Boorasamy Padayachi vs Muthukumara Mudaliar and Another

Srinivasan, J.—The petitioner in C.R.P. No. 1646 of 1989 is the tenant with respect to the land owned by the respondent in that civil

revision petition of an extent of 10.17 acres in S. Nos. 4/1, 4/2 and 148/2, Variyangaval village, Udayarpalayam Taluk, Tiruchirapalli District. The

landlord is the petitioner in CR.P. No. 2199 of 1993 and the tenant is the respondent therein. The landlord is the applicant in Contempt

Application No. 33 5 of 1993. The respondents there are: (1) Mr. B. Vittal, the concerned Revenue Divisional Officer and (2) the tenant. For the

sake of convenience, I will refer to the parties as landlord, tenant and the Revenue Divisional Officer (R.D.O.).

The landlord filed P. No. 808 of 1988 on the file of the Revenue Court, Lalgudi, for eviction of the tenant, u/s 3(4)(a) of the Tamil Nadu

Cultivating Tenants Protection Act (XXV of 1955). He had therein that the tenant agreed to pay one-half of the yield every year and he estimated

that 25 bags would be the yield every year. Thus, he claimed a share of 12 1/2 bags per year. According to the petition, the rent was not paid for

the years 1986-87 and 1987-88. He claimed a total of 25 bags and working out at the rate of Rs. 1,000 per bag, he claimed a sum of Rs. 25,000

by way of arrears of rent.

The respondent filed a counter stating that the terms of tenancy and the arrears of rents mentioned in the petition were not correct. It was also

his case that the gross yield mentioned in the petition was imaginary and per annum, the gross yield will be only 3 bags of cashew nut. According to

him under the provisions of Tamil Nadu Act 17 of 1980, he had to measure only 3/4 bags of cashew nut per annum. He referred to an earlier

petitions filed by the landlord in P. No. 778 of 1981 and 1347 of 1986. The tenant had not mentioned as to what was the rent agreed between the

parties in the counter statement.

The Revenue Court passed an order on 25.5.1989 holding that the tenant was liable to pay a sum of Rs. 13,635 for the two years in question

and granted time till 25.7.1989. The tenant did not deposit the amount but filed C.R.P. No. 1646 of 1989 in this Court challenging the order of the

Revenue Court. He obtained an order of interim stay on condition that he should deposit a sum of Rs. 3,500 within four weeks from 13.7.1989.

That amount was deposited by the tenant. When the application for stay came up for final orders, the Court directed the tenant to deposit the

balance amount, viz., Rs. 10,135 within eight weeks therefrom and observed that if there was default the stay would stand vacated automatically.

As the tenant failed to make the deposit within the time granted by this Court, the landlord filed a memo before the Revenue Court praying for

the passing of an order of eviction against the tenant. The Revenue Court issued notice to the tenant and he filed a counter stating that he had filed

an application before this Court to permit him to pay the amount and that the said application was pending. As a matter of fact, no such application

was filed by the tenant.

The tenant also filed an application before the Revenue Court for permission to pay the arrear amount as mentioned in the order of the Revenue

Court without prejudice to his contentions in the revision petition. Though the expression used in the petition was counter in the revision petition it is

obviously erroneous. Inspite of the landlord bringing to the notice of the Revenue Court that the Revenue Court could not grant further time as the

order was passed by the High Court and there was default on the part of the tenant, the Revenue Court thought fit to pass an order on 12.3.1993

directing the tenant to deposit the amount in the treasury within a period of one month therefrom and posted the matter to 30.4.1993. When the

matter was called, the tenant produced the challan evidencing his deposit of the amount in the treasury and the Revenue Court passed an order

accepting the deposit and recording that the tenant had paid the entire arrears and no further enquiry was necessary in the proceedings. He closed

the proceedings accordingly. Against the said order, the landlord has filed C.R.P. No. 2199 of 1993.

On the same date of the filing of the revision petition, the landlord filed Contempt Application No. 335 of 1993 against the Revenue Divisional

Officer and the tenant for punishing them either with fine or imprisonment for the disobedience of the orders of this Court in C.M:P. No. 8149 of

1989 in C.R.P.1646 of 1989 dated 18.8.1989. Notice was issued on 11.3.1994 in the said application. Both the respondents have filed their

counter-affidavits in that matter.

