Mariyayee Ammal vs Vadamalai and Another

Thangamani, J.—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. 133 of 1992 u/s 5(2) or u/s 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 38of 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 can not 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.

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 arid 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.

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 u/s 4(1) of Act 38 of 1990. Ex. P-1 is the receipt received by the revision petitioner on 22.3.1991 acknowledging the

payment of lease amount as calculated u/s 5(1) of the Act. Section 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, 1989and 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

11 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-section (2), the option given under Sub-section (1) shall be final. This Act was

published on 10.10.1990and the option should have been exercised on or before 10.12.1990. But an amendment was passed in Act 15 of 1991,

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 10.2.1991 for exercising their option. So according to the revision petitioner, the respondents should have exercised their option

before 10.2.1991. 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, lam unable to make out what exactly the tenants want to convey except that they

pray for dismissal of the suit.

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.

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. u/s 5(1) of Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act 38ofl990,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-section (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. 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 u/s 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 of 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. 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 u/s 5(4) of Act 38 of 1990, is unsustainable.

In the result, the civil revision petition is allowed and the order of the court below in I.A. No. 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.