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1984 DIGILAW 143 (MAD)

Hari Krishnan (died) v. Haji Fathima Beevi

1984-04-05

S.SWAMIKKANNU

body1984
ORDER: 1. This Civil revision petition is filed under section 115 of the Civil Procedure Code and under section 10 of the Pondicherry Cultivating Tenants Protection Act, 1970 (hereinafter called the Act) by the respondent in O.P.No.28 of 1980 on the file of the Revenue Court, Karaikal. The revision petitioner herein died and so by the Order of this Court dated 27-9-1983 in C.M.P.No.11766 of 1983 the legal representatives of the petitioner had been brought on record. The respondent herein, Raji Fathima Beevi, filed before the Presiding Officer, Revenue Court, Karaikal O.P.No.28 of 1980 under section 3(A)(1) of the Act praying - to pass an order directing the petitioner herein to pay the respondent herein, the rental arrears claimed; in the event of his failing to do so to pass an order directing eviction. On the point whether the revision petitioner herein is in arrears of 220 kalams of paddy for a period of four years effective from 1976-77, 1977-78, 1978-79 and 1979-80 and whether he has defaulted payment of arrears of rental paddy, the lower court had held that the revision petitioner herein is in arrears of 220 kalams of paddy for the period of four years effective from 1976-77 to 1979-80, the value of which amounted to Rs.5,805-80 no receipt for payment of paddy in support of the claim of the revision petitioner herein was produced before the lower court. Further more, this court has confirmed 55 kalams of paddy as the rent per year as held by the lower Court in O.P.No.18 of 1976. Therefore, the lower court directed the revision petitioner herein to deposit the above either in cash or in kind into the lower court within two months from the date of the order viz. 7-10-1982 failing which the revision petitioner herein shall be evicted from the petition mentioned lands. It is further stated in the order under revision that the revision petitioner herein should report compliance of the terms of the order on or before 7-12-1982. 2. On behalf of the respondent herein P.W.1 Ganesan was examined and Exhibits P-1 to P-4 were filed. On behalf of the revision petitioner, the revision petitioner himself had gone into the box and examined himself as P.W.1. No document was filed on behalf of the revision petitioner before the lower court. 3. 2. On behalf of the respondent herein P.W.1 Ganesan was examined and Exhibits P-1 to P-4 were filed. On behalf of the revision petitioner, the revision petitioner himself had gone into the box and examined himself as P.W.1. No document was filed on behalf of the revision petitioner before the lower court. 3. It is submitted on behalf of the tenant revision petitioner herein that the lower court's order under revision inasmuch as it couples to order of eviction along with the order granting time for the deposit of the arrears of rent found by it to be due and payable by the revision petitioner herein and such a composite order is against the principle involved in section 3(4) of the Act. In this regard, the learned counsel for the revision petitioner refers to the decision in Chinnamarka-thian v. Ayyavoo Chinnamarka-thian v. Ayyavoo (1982)1 S.C.J.142= (1982)1 MLJ. (S.C.)17= (1982)1 S.C.C.159= A.I.R.1982 S.C.137 where it was held that when the Revenue Divisional Officer allows time to a culti-vating 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. As order of that type can, in terms of the section, only be passed if the cultivating tenant fails to deposit the sum as directed. In the said decision, therefore, the orders of the Revenue Divisional Officer directing eviction of the tenants were held to have been passed in contravention of the express provisions of the Act and were without jurisdiction. In paragraph 14 of the said judgment, the Supreme Court observed as follows: “It was seriously contended by Mr.Natesan as to what is there in the scheme of the Act and especially in the language of subsection (4)(b) which would make it impermissible for the Revenue 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 canvassed by Mr.Natesan is adopted the Revenue Divisional Officer would be denying to himself a more beneficial jurisdiction conferred upon him, namely, to extend the time for making the payment if on 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 analogous provision may be noticed. It is a well accepted principle statutorily recognised in section 148 of Civil Procedure Code that where a period is fixed or granted by the court for doing any act prescribed or allowed by the code, the 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, denying or withholding such 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 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 alternation or modification of circumstances 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. 