All the three matters are taken up together at the request of counsel as the questions involved are the same.

An objection is raised by learned Counsel for the landlord that the tenant is not entitled to be heard in C.R.P. No. 1646 of 1989 as he is guilty

of contempt of Court and that the contempt application should be heard first. No doubt, there is considerable force in this contention of learned

Counsel for the landlord. But having regard to the posting of all the matters together, I am of the view, it will make no difference by passing a

common order in all these matters. After hearing counsel on both sides in the three matters. Thus I permitted learned Counsel for the tenant to

argue C.R.P. No. 1646 of 1989 also and I heard him fully.

As stated already, C.R.P. No. 1646 of 1989 is against the order of the Revenue Court dated 25.5.1989 directing the tenant to deposit a sum

of Rs. 13,635 as the rent due from him for the two years 1986-87 and 1987-88. The main contention of learned Counsel for the tenant is that the

order is vitiated inasmuch as the Revenue Divisional Officer has taken into consideration the orders passed in certain proceedings which do not

relate to the lands in dispute now, but between different parties. Learned Counsel for the tenant has made a reference to the orders in P. No. 852

of 198 land 1348 of 1986, which were taken into consideration by the Revenue Court while fixing the rent payable by the tenant. The contention

of learned Counsel for the tenant is that in both these proceedings, neither he nor the landlord was a party and no reliance can be placed on the

same. There is no merit in this contention. In this case, the landlord''s definite allegation is that the tenant has agreed to pay half of the produce

every year. No doubt the tenant merely denied the said statement but he did not choose to mention in the counter-statement as to what exactly was

the agreement between the parties. The tenant did not examine himself but his son had been examined as R. W. 1. R.W. 1 admitted expressly that

half of the gross produce shall be paid to the landlord and the other half will be taken by the tenant. In fact, he has stated that a similar rent was

being paid to the prior landlord also by the tenant. Hence the Court had to proceed on the footing that the tenant was liable to pay half of the

produce. The burden was on the tenant to show what exactly was the produce in the land as he was having special knowledge of the same. He has

not chosen to furnish the relevant particulars to the court. On the other hand, he has been relying upon some earlier proceedings between him and

the landlord for the years 1978-79 and 1981-82 to 1985-86. But the earlier order was passed on consent by the landlord. Relying upon the same

order, even though there was contest, the second order was passed by the Revenue Court fixing the same rent. The Revenue Court in the present

case has rightly found that on the earlier occasion the Revenue Court was in error in passing an order merely relying upon the consent order passed

with reference to the prior period. It is rightly pointed out by the Revenue Court that the yield would have been different and the Court ought to

have considered what exactly was the yield. But the landlord did not challenge the second order passed by the Revenue Court.

Therefore, in the present proceedings, the Revenue Court considered the question as to what could have been the yield in the property in

question. Naturally it follows that the Revenue Court had to decide what was the gross produce on the land. There is a guideline in the Rules

framed under the Tamil Nadu Cultivating Tenants (Payment of Fair Rent) Rules, 1956, to determine the quantum of normal gross produce. The

Revenue Court has obviously followed that guideline. Under that Rule (Rule 10) the Court or the Tribunal shall ascertain the quantity of the

produce which would be obtained if such crop were grown in a year in which the rainfall and the seasons are of a normal character, on a land of

the same class as the land in question similarly situated and possessing similar advantage. For the purpose of such determination, the Court or the

Tribunal may take into consideration the soil classification of the land and the normal or standard outturn of paddy in the case of wet land and the

standard dry or irrigated crop in the case of dry unirrigated or irrigated land as the different classes and sort of soil as finally adopted at the last

land revenue settlement of the tract in which the land is situated. In the present case, the Revenue Court relied on the yield in the adjoining land

belonging to one Palaniappa Mudaliar of which one Rajamanickam was the tenant. R.W.I has admitted in his evidence that the land of Palaniappa

Mudaliar is situate next to the lands in question. The orders relating to that land fixing the rent payable for that land are referred to by the Revenue

Court in determining the yield in the, land in question. As pointed out already, in the absence of other convincing evidence, the Court can certainly

determine the normal produce on the basis: of the yield in an adjacent land similarly situated. Admittedly, the land of Palaniappa Mudaliar situate

next of the lands in question, and the Revenue Court has rightly taken into account the produce of that land for determining the normal gross

produce in the lands in question.

