Manicka Gramany and Another vs Ramachandra Aiyar

H.H. Shephard, C.J.—The question we have to decide is whether a tenant, against whom a judgment has been properly passed by the

Collector u/s 10 of the Rent Recovery Act, can in a separate suit in a Civil Court call in question the order of ejectment which under the same

Section the Collector has passed on proof of the tenant''s failure to obey the judgment ?

In the case Ragava v. Rajagopal, reported in I.L.R., 9 M it was decided by a Divisional Bench that such a suit would not lie. ""Doubt has been

thrown on that decision in recent cases, and we have accordingly to consider whether the decision was right. Section 10 of the Rent Recovery Act

gives the Collector jurisdiction to decide with regard to the propriety of any puttah which the tenant to whom it has been tendered has refused to

accept. The Collector has to say whether the puttah tendered was a proper one and if he holds that it was not, he has to decide in what respects it

should be modified. By way of giving effect to the judgment of the Collector the Section further empowers him on proof of default by the tenant to

pass an order for ejecting him. It has been held with regard to this Section that the jurisdiction exercised by the Collector under it can likewise be

exercised by a Civil Court, except that it is not competent to the latter to amend the puttah tendered and direct the acceptance of the puttah so

amended (Ramayyar v. Vedachalla, I.L.R., 14 M., 441. It has also been held that the judgment given by the Collector under the Section with

reference to the puttah of one fasli does not conclude the parties when in a Civil Court a dispute arises between them as to the puttah for another

fasli (Ramayyar v. Tirtasami, I.L.R., 7 M., 61). The contention of the plaintiff in the present case is not supported by either of these decisions,

because here what the plaintiff desires is to undo the act which an official, properly empowered in that behalf, has caused to be done to his

prejudice.

The Legislature having authorised the Collector to give a judgment and to give effect to that judgment in a certain way, we are asked to say that

a Civil Court may set aside the Collector''s order in execution and deprive the landlord of the practical result of the judgment in his favour. This

appears to me a strange proposition. It is not suggested that the judgment itself can, so far as the particular fasli is concerned, be questioned in the

suit ""which, if no summary suit had been brought, might have been instituted in a Civil Court. Against the judgment of the Collector, there is clearly

a right of appeal to the District Court u/s 69 of the Act. But it is argued that, as no such right of appeal is given against the Collector''s order of

ejectment, it must be intended that this order should be examinable in a Civil Court. It is by no means clear to my mind that the judgment

mentioned in Section 69 does not include the order mentioned in Section 10. It would seem from other Sections of the Act that the word is not

used in the limited sense which in recent times it has come to bear. But however this may be, I think we should be defeating the object of the

Legislature if we held that the tenant affected by an order passed u/s 10 could obtain the reversal of that order in a Civil Court. If that had been the

intention of the Legislature, one would have expected special provision to be made for it as there is in Section 32 and 44 of the Act. The language

used in Section 76 is somewhat ambiguous; but I am strongly inclined to think that Section indicates the intention of the Legislature to make the

judgment and order of the Collector final except in the cases specially provided for.

For these reasons, I think the decision in Ragava v. Rajagopal, I.L.R., 9 M ., ought to be followed. In my opinion, it is not inconsistent with

Ramayyar v. Tirtasami, I.L.R., 7 M., 61.

The facts in the more recent case Gangaraju v. Kondireddisami, I.L.R., 17 M., 106 are materially different from those of the present case, for

the plaintiff claimed there to be owner and did not admit that he had ever held as tenant of the defendant by whom he had been ejected. There

was, therefore, a question of title raised in the Civil suit, whereas here there is no such question. For these reasons, I answer the question in the

negative.

Davies, J.

The question referred to us is whether a plaintiff who has been ejected in pursuance of an order passed u/s 10 of the Rent Recovery Act--

Madras Act, VIII of 1865--can maintain a suit to question the legality of that order. I think the ruling in Gangaraju v. Kondereddiswami I.L.R., 17

M., 106 that such a suit does lie is correct and should be followed. A suit for ejectment is one on title, and title can only be tried incidentally by the

Revenue Courts as held in Ramayyar v. Tirtasami, at I.L.R., 7, M. 61 and approved of in Garujaraju v. Kondireddiswami. It is pointed out by the

learned Judges who tried the latter case that the above point was not observed by the Judges who tried Ragava v. Rajagopal (Kummarasamy v.

Nallakunnu I.L.R., 9, M., 39). Moreover, the fact is that, according to a uniform course of decisions, no appeal lies against the summary order of

ejectment passed u/s 10. Appeals lie only when there has been an ejectment by the Collector in a summary suit under the Act (see 5, M.H.C.R.

293). It would seem to follow that a suit being the only remedy a suit should be allowed. It is contended that Section 76 of the Act bars a suit; but

the High Court has never yet read it in that light, or it could not have allowed the many suits that it has allowed. The Section reads that in

proceedings under this Act no judgment of a Collector, and no order passed by him after decree and relating to execution thereof, shall be open to

revision otherwise than by appeal to the Zillah Court, except as allowed in Section 58. From the reference to Section 58 which provides for

revision of certain of his own orders by the Collectors, it seems to me clear that the prohibition against revision in the Section applies only to

revision by the Collector himself. If it had been intended that no suit should lie against any judgment or order of the Collector express words to that

effect would have been enacted.

