V. Periakaruppan Ambalam vs K. Sivashankaran (died) and Others

M. Venugopal, J.—The Revision Petitioner/Respondent/Defendant has filed the present Civil Revision Petition as against the order dated

09.09.2002 in E.A. No. 102 of 2002 in E.P. No. 62 of 1999, in O.S. No. 18 of 1997 passed by the learned District Munsif, Madurai Taluk,

Madurai.

The Executing Court, while passing orders in E.A. No. 102 of 2002 in O.P. No. 62 of 1999 in O.S. No. 18 of 1997 on 09.09.2002 as among

other things observed that ""Heard the Petitioner. Respondent called absent. No representation. The Petitioner has already sought eviction of the

Respondent on the basis of the order passed in C.R.P. No. 2706 of 2000 by the Honorable High Court Chennai, etc.,"" and resultantly ordered

delivery of possession to the Respondent/Plaintiff/Petitioner (later deceased) by 03.10.2002.

Being aggrieved against the order dated 09.09.2002 passed in E.A. No. 102 of 2002 in E.P. No. 62 of 1999 in O.S. No. 18 of 1997 by the

Executing Court, the Revision Petitioner/Respondent/Defendant has preferred the present Civil Revision Petition.

According to the learned Counsel for the Petitioner/Respondent/Defendant, the impugned order of the Executing Court in E.A. No. 102 of

2002 in E.P. No. 62 of 1999 in O.S. No. 18 of 1997 dated 09.09.2002 is contrary to law and the same is an erroneous one.

It is the further contention of the learned Counsel for the Petitioner/Respondent/Defendant that the Executing Court has erroneously construed

the order dated 21.12.2001 passed for fasli year 1406 for the second crop and for the payment of lease paddy in kind for subsequent faslis and

there cannot be any delivery of possession as there is no decree at all in favour of the Respondent for possession.

Advancing his arguments, it is a contention of the Learned Counsel for the revision Petitioner/Defendant that when the revision Petitioner being a

statutory tenant entitled to protection as per Tamil Nadu Cultivating Tenants Protection Act in and by which no Cultivating Tenant shall be evicted

from his holding or any part thereof by or at the instance of his landlord and he cannot be evicted except in accordance with the provision

contained under the said Act.

Further, the Learned Counsel for the Petitioner/Defendant submits that the order passed in C.R.P. No. 2706 of 2000 speaks of to the effect

that it is open to the Respondent to seek for possession but that order does not declare the entitlement of the Respondent to take possession of

the suit property from the revision Petitioner in the present proceedings which has nothing to do with the grant of possession, hence there cannot be

any order of delivery in favour of the Respondent.

Also, it is the contention of the learned Counsel for the Petitioner that the Executing Court having dismissed the E.P. No. 162 of 1999 as an in

fructuous one, it cannot direct the delivery of possession in E.A. No. 102 of 2002.

The pith and substance of the submission of the learned Counsel for the Petitioner/Defendant is that an Executing Court has no jurisdiction to

pass an order against a cultivating tenant who is entitled to the protection as per Section 3(4) of the said Act and hence ought to have dismissed the

application.

In short, the learned Counsel for the Petitioner/Defendant contends that the Executing Court has not looked into the material factual and legal

aspects of the matter in a proper and real perspective, which has resulted in serious miscarriage of justice.

Per contra, it is the contention of the learned Counsel for the Respondents (Legal Representatives of the deceased Plaintiff) that their father

during his life time has filed a suit in O.S. No. 18 of 1997 against the revision Petitioner/Defendant on the file of the District Munsif Court, Madurai

Taluk, Madurai. On 12.11.1997, a decree has been passed in the said suit that the revision Petitioner/Defendant has to measure the twenty bags of

paddy (contending 48 Padi) in respect of the suit property for the fasli 1406 the second cultivation and for subsequent faslis as paddy itself, after

receiving the harvest notice from the revision Petitioner/Defendant to the Plaintiff (Respondents/ deceased father)

In the affidavit in E.A. No. 102 of 2002 filed by the Respondents'' father (deceased Plaintiff), it is mentioned that a decree has been passed in

favour of their father directing the revision Petitioner/Respondent/Defendant to deliver 20 bags of paddy of 48 Madras measures for each crop

(Bogum) from the second crop of 1406 Fasli etc. and the revision Petitioner filed E.A. No. 168/99 praying to pass an order that the decree in

O.S. No. 18/97 is in executable and incapable of execution and such E.P. No. 62/1999 is to be dismissed and that an order has been passed by

allowing the said application by holding that a separate suit has to be filed for collecting of rent in respect of each year.