It must be pointed out that the tenant has not chosen to help the Revenue Court in any manner by producing any record or placing any

particulars with regard to the yield in the lands. It is admitted by R.W. 1 that the tenant has got his own lands in which he is cultivating land in one

acre of such lands, there are cashew trees. He has also admitted that in that land, there is very good yield.

When admittedly his own land gets very good yield. there is nothing wrong in the Revenue Court taking into consideration that aspect and coming

to the conclusion that the land in his possession as tenant would yield more than what he states in the counter-affidavit. It is only on the basis of

such evidence the Revenue Court has come to the conclusion that the lands in question would yield about 11 bags per year. Thus he has worked

out the rent for the lands in question at 6 bags and 60 kilograms at the rate of 80 kilograms per acre and for two years 13 bags and 40 kilograms.

Taking into consideration the prevalent price of cashew nut at Rs. 1,010 per bag of 80 kilograms, the Revenue Court determined the amount

payable by the tenant to the landlord at Rs. 13,635. No exception can be taken to the method adopted by the Revenue Court. No objection has

been taken to the price adopted by the Revenue Court or the cal cu-lation made by it.

Sitting in revision and exercising jurisdiction under Seel 15 of the Code of Civil Procedure, I do not find any warrant to interfere with the

orders passed by the Revenue Court. Consequently, C.R.P. No. 1646 of 1989 is dismissed with costs. Counsel''s fee Rs. 1,000.

As regards C.R.P. No. 2199 of 1993, there is no doubt whatever that the order passed by the Revenue Court is wholly unsustainable. The

necessary facts have already been stated. This Court was seized of the matter and it had given a direction to the tenant to deposit the amount

within a specific time. After committing default in complying with the direction given by the court, it is not open to the tenant to approach the

Revenue Court for extension of time. If the tenant really wanted an extension he should have approached this Court by filing an application for that

purpose. In fact, he claims falsely in the counter statement filed by him before the Revenue Court that he had approached this Court for extension

and that the application was pending. The Revenue Court had no jurisdiction to consider the request of the tenant to grant further time and to make

the deposit.

Learned Counsel for the tenant contends that under the provisions of Section 3(4)(b) of the Tamil Nadu Cultivating Tenants Protection Act,

1955, the Revenue Court has got discretion to grant time and also grant further extensions. Reliance is placed on the decision of this Court in V.

Srinivasan Vs. Padmasini Ammal, . Justice Rajagopalan has held that u/s 3(4)(b) of the said Act, the R.D.O. has jurisdiction to grant one or more

extensions of time to the tenant for payment of the arrears or rent. It is also pointed out by the learned Judge that the landlord is entitled to notice of

the application for extension and it is open to the landlord to contend that the tenant is not entitled to any extension of time, and an order extending

time on the application of the tenant without notice to the landlord is not valid. The above ruling will have no bearing on this case. It was not a case

in which the High Court had granted time and an application for extension was filed before the Revenue Court.

Learned Counsel draws my attention to the judgment of the Supreme Court in Chinnamarkathian alias Muthu Gounder and Others Vs.

Ayyavoo alias Periana Gounder and others, . Referring to the scheme of the Act, the Supreme Court said,

The scheme of the Act is that merely on determination of rent in arrears the Revenue Divisional Officer is not to conclude that there is such default

which has become irreparable and that he is under an obligation to evict the tenant. In fact, statute grants locus pententiae to the tenant by making it

obligatory upon the Revenue Divisional Officer to grant some time 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.

As analysed, 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.

That is also not a case in which the High Court granted time and the R.D.O. extended the same. Hence, the general principle set down by the

Supreme Court u/s 3(4)(b) of Tamil Nadu Act XXV of 1955 will not apply for the present case.