Another reason that I would give for holding that a suit is maintainable is that an order for ejectment passed u/s 10 is, in my opinion, an order

passed by the Collector not in his judicial but in his executive or ministerial capacity as the instrument or agent of the landholder. It is just in this

way that the Collector acts in the other case where he issues an order of ejectment u/s 41, and also in several other instances mentioned in the Act.

Section 12 confirms this view, as it treats the ejectment u/s 10 as well as that u/s 42 as an ejectment made by the landholder. But it is not worth

while to discuss the question further as the present Act is happily moribund and our ruling in the present case will not be required for future

guidance. So far as the present case is concerned, I would answer the question referred to us in the affirmative.

Moore, J.

The question referred to the Full Bench for decision is the following:-- ""Whether the plaintiff who has been ejected in pursuance of an order

passed u/s 10 (Act VIII of 1865, Madras) can maintain a suit to question the legality of that order""?

The Madras cases referred to at the hearing are the following: -- 5, M.H.C.R. 293; Ramayyar v. Tirtasami, I.L.R., 7, M. 61; Ragava v.

Rajagopal, Ib. 9, M. 39; Ramayyar v. Vedachalla, Ib. 14; M, 441; Gangaragu v. Kondireddiswami, Ib. 17, M. 106; and Rangayya Appa Rau v.

Ratnam, Ib. 20, M, 392 . It does not appear to me to be necessary to refer to the cases from other Presidencies, to which allusion has been made,

as it cannot be held that they have any bearing on the question under consideration.

The decision in 5. M.H.C.R. 293 throws no light on the present case as it relates to certain proceedings taken by the Civil and Revenue Courts

in connection with warrants issued u/s 41 of Act VIII of 1865, Madras, The point decided in ILR 7, M. 61 was that a decision in a Revenue Court

directing a tenant to accept a puttah for one fasli did not bar suit before a Civil Court in a subsequent year to determine if the rates mentioned in the

puttah were proper. This ruling does not affect the present case. The question at issue in ILR 14, M. 441 was as to whether a Civil Court could

entertain a suit to enforce acceptance of puttah and execution, of muchilika. With this question we are not now concerned. What was held in I.

L.R. 17, M. 106 was to the effect that a decision of a Revenue Court that a party was bound to accept a puttah for certain land was no bar to a

suit subsequently brought by him in a Civil Court to declare that he was the actual owner of the land. This is not the question now at issue. In I.L.

R. 20, M. 392 it appeared that in a suit before a Revenue Court it was decided that a puttah was a proper one and it was held that this decision

did not render the question, of the propriety of the puttah res judicata in a subsequent suit in a Civil Court. With this question we are not now

concerned.

ILR 9, M. 39 remains for consideration. There, the High Court decided that a Revenue Court having ordered a tenant to be ejected u/s 10 of

Act VIII of 1865, on the ground that he had refused to accept a puttah, as directed by the Court, a suit would not lie in a Civil Court to set aside

the order of the Revenue Court. This decision has never been overruled. ILR 17, M. 106 which the District Munsif was of opinion overruled ILR

9, M. 39 decides, as has already been pointed out, a completely different question. It is clear that if the ruling in 9, M. is to be followed, the answer

to the question referred must be in the negative, allthough it should be pointed out that in that decision Mr. Justice Parker observes that it may be

that a suit would lie to set aside an ejectment irregularly obtained and that in the present case the finding of the District Judge is that the proceedings

in ejectment were most irregular.

I am of opinion that the question referred must be answered in the negative, but for reasons different from those given in I.L.R., 9, M. 89 . The

order now under consideration is an order of ejectment issued by a Revenue officer under the last clause of Section 10 in execution of the decree

in a judgment passed by him. Section 76 of the Act clearly provides that no order passed by a Collector after decree and relating to execution

thereof shall be open to revision otherwise than by appeal to the Zillah (District) Court, except in a case which does not now arise. A good deal

has been said at the hearing as to the meaning of the word ""revision"" in this Section. It appears to me that this word is here used in the widest

possible sense and that the meaning of this sentence is that no order of a Collector in execution was to be set aside or interfered with in any way

except by an appeal to the District Judge. There do not appear to me to be any grounds for supposing that by the word ""revision"" here the

Legislature meant ""revision"" as provided for in Chapter XLVI of Civil Procedure Code.

It has been stated here at the hearing of this reference that it has always been held that there is no appeal from an order passed under the last

clause of Section 10. It is, however, admitted that there is no reported decision of the High Court to that effect. It is, in my opinion, clear that the

Legislature intended that there should be such an appeal. I cannot possibly hold that the meaning of Section 76 is that an order of a Collector

passed in execution of a decree of his Court cannot be set aside except by an appeal to the District Judge, but that no such appeal is to be

entertained. No reference to this Section is made by the Judges in ILR 9, M. 39.

The view, therefore, that I take is that an order of Collector ejecting a tenant u/s 10 is open to appeal to the District Judge, but that in view of

the provisions of Section 76 of the Act it cannot be set aside otherwise, and I would, accordingly, answer this reference in the negative.

[The second appeal and the memoranda of objections were dismissed with costs.]