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 MAHANATH RAM DAS v. GANGA DAS MAHANATH RAM DAS v. GANGA DAS (1962)1 S.C.J.427 = (1962)1 An.W.R. (S.C.) 167= (1962)1 MLJ. In MAHANATH RAM DAS v. GANGA DAS MAHANATH RAM DAS v. GANGA DAS (1962)1 S.C.J.427 = (1962)1 An.W.R. (S.C.) 167= (1962)1 MLJ. (S.C.)167= (1961)3 S.C.R.763= A.I.R.1961 S.C.882 in the context of a failure to pay requisite court-fee within the time allowed by the court subject to the conditional order that failure to pay would result in dismissal of the appeal, this Court observed as under (at page 883 of A.I.R.) [Para. 5] “How undesirable it is to fix time peremptorily for 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 inexpedient. Such procedural orders, though peremptory (conditional decree apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely, estop a court from taking note of events and circumstances which happen within the time fixed. For example, it cannot aid that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the court was powerless to extend it. Such orders 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 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 statutes or on relevant equitable consideration if the statute does not deny such consideration. In order to avoid 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 accept the construction canvassed for and on behalf of the respondents.” 4. In order to avoid 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 accept the construction canvassed for and on behalf of the respondents.” 4. The Supreme Court has held in the above decision that the scheme of sub- section 4(b) of section 3 requires the Revenue Divisional Officer to determine arrears, ascertain the exact amount payable by the tenant, fix the time for payment 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. 5. The learned counsel for the revision petitioner herein also refers to the decision in THAMIRASSU v. KAMALATHAMMAL THAMIRASSU v. KAMALATHAMMAL (1984)1 MLJ.11 in support of his contention. In the said decision it was held that there cannot be a direction by the presiding officer in the same order that the failure to deposit the paddy or its value within two months will result in the tenant being evicted from the petition mentioned lands and that this was against the ratio decidendi of the Supreme Court embedded in the decision in Chinnamarakathian v. Ayyavoo Chinnamarakathian v. Ayyavoo (1982)1 S.C.J.142 = (1982)1 MLJ. (S.C)17= A.I.R.1982 S.C.137. 6. On the other hand, Mr.Yamunan, learned counsel for the respondent submits that the order under revision is certainly against the ratio decidandi of both the decisions referred to above, but yet what he would submit is that so far as the finding relating to the actual amount of arrears of rent has to be retained and if this Court is inclined to set aside the order in revision and remit it back it may be only with respect to granting of time after hearing both sides and the order of remand should be confined only to the grant of reasonable time being granted for the payment of arrears of rent and nothing more. 7. The order under revision is certainly to be revised. But to what extend is the question. 7. The order under revision is certainly to be revised. But to what extend is the question. In this view, the observation in the last paragraph of the order under revision clearly shows that the lower court had not only found the actual quantum of arrears liable to be paid by the revision petitioner herein but also added in the course of the very same trend that the order pronounced by him will work itself out on the event of the failure on the part of the revision petitioner herein not complying with his order within a specific date. At the same time, it is relevant to note that the lower court had given a date for report relating to the compliance of the order. But this subsequent order requiring the revision petitioner herein to report does not in any way cure the defect in the order of the lower court in its previous sentence wherein it had contravened the ratio decidendi of the Supreme Court by coupling the order of eviction with its finding that the revision petitioner had committed default in the payment of rent. In the circumstances, the order under revision is revised to the extent viz., the clause stating the eviction would follow if the amount is not deposited within the specified time is set aside. In other respects regarding the quantum of arrears and the exact amount to be deposited in the lower court, the order under revision is retained. The matter is remanded for the specific purpose of passing an order of eviction in the case of default to pay after a report as contemplated by the lower court's order in complied with, because there is no power in the lower court viz., the Revenue Court to pass an order for eviction at that stage. In the circumstances, the civil revision petition is allowed and the matter is remitted to the lower court for fresh disposal in accordance with law and in the light of the observations made above. There would however be no order as to costs. Petition allowed.