Sivaprakasa Krishnaswami Gurukkal vs Kandappa Goundar

Sadasivam, J.

(1) This civil revision petition has come before us as Alagiriswami J., who hard it in the first instance, found some difficulty in agreeing with the

decision of Kailasam J., in Nallathambi v. Nagaratnasami Devastanam, ILR (1965) 2 Mad 225 particularly in view of the decision of the Privy

Council in Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 . The civil revision petition raises an important question, whether a revenue

Court has jurisdiction in an application for eviction by a landlord to direct a cultivation tenant u/S. 3(4)(b) of the Madras Cultivating Tenants

Protection Act 1955, to deposit the entire arrears of rent, irrespective of the fact that part of it may be time-barred and cannot be recovered in a

suit for arrears of rent in a civil Court.

(2) In the decision in ILR (1965) 2 Mad 225, Kailasam J. has referred to the several clauses of Section 3 of the Madras Cultivating Tenants

Protection Act 1955 hereinafter referred to as the Act, and found that in the absence of any provision restricting the arrears of rent of three years

prior to the date of the application, there is no justification for holding that the arrears of rent which the revenue Court could direct the tenant to pay

or deposit shall be confined to the said period.

(3) The scheme of Section 3 of the Act, as revealed from the several clauses found therein, also furnishes some guidance to answer the question

involved in this civil revision petition. Sub-section (1) of Section 3 of the Act provides that ""no cultivating tenant shall be evicted from his holding or

any part thereof by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise"", except in accordance

with the provisions of the succeeding sub-sections. Sub-section (2) of the Section 3 of the Act provides that subject to the next succeeding sub-

section, namely sub-section (3), cultivating tenants falling under that sub-section cannot claim the exemption from eviction conferred on cultivating

tenants u/s 3(1) of the Act. One of such cultivating tenants is one who defaults to pay rent prior to, or after the commencement of the Act.

In the areas where the Tanjore Tenants and Pannaiyal Protection Act 1952 was in force prior to the coming into force of the Madras Cultivating

Tenants Protection (Amendment) Act 1956, a tenant if in arrears at the commencement of the Act, should pay such rent within six weeks after

such commencement and in respect of subsequent rent, he should pay rent within a month after such rent becomes due. Cultivating tenants in other

areas of the State of Madras, such as the one in the present case, should pay the arrears of rent accrued subsequent to 31-3-1954 within a month

after the commencement of the Act and the rent payable after the commencement of the Act within a month after such rent becomes due.

Sub-section (3) of Section 3 of the Act enables a cultivating tenant to make a deposit of the rent accrued due subsequent to 31st March 1954,

within a month after the commencement of the Act and the rent accrued due after the commencement of the Act within a month after the date on

which the rent accrued due. This is in accordance with the terms of the earlier clauses. Thus having regard to sub-sections (2) and (3) of Section 3

of the Act, a cultivating tenant shall be liable to be evicted if he failed to pay the rent accrued due after the commencement of the Act within a

month after the date on which the rend accrued due.

(4) Logically sub-section (4) of Section 3 provides a remedy for the landlord to file an application for eviction in the Revenue Court against such

cultivating tenant who defaults to pay rent. Clause (b) of sub-section (4) of Section 3 of the Act enables the Revenue Divisional Officer in the

exercise of his judicial discretion to allow a cultivating tenant such time as he considers just and reasonable having regard to the relative

circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under the Act inclusive of such costs as he may

direct, and if the cultivating tenant deposits the same as directed he shall be deemed to have paid the rend under sub-section (3)(b) of Section 3 of

the Act. Thus sub-section (4)(b) of Sec. 3 of the Act gives jurisdiction to the Revenue Divisional Officer to afford relief to a cultivating tenant, who

not only failed to pay rent in time, but also failed to make the deposit as provided under sub-sec. (3) of Section 3 of the Act and thereby precluded

himself from claiming exemption from eviction under sub-section (1) of Section 3 of the Act. This is analogous to the right of civil Courts to relieve

a tenant against forfeiture clauses of lease deeds, whether u/s 114 of the Transfer of Property Act, or under the general law.

(5) It is clear from paragraph 2068 at page 950 of Woodfall on ''Landlord and Tenant'', 26th Edn. Volume 1, that in the case of the breach of the

covenant to pay rent, equitable relief was granted from early times, the statute 4 Geo 2 C. 28 only regulating the mode of granting the relief and not

originating it. The Supreme Court of Judicature (Consolidation) Act 1925, Section 46 (replacing the Common Law Procedure Act 1860 Section

1) allows a Court or a Judge to give relief in a summary manner and subject to the same terms and conditions in all respects as to payment of rent,

costs and otherwise as could formerly have been enforced by the Court of Chancery. (See pages 970 of the same book Para 2014).