Moreover, in the affidavit in E.P. No. 102 of 2002, it is also averred that as against the order dated 08.10.1999 in E.A. No. 168 of 1999, the

Petitioners'' father (deceased Plaintiff) has filed C.R.P. No. 2706 of 2000 before the Honorable High Court, Madras and the Civil Revision

Petition has been allowed and the order passed in E.A. No. 168/1999 has been set aside. Added further in the said Civil Revision Petition, a

direction has been issued to proceed with E.P. No. 62 of 1999 and dispose of the same within three months.

Apart from the above in C.R.P. No. 2706/2000, the Honorable High Court has observed that the Respondent (revision Petitioner) is in

arrears of rent even in respect of subsequent period after the decree in O.S. No. 18/1997 and he is liable to be evicted from the land. Moreover

an opportunity has been granted to the Respondents'' father (deceased father/Plaintiff) to seek for recovery of possession in the same execution

petition to evict the Respondent pursuant to the order.

The Revision Petitioner in his counter in E.A. No. 102 of 2002 as among other things averred that he filed an E.A. No. 168 of 1999 that in

O.S. No. 18 of 1997 is in executable one for subsequent faslies and the same has been allowed and E.P. No. 62 of 1999 has been dismissed and

the observation made in C.R.P. No. 2706 of 2000 cannot be executed and the Executing Court has not jurisdiction to evict the cultivating tenant,

since the revision Petitioner is entitled to the benefits under the Cultivating Tenants Protection Act.

Continuing further in the said counter, the revision Petitioner has also added that the claims of arrears of rent without a decree is not

maintainable and that the Court has to fix the arrears of rent and then pass order and for the reason of failure of crops, he is not liable to pay rent

and also that there is no direction to the Executing Court to pass an order of eviction by the Honorable High Court.

The Learned Counsel for the Petitioner/Respondent/Defendant in support of the contention that the decree passed by the trial Court in O.S.

No. 18 of 1997 dated 12.11.1997 lack inherent jurisdiction to entertain the suit in favour of the bar as per Section 3(1) of Tamil Nadu Cultivating

Tenants Protection Act and as such the decree passed is nullity etc., relies on the decision of the Honorable Supreme Court in Sarwan Kumar and

Another Vs. Madan Lal Aggarwal, wherein it held that the decree passed by the Civil Court lacking inherent jurisdiction to entertain the suit in view

of the specific bar contained in special Act governing the case would be a nullity and therefore, objection regarding invalidity of such decree can be

raised at any later stage including the stage of execution of the decree or any other collateral proceedings.

He also invites the attention of this Court to the decision of Honorable High Court in Manish Goel Vs. Rohini Goel, wherein it is observed as

follows:

Generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the

statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been

injected by law. (Vide State of Punjab and others Vs. Renuka Singla and others, , State of U. P. and others Vs. Harish Chandra and others, ,

Union of India and Another Vs. Kirloskar Pneumatic Company Limited, , Vice-Chancellor, University of Allahabad and Others Vs. Dr Anand

Prakash Mishra and Others, , and Karnataka State Road Transport Corporation Vs. Ashrafulla Khan and Others, .

The Learned Counsel for the Respondents (Legal Representatives of the deceased Plaintiff) places reliance on the decision of the Honorable

Supreme Court in Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, wherein it is laid down as follows:

If there is no specific provision which prohibits the grant of relief sought in an application filed u/s 151, the Courts have all the necessary powers u/s

151 to make a suitable order to prevent the abuse of the process of Court. Therefore, the Court exercising the power u/s 151, Code of CPC first

has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then

the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application.

At this stage, this Court pertinently points out that Section 3 (4)(1) speaks as follows:

Right to restoration of possession: Every cultivating tenant who was in possession of any land on the 1st December, 1953 and who is not in

possession thereof at the commencement of this Act shall, on application to the Revenue Divisional Officer, be entitled to be restored to such

possession on the same terms as those applicable to the possession of the land on the 1st December 1953.

Also, Section 3(4)(a) of the Act enjoins as follows:

the total extent of land held by such landlord inclusive of the land, if any, held by him as a tenant does not exceed the extent specified in the

Explanation below.

