
of possession passed by the Executing Court in E.A.No.102 of 2002, dated
09.09.2002 is hereby set aside, to prevent the aberration of justice.
Subsequently, the Civil Revision Petition succeeds.
29. In the result, the Civil Revision Petition is allowed, leaving the
parties to bear their own costs. Consequently, the connected Miscellaneous
Petition is closed. The order passed by the Executing Court, dated 09.09.2002 in
E.A.No.102 of 2002 ordering delivery of possession by the Civil Revision
Petitioner is hereby set aside and E.A.No.102 of 2002 stands dismissed.
ssl
To
The District Munsif,
Madurai Taluk at Madurai.