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TMI Blog1981 (12) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... for short), the Revenue Divisional officer erred in passing a composite order for payment of rent found to be in arrears within the time prescribed by him and on default, without any further proceeding, directing eviction of the tenants. 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 assignment Ext. P-5 dated 5th December, 1960, Nachayammal, the vendor of the respondents assigned the rent in arrears for the period 1958-59 and 1959-60 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 accordingly filed C.T.P.A. Nos. 1, 2 and 3 of 1961 against the respective tenants on January 2, 1951, for eviction of the tenants on the ground that they were in arrears of rent due and payable for the years 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, in which it was held as under, was correct: Having regard to the object of the enactment it is clear that the law 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 circumstances by reason of which the tenant might find it difficult to comply with the direction to deposit the arrears by the date fixed. If the date so fixed initially is to be an inflexible and unalterable date, it is bound to work considerable hardship upon the tenants. It would be a mechanical application of the provision of the section for the purpose of eviction. The object of the section is to avoid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? (3) What is the impact of answer of the aforementioned two questions on his jurisdiction to pass a composite order ? Section 3 and the relevant sub-sections read as under: 3(1) 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; X X X (4)(a) Every landlord seeking to evict A cultivating 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation 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. In the context in 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, the crop, and the relative circumstance of the tenant would be his present financial position to repair the default. On both sides there can be number of circumstances one can envisage which, if properly brought to the notice of the Revenue Divisional Officer, would influence his judicial decision as to the length of time 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 circumstances that he could not pay even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 correct one having regard to the avowed object of the Act, namely, preventing 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 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. If sub-section (4)(b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a disregard of the jurisdiction in that while directing time simultaneously 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 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 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, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this fact, 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 failed to comply with the order made by the Court and if after notice to 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 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 prescribed by the High Court and these orders have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequence 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 qualified for the protection of the Act and they were not liable to be evicted. Accordingly, all the three appeals are allowed and the order for eviction of the tenants in each case is set aside but in the circumstances of the case with no order as to costs. KOSHAL, J. I have had the advantage of going through the judgment 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 (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 future. 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 directing eviction and covered by these appeals were thus passed in contravention of the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 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 respect to the rent payable to the landlord and accrued due subsequent to the 31st March 1954, 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 not pay such rent within a month after such rent becomes due; or (b) xx xx xx (c) xx xx xx (d) xx xx xx Explanation I- xx xx xx Explanation II- xx 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 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 commencement of this Act; (ii) in the case of rent accrued due after the commencement of this Act, within a month after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m as directed, the Revenue Divisional officer shall pass an order for eviction. An analysis of the section clearly leads to certain indisputable propositions. Sub-section (I) creates a bar against the eviction of a cultivating tenant from his holding or any part thereof, by or at the instance of this landlord, even though the latter seeks to do so in execution of a decree or order of a Court. This bar is subject only 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 (I) 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 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 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenant during the 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 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 circumstances at all relevant point of time, has failed to make payment of rent year after year in spite of repeated demands from an otherwise indigent landlord and whose conduct is, therefore, contumacious calling for no sympathy or concession. The extension to him of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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