Mariyayee Ammal v. Vadamalai and Another — 1994 DIGILAW 376 (MAD)

Judgment : The respondents in the civil revision petition are cultivating 1 acre 92 cents in S.F.No.24/ 2 of Nachikurichi village belonging to the revision petitioner. The latter instituted O.S.No.362 of 1988 in the Court of Sub Judge of Trichy for recovery for a sum of Rs.23,068 due to her by way of arrears of rent. During the pendency of the suit the respondents filed I.A.No.1.33 of 1992 under Sec.5(2) or under Sec.7(2), of Tamil Nadu Act 38 of 1990 seeking to deposit the arrears of rent with prayer to dismiss the suit. The revision petitioner resisted that application contending that since the respondents have raised plantain crops without her prior consent, she has filed the suit for damages only. There was no privity of contract between them for raising plantain crops. Simply because they have filed an application under Act 38 of 1990, before the Revenue Court, they cannot be absolved of their liability to pay the suit amount. The deposit before the Revenue Court was received only without prejudice to the suit claim by the plaintiff and so the suit cannot be dismissed for the reason set out in the application. Learned Sub Judge held that the suit was liable to be dismissed and allowed the application. This order is challenged in this revision petition. 2. Learned counsel for the revision petitioner submits at the out set that the suit in O.S.No.362 of 1988 was not one for recovery of arrears of rent or for eviction, but it was for the recovery of damages for use and occupation and there existed no relationship landlord and the tenant between them. A perusal of the averments in the plaint would indicate that the respondents are cultivating the suit land under the revision petitioner is not disputed. Her only grievance is that they have raised banana crops unauthorisedly and as such they are liable to pay damages. There is no substance in this argument since the respondents herein are statutory tenants. That they have started to raise plantain crops from 1986-87 docs not put an end to them relationship of landlord and tenant. 3. Her only grievance is that they have raised banana crops unauthorisedly and as such they are liable to pay damages. There is no substance in this argument since the respondents herein are statutory tenants. That they have started to raise plantain crops from 1986-87 docs not put an end to them relationship of landlord and tenant. 3. The next contention of learned counsel for the revision petition is that the respondents have not paid the arrears of rent as prescribed under Tamil Nadu, Act 38 of 1990, and they have failed to intimate their option for payment of arrears of rent in writing before the competent authority within the time prescribed under Scc.4(1) of Act 38 of 1990. Ex.P-1 is the receipt received by the revision petitioner on 23. 1991 acknowledging the payment of lease amount as calculated under Sec.5(1) of the Act. Sec.4(1) of the Tamil Nadu Cultivating Tenants Arrears of Rent Relief Act, 1990 reads that 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 and outstanding on the date of the publication of this Act shall, within two months from the date of such publication intimate his option in writing to the competent authority to pay the current rent and the one-fourth of the said arrears of rent in the manner specified in Part II or 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.Under Sub-sec.(2), the option given under Sub-scc. (1) shall be final. This Act was published on 10. 1990 and the option should have been exercised on or before 12. 1990. But an amendment was passed in Act 15 of 1994, which was preceded by Ordinance 10 of 1990. In the Act, the time for exercising the option was extended by two months. Thus the tenants were given time till 2. 1991 for exercising their option. So according to the revision petitioner, the respondents should have exercised their option before 2. 1991. As since this has not been done, in time prescribed, the application is not maintainable. In the Act, the time for exercising the option was extended by two months. Thus the tenants were given time till 2. 1991 for exercising their option. So according to the revision petitioner, the respondents should have exercised their option before 2. 1991. As since this has not been done, in time prescribed, the application is not maintainable. It does not appear from the affidavit filed in I.A.No.133 of 1992 that the tenants have exercised any such option. Instead it reads as if the tenants have already paid the rent in R.A.No.1516 of 1990 before the Revenue Court, Salem. The affidavit also stated that the money has been deposited to the account of the landlord. On a careful reading of the affidavit at page 11 of the typed set, I am unable to make out what exactly the tenants want to convey except that they pray for dismissal of the suit. 4. Learned counsel for the revision petitioner landlord next contended that correct rent has not been paid by the tenants. The revision petitioner had received the amount tendered, only without prejudice to her claim pending the suit. But the revision petitioner has not disputed the correctness of the amount in her counter in I.A.No.133 of 1992. While so, it cannot now be said that the amount received by the revision petitioner falls short of the exact arrears due. 5. The next argument of learned counsel for the revision petitioner is that the tenants ought to have deposited the amount only in the Munsif Court where the suit was pending. Under Sec.5(1) of Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act 38 of 1990, all arrears payable by a cultivating tenant to the landlord on the date of publication of the Act shall be deemed to be discharged, if such cultivating tenant pays to the landlord or deposits in the court before the competent authority to the account of the landlord in the manner specified in Sub-secs.(2) and (3). It is obvious that such deposit should be made in the court if a proceedings is pending in the court. In cases where proceedings for eviction are pending or orders of eviction have been passed, the deposit, has to be made in the Revenue Court which is the competent authority. It is obvious that such deposit should be made in the court if a proceedings is pending in the court. In cases where proceedings for eviction are pending or orders of eviction have been passed, the deposit, has to be made in the Revenue Court which is the competent authority. Since the respondents herein have not chosen to make the deposit in the Court of Sub Judge, Trichy where the suit is pending it cannot be said that there has been a deposit as contemplated under Sec.5(1) when alone the arrears shall be deemed to have been wiped out. In Ammasai Gounder v. K.Namagiri, (1992)2 L.W. 679 . Srinivasan, J., has laid down that when the section speaks or court or competent authority it does not leave the choice to the tenant. If a proceeding is pending in a court the deposit should be made only in the court. If a proceeding is before the Revenue Divisional Officer, who happens to be the competent authority under the Act, the deposit should be made only with the competent authority. It is not open to a tenant to make a deposit before the competent authority when the matter is before the court. In cases in which decrees have already been passed the tenant should make the deposit only in court. If the legislature had thought that a deposit should be made before the competent authority in all events, it would have made such a provision. But the legislature did not intend to do so. The intention of the legislature is that in matters which had gone to court, the deposit must be made with the court so that the proceedings can be conveniently disposed of by the court. It is not open to the tenant to make a deposit before the competent authority on the ground that on the date of publication of the Act there was no proceeding actually pending before a court though a decree had been passed and an execution proceeding could be filed in that court. Consequently, the deposit made by the petitioner in this case, even if it is assumed for the sake of argument that the petitioner deposited the correct amount due under the Act, is not a valid one to be recognised by the court for the purpose of vacating the decree or stopping execution. Consequently, the deposit made by the petitioner in this case, even if it is assumed for the sake of argument that the petitioner deposited the correct amount due under the Act, is not a valid one to be recognised by the court for the purpose of vacating the decree or stopping execution. On the ratio laid down in this decision, it is evident that there is no proper deposit in this case so as to entitle the tenants to claim the benefits of the Act and the reasoning of the trial Judge that because the landlord received the money in person from the tenants, the suit has to be dismissed under Sec.5(4) of Act 38 of 1990, is unsustainable. 6. In the result, the civil revision petition is allowed and the order of the court below in I.ANo.133 of 1992, is set aside and that petition is dismissed. Parties have to bear their respective costs throughout. O.S.No.362 of 1988 is restored to file.