This Court aptly points out the decision in N. Sreedharan Thambi and Another Vs. Velayudhan Pillai and Another, , wherein it is held that

where the Defendants are cultivating tenants, the Civil Court has no jurisdiction to execute the decree for possession in view of the specific

provisions of Section 3(4) of the Act and the matter has to be gone into only by the Revenue Divisional Officer for the relief asked for, namely,

recovery of possession.

In this Connection it is not out of place for this Court to make a relevant mention that the effect of the proviso inserted to Section 3(4)(b) of the

Act is that the Revenue Court is not empowered to direct the tenant to deposit the time barred arrears of rent as per the decision in Palani

Gounder V.S.P. Thangavel Gounder reported in 1988(1) Mad.L.W. 499.

The Learned Counsel for the Respondents (Legal Representatives of the deceased Plaintiff) submits that in C.R.P. No. 2706 of 2000, dated

21.12.2001 (between Respondents'' father/the deceased Plaintiff v. Respondent(Defendant), it is inter alia observed by the High Court that in view

of the admitted fact of arrears of rent, it is unnecessary to compel the Petitioner to initiate separate proceedings to evict the Respondent. Since the

Respondent is undisputedly in arrears of rent and evading the payment on technical grounds, this Court is of the view that he is liable to surrender

possession to the Petitioner. Hence, it is open to the Petitioner to seek for recovery of possession also in the same execution petition to evict the

Respondent.

It is to be pointed out that merely because an observation has been made by this Court in C.R.P. No. 2706 of 2000 dated 21.12.2001, ""...

that it is open to the Petitioner to seek for recovery of possession also in the execution petition to evict the Respondent."" the same will not be of

any assistance to the Respondents (Legal Representatives of the deceased Plaintiff), because the relief of possession has to be looked into by the

Revenue Divisional Officer only as opined by this Court.

It is also brought to the notice of the High Court that the Respondent/Defendant is not adhered to the additional order passed by this Court in

C.M.P. No. 18290 of 2002 in C.R.P. No. 1747 of 2002 dated 27.10.2005, wherein he has been directed to deposit a sum of Rs. 85,000/-

(Rupees Eighty Five Thousand only) to the credit of E.P. No. 62 of 1999, on or before 30.11.2005, failing which, stay granted shall be dismissed.

As far as the present case is concerned, the decree passed in O.S. No. 18 of 1997 dated 12.11.1997 is in favour of the Respondents'' father

(deceased Plaintiff) in directing the Revision Petitioner(Defendant) to deliver 20 bags of paddy of 48 Madras Measures for each crop from the

second crop of 1406 fasli. Therefore, it is candidly clear that there is no decree in O.S. No. 18 of 1997 for evicting the revision

Petitioner/Defendant from the land. As per Section 3(4) of the Act, the issue of evicting the revision Petitioner/Defendant from the land is to be

gone into only by the Revenue Divisional Officer, namely the recovery of possession. Also A Revenue Court under the Tamil Nadu Cultivating

Tenants Protection Act will not have the power to remit the rent due by a tenant on the ground of failure of crop as per the decision of the High

Court in P. Ramaswamy Gounder and Anr. v. Perianna Moopan reported in (1959)1 Mad LJ 122. In the aforesaid decision it is held as follows:

In the absence of any statutory provision enabling an authority to grant remission, it is always a matter of grace by the landlord. A Revenue Court

under the Madras Cultivating Tenant Protection Act has no power to grant remission of the agreed rent due by a tenant or any portion of it on the

ground of failure of crop. The Court has to ascertain the arrears of rent due on the basis of the contract between the parties and the only remedy, if

any, open to the tenant is to apply for fixation of fair rent under the provisions of the Act.

E.A. No. 102 of 2002 filed by the Respondents'' Father (the Deceased Plaintiff) is not maintainable in law and subsequently, the order for

delivery of possession passed by the Executing Court in E.A. No. 102 of 2002, dated 09.09.2002 is hereby set aside, to prevent the aberration of

justice. Subsequently, the Civil Revision Petition succeeds.

In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, the connected Miscellaneous

Petition is closed. The order passed by the Executing Court, dated 09.09.2002 in E.A. No. 102 of 2002 ordering delivery of possession by the

Civil Revision Petitioner is hereby set aside and E.A. No. 102 of 2002 stands dismissed.