Kandaswamy Gounder vs Vannimuthu Gounder and Another

P.R. Gokulakrishnan, J.—The petitioner herein is a cultivating tenant. The respondents purchased the land and filed a petition for eviction on

the ground of waste. Notice was sent through post and it came back with an endorsement ""refused"". The case was called on 8th February, 1972

and then it was adjourned to 22nd February, 1972. On 22nd February, 1972 the respondent in the eviction petition was called absent and he was

set ex parte. An order of eviction was passed evicting the respondent forthwith. The respondent in this petition filed E.P. No. 6 of 1972 for

execution. On 2nd August, 1972 the Tahsildar came and took forcible possession from the petitioner in this civil revision petition. Within two days

thereafter the petitioner filed O.P. No. 20 of 1972 to set aside the ex parte order and also another petition for setting aside the order of eviction.

On 14th August, 1972 the Authorised Officer (Land Reforms), Coimbatore, dismissed these petitions on the ground that delivery has already been

taken and, as such, the petitions have become infructuous. Against the said order C.R.P. No. 2223 of 1972 was filed by the present petitioner and

this High Court by its judgment, dated 11th July, 1973 held that the order passed by the Authorised Officer (Land Reforms) Coimbatore is wrong

and, as such, the High Court sent back the matter to the Authorised Officer directing him to decide the matter on merits. After it was sent back the

Authorised Officer, holding that the service is proper and that the petitioner ceased to have any interest in the suit land, dismissed the original

petition. Aggrieved by the said decision the tenant has filed the above civil revision petition.

Mr. S. Ramalingam, the learned Counsel appearing for the petitioner pointed out that the service deemed to have been effected on the petitioner

herein is not sufficient and, as such, the order of eviction passed ex parte cannot be sustained. It is further submitted that the petitioner came to

know of the order of eviction passed only on 2nd August, 1972 when forcible eviction was made by the Tahsildar and that the petitioner within

two days filed the present original petition to set aside the ex parte order of eviction passed against him. The learned Counsel pointed out that rule

8 of the rules framed under the Act gives power to the Authorised Officer (Land Reforms) to apply the provisions of the CPC as far as possible in

respect of service of summons on the parties concerned. If that be so, the learned Counsel submits that the Court below has not followed the

procedure laid down in Order 5 of the CPC in respect of service of summons on the respondent in the main eviction petition. Mr. Nainar

Sundaram, the learned Counsel appearing for the landlords - respondents herein submitted that the service effected on the respondent in the main

eviction petition by post wherein the postman has made an endorsement to the effect that the petitioner in this revision petition has refused to

receive the summons, is sufficient service and, as such, the order of eviction passed against the petitioner herein is valid. The learned Counsel also

submitted that the provisions of the CPC cannot be applied in a strict form to the proceedings before the Rent Control Court. The wording is ""as

far as possible"" in the Rule and, as such, the service must be deemed to be a proper service in this case. The learned Counsel also stressed the

point that the petitioner has ceased to have interest in the suit land, in as much as he has subleased the property to his brother Karuppuswamy and

the said Karuppuswamy has also filed an independent suit to have possession of the suit land from the landlords as a cultivating tenant.

I have been taken through the pleadings in this case and also through the relevant provisions in the Tamil Nadu Cultivating Tenants'' Protection

Act, 1955, and the Rules made thereunder.

In Muthiah Nattar Vs. N.S. Ibrahim Rowther alias N.S. Mohammed Ibrahim and Another, Ramaprasada Rao, J., has stated as follows:

It is common ground that unless there is anything in the Madras Cultivating Tenants Protection Act or the rules prohibiting the application of any

provisions of the Civil Procedure Code, the Code is applicable to the proceedings in the revenue Court. No doubt, the provisions of the CPC

ought not to be strictly iron-jacketed and rendered inelastic.

Thus, it is clear that the provisions of the CPC are in all force applicable to the service of summons in respect of parties before the revenue Court.

Order 5, rule 9 was amended on 27th March, 1963. Before amendment Order 5, Rule 9(3) was more or less similar to Order 5, Rule 9(1) which,

is in force after amendment, except for the sentence ""the acknowledgment purported to be signed by the defendant shall be deemed to be sufficient

proof of service of such summons."" In view of this provision before amendment of 1963, a Bench of our High Court refused to accept the service

deemed to have been effected when especially there is an endorsement ""refused "" by the postman.

As the amendment stands to-day, it is clear that the service of summons as per Order 5, rule 9(1) though served by registered post with prepaid

acknowledgment, the summons has to be sent, again if the party does not appear on the date fixed in the summons. As far as the present case is

concerned, there is no question of any service, as such, except the endorsement made by the postman stating that the party has refused to receive

the summons. Hence, it is clear that the service alleged to have been effected under Order 5, rule 9(1) cannot be deemed to be a proper service

inasmuch as the petitioner ought to have followed the procedure mentioned in Order 5, rule 9(2) also for the purpose of deciding that the service

was complete. In the absence of that, it can easily be held that the service is defective and, as such, the ex parte order of eviction passed cannot be

sustained.

As regards the contention that the petitioner has ceased to be the cultivating tenant to have the benefits of the Act, Mr. S. Ramalingam, the

learned Counsel pointed out that the suit filed by Karuppuswamy, the brother of the petitioner herein, alleging that he is a sub-tenant, has been

dismissed by the Court below and there is no appeal against the same. Even apart from that the learned Counsel submits that P.W. 1 in O.P. No.

20 of 1972 has specifically denied the sublease to his younger brother, Karuppuswamy. The definite case of the petitioner herein is that he has not

subleased the property. Even apart from this, the main petition was filed by the landlords for the eviction of the petitioner on the ground of waste.

Hence, it cannot be said that the petitioner herein has lost his interest simply because there is an allegation to the effect that he has sub-leased the

property to his brother Karuppuswamy. Hence, I find that the petitioner is entitled to maintain the petition for setting aside the ex parte order of

eviction passed against him.

It is unnecessary for me to deal with the case-law cited by the respective counsel in this petition, since it is clear from the facts of the case read

with the provisions of the CPC that the summons served upon the petitioner is defective and the ex parte order was passed against the petitioner

herein without following the procedure laid down in the CPC for service of summons on the respondent in the petition for eviction. Taking all these

aspects into consideration. I hold that the Authorised Officer (Land Revenue) has miserably failed to exercise his jurisdiction vested in him to give a

finding.

In these circumstances, the Civil Revision Petition is allowed. The result is the ex parte order of eviction passed on 22nd February, 1972 is set

aside.

Since the ex parte order of eviction has been set aside, it is but proper that the petitioner must be put into possession of the land from which he

has been evicted forcibly through the process of Court. This power is given to the High Court u/s 6-BB of the Tamil Nadu Cultivating Tenants

Protection Act. Mr. Nainar Sundaram states that his clients have cultivated the land and there may be some standing crops on the suit land.

The Authorised Officer is directed to put the petitioner in possession of the suit land after allowing the respondents to harvest the crops, if any,

standing on the suit land. There will be no order as to costs. The Authorised Officer is also directed to dispose of the main eviction petition within a

month from the date of the receipt of this order by him.