It is stated in paragraph 1409 at page 681 of Halsbury''s Laws of England, 3rd Edn. Volume 23, that ""if the landlord has brought an action to

recover possession, the tenant or his assigns may, at any time before trial, pay or tender to the landlord, or pay into Court, all the rent in arrears,

together with costs; thereupon all further proceedings are stayed, and the tenant or his assigns hold the demised lands under the lease, without any

new lease"". It appears from the foot-note in respect of the above statement of law that in order that an assignee may obtain relief against an order

in ejectment, it is necessary that he should pay or tender not only the amount due from him, but also the amount of rent due from the original lessee,

his assignor, including arrears outside the period of limitation. Barrant v. Richardson and Cresswell, 1930 1 KB 686, has been cited as the

authority for the position.

(6) In the Dhurrumtolla Properties Ltd. Vs. Dhunbai Peroshaw Sorabjee, , it has been held that Section 114 of the Transfer of Property Act, is

based on principles laid down by the Chancery Courts in England and that the only difference is that, under the English law, a tenant is allowed the

same right to relief after a judgment for recovery of land on the ground of forfeiture for non-payment of rent, as if the judgment had been given after

trial, while under the Indian law relief from forfeiture cannot be claimed after the order for ejectment has been made. Section 114 of the Transfer of

Property Act provides for relief against forfeiture for non-payment of rent. But such relief was given in India even before the Transfer of Property

Act. It is given in respect of agricultural holdings to which the Transfer of Property Act is not applicable. It is clear from page 754 of Mullah''s

Transfer of Property Act (5th Edn.) that the lessee is put on terms to make full compensation to the lessor, i.e., he must pay all rent in arrears with

interest and full costs of the lessor''s suit. It is pointed out by the learned author that the Madras High Court has held that the lessee must pay

arrears of rent even though they are time-barred.

In Adyapadi Vasudeva Udpa and Others Vs. Krishna Udpa and Others, , it has been held that a tenant can be relieved against forfeiture of lease

incurred by non-payment of rent only on payment of all arrears of rent, including such as may be barred by limitation. In Gurpur Vamana Pai Vs.

Venkatu (Venkatesh) Naika, . Venkataramana Rao J., has held that the words rent in appears'' in Section 114 Transfer of Property Act are wide

enough to include even the rent which the lessor may be unable to recover by reason of the bar of limitation. He has also pointed out that before

forfeiture can be relieved against ''rent in arrears'' must be paid.

In Vellathi v. Thayammal, AIR 1958 Mad 232, it has been held by a Bench of this Court that the Court has power to give relief against forfeiture

independently of the provisions of Section 114 of the Transfer of Property Act and that therefore, though an agricultural lease does not come

within the purview of the section, a Court in the exercise of its powers, if justice, equity and good conscience, requires it, will relieve the tenant

against forfeiture for non-payment of rent on such conditions as may appear equitable on the facts of each particular case. In that particular case,

the Court granted relief against forfeiture by directing the tenant to pay time-barred arrears of rent, though the same were not claimed in the suit. It

was held that such direction was fully warranted by considerations of justice, equity and good conscience under which the relief against forfeiture

was granted. In Narsingh Das and Another Vs. Permeshwari Das, , a Bench of the Allahabad High Court referred to the principles of the above

decisions in support of the decision in that case.

(7) Thus, in exercising the discretion u/s 3(4)(b) of the Act, the Revenue Court has jurisdiction to direct a cultivating tenant to deposit the entire

arrears of rent irrespective of the fact that part of it is time-barred, in order to give relief to the cultivating tenant from being evicted from his

holding.

(8) The Privy Council decision in Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 relied on by Alagiriswami J., in his order of reference

is clearly distinguishable and it can hardly furnish any guidance to answer the question that arises for consideration in this civil revision petition. It

was held in that decision that the liquidator of a company could not by making an application u/s 186 of the Companies Act get over the period of

limitation, which would apply if he were to bring a regular suit in the company''s name to recover moneys from a contributory. The principle of the

decision is that a time-barred debt could not be enforced by a summary order u/s 186 of the Companies Act of 1913, as the section did not create

new liabilities or confer new rights, but merely created a summary procedure for enforcing existing liabilities.