The R.D.O. has not considered the question whether he had jurisdiction to extend the time fixed by the High Court. He has proceeded on the

footing that there was no order of eviction as such against the tenant passed by him or the High Court and he could always grant extension of time.

In this connection it may be mentioned that learned Counsel for the landlord states that an order is said to have been passed on 12.3.1993

directing the tenant to make the deposit within a period of one month but the R.D.O. has not chosen to give a copy of the said order inspite of an

application filed by the landlord there for. Whatever that may be, there is no difficulty in holding that the R.D.O. had no jurisdiction whatever to

grant extension of time when the time had been fixed by the High Court. He should have directed the tenant to approach the High Court and get

further orders, if he did not want to pass an order of eviction on the ground of default on the part of the tenant.

Consequently, the order dated 30.4.1993 passed by the R.D.O. is set aside and the tenant is clearly in default by not making the deposit within

the time granted by this Court, he is liable to be evicted. Consequently, there will be an order of eviction in favour of landlord and against the

tenant. The tenant shall deliver possession of the lands to the landlord on or before 31st July, 1994. C.R.P. No. 2199 of 1993 is allowed. No

costs. The landlord is entitled to withdraw the amount deposited by the tenant in the treasury on 2.4.1993 as stated in the order of the Revenue

Court dated 30.4.1993 as well as the sum of Rs. 3,5OO deposited earlier pursuant to the order of this Court in C.M.P. No. 8149of 1989 dated

13.7.1989. The present Revenue Divisional Officer shall issue a cheque in favour of the landlord, on production of a steno copy of this order.

In the contempt application, both the respondents have filed counter-affidavits. The tenant has at the outset tendered an unconditional apology

for the mistake committed by him and proceeded to state that he was unable to comply with the order of this Court due to poverty. He has also

stated that he is aged 90 years and living alone with his wife and without any support from anyone else. He has stated that the bonafide thought that

he could approach the Revenue Court for extension of time without knowing that it was a mistake. He has also stated in the counter-affidavit that

the agreed lease amount is only 1 3/4 bags per year. This again is a wrong statement to put it mildly. Learned Counsel for the tenant explains that it

was his wrong understanding of the instructions given by the tenant that he inserted that sentence in the counter-affidavit when it was prepared. This

overlooks the admission made by R.W.I in the evidence to which I have already referred, that the agreed rent was half of the produce.

The R.D.O. has filed a lengthy counter stating the law on the subject. A perusal of the counter-affidavit shows that the filing of such a counter

would itself amount to contempt of Court. The Government Advocate says that he prepared the counter-affidavit and apologizes to the Court for

having drafted it on such lines.

I have no doubt that the respondents are guilty of contempt inasmuch as the tenant has taken a vexatious proceeding before the Revenue Court

for extension of time inspite of an order of this Court fixing a particular time-limit for making a deposit and the Revenue Court has granted the

prayer of the tenant for extension. It is pointed out by the Supreme Court in Advocate-general, State of Bihar Vs. Madhya Pradesh Khair

Industries and Another, that institution of vexatious proceedings in Courts would also amount to contempt of court. 22. As I had already dispensed

with the appearance of the respondents in the contempt application they are not present to-day in Court. Before passing any sentence in this

matter, it is necessary that the two respondents should be present in Court and they should be given an opportunity to make their representation

with regard to the sentence to be passed. In the circumstances, I direct both respondents to be present in this Court on 22.7.1954. The contempt

application shall be posted on that day. The contempt application having been posted this day for further orders, the Court delivered the following

Judgment:

As directed by my order dated 15th July, 1994, the respondents in the contempt application are present in Court. The Revenue Divisional Officer,

who is the 1 t respondent herein, expressed unconditional apology orally in open court. The 2nd respondent has also expressed an oral

unconditional apology. The 2nd respondent is accompanied by his son, by name Rajendran. The 2nd respondent herein has undertaken to deliver

possession of the property, which is the subject matter in C.R.P. Nos. 1646 of 1989 and 2199 of 1993, to the landlord by name Mathukumara

Mudaliar on or before 31.7.1994 as directed in my order dated 15.7.1994. The undertaking is recorded. In view of the above facts, I do not think

it necessary to pass any sentence of punishment as against the respondents in the contempt application. They are discharged.