But it should be noted an application by a landlord u/s 3(4)(a) of the Act is an application for eviction of the tenant in a revenue Court, which is

totally different from a suit for recovery of rent in a civil Court. As pointed out in G. Venkatachala Odayar Vs. Ramachandra Odayar and Another,

, it is obvious that the question of arrears of rent of a cultivating tenant and the right of the landlord to recover such arrears from the tenant are not

matters which the Revenue Divisional Officer is empowered under the Act to determine, but are matters which may arise incidentally in determining

the question whether the cultivating tenant is liable to be evicted or not.

(9) The learned Advocate for the respondent relied on Article 137 of the Limitation Act of 1963 as applying to an application of the landlord u/s

3(4)(a) of the Act and urged that an application for eviction based on default in payment of rent prior to three years would be barred by virtue of

the Article, and hence such arrears of rent could not be ordered to be deposited by the revenue Court. There is a fallacy in this contention. The

cause of action to apply for eviction is the default in payment of rent upto the date of the application and it is really immaterial whether such arrears

is for three years, or less, or more.

In Woodfall on ""Landlord and Tenant"" 26th Edn. Volume 1, it is stated at page 368 in paragraph 881, on the authority of (1930) 1 KB 686, that

where a lessor had under the lease a right of re-entry when the rent was in arrear for 21 days and the assignee of the lease was in possession of the

land, no rent having been paid for over 12 years, it was held that the lessor''s claim to possession was not barred as not having been made within

12 years next after the time at which the right to make such re-entry accrued afresh in respect of each subsequent quarter day whenever any part

of the rent reserved was in arrear for 21 days, and he was therefore entitled to rely on the last non-payment of rent before writ issued or any

previous non-payment of rent upto 12 years before writ. Hence the landlord may waive and not rely on earlier defaults in payment of rent during

the period prior to 3 years for claiming eviction. By virtue of the Limitation Act, the right to demand rent prior to 3 years might get barred. But

even such barred arrears of rent could form a valid consideration for a promissory note or other fresh contract in writing u/s 25 of the Contract

Act.

Kailasam J. in ILR (1965) 2 Mad 225, has held that there is no period of limitation for the landlord to file a petition for eviction u/s 3(4)(a) of the

Act as the Limitation Act of 1908 does not provide for any period to an application for eviction by the landlord under the Act. Even the present

petition by the landlord was filed in the Revenue Court when the Limitation Act of 1908 was in force. But in the light of our discussion, it would not

make any difference even if Article 137 of the Limitation Act of 1963 is assumed to apply to an application for eviction by a landlord against a

cultivating tenant u/s 3(4)(a) of the Act.

(10) In the result, we are of the opinion that the Revenue Court has jurisdiction to direct the cultivating tenant to pay the entire arrears of rent in

order to avoid being evicted from his holding. But, as already pointed out, Cl. (b) of sub-section (4) of Section 3 of the Act enables the Revenue

Divisional Officer in the exercise of his judicial discretion to allow a cultivating tenant such time as he considers just and reasonable having regard to

the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under the Act inclusive of such costs

as he may direct, and if the cultivating tenant deposits the same as directed, he shall be deemed to have paid the rend under sub-section (3)(b) of

Section 3 of the Act. The exercise of judicial discretion is only as regards allowing the cultivating tenant reasonable time to make the deposit of

arrears of rent and not as regards the extent or quantum of arrears.

In Adyapadi Vasudeva Udpa and Others Vs. Krishna Udpa and Others, , it is pointed out that the ""tenant should not be given relief against

forfeiture until the full arrears are paid, the full arrears being probably limited to 12 years but having regard to the provisions of the Act, arrears of

rent as subsequent to 31st March 1954, alone could be directed to be deposited. it is true that a direction by the Revenue Court to a cultivating

tenant to pay arrears of rent for a number of years beyond the period of limitation would impose a heavy burden on him. But the answer to this

contention is that such a tenant who has defaulted to pay rent for a long period is not really entitled to ask the Revenue Court to exercise its

discretion of not evicting him from his holding at the instance of the landlord. If in spite of it the Revenue Court thinks it fit to exercise its discretion

even in the case of such a tenant, it is but reasonable that he should be asked to pay the entire arrears of rent which he would have to pay to avoid

eviction on the ground non-payment of rent.

(11) The order of the Revenue Division Officer is therefore incorrect and it is set aside. The respondent is directed to pay the entire arrears of rent

excluding the amount already deposited by him within one month from the date of receipt of this order in the lower Court, and on his failure to do

so, he shall be evicted. The petitioner is entitled to costs of this petition.

Petition allowed.