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Chinnamerkathian and ors. Vs. Ayyavoo and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberS.C.P. Nos. 84 to 86 of 1965 in C.R.P. No. 2399 of 1961 etc., and S.C.M.P. Nos. 108 to 110 of 1965
Judge
Reported inAIR1966Mad327
ActsConstitution of India, 1950 - Articles 133 and 133(1); Madras Cultivating Tenants Protection Act - Sections 3 and 6(B); Defence of India Act - Sections 19(1); Code of Civil Procedure (CPC), 1908 - Sections 109, 110 and 115
AppellantChinnamerkathian and ors.
RespondentAyyavoo and ors.
Cases ReferredHanskumar v. Union of India.
Excerpt:
.....to extend the time. he had not become functus officio but still retained control over the proceedings. the proceedings would come to an end only if the tenant had been actually evicted. having regard to the scheme of the cultivating tenants' protection act, the principles and the considerations which applied to an action for redemption by a mortgagor where the court exercised equitable jurisdiction would equally apply. the fact that a decree had become final was not considered as an absolute bar in all cases denying jurisdiction to the court which passed the decree to grant relief in the exercise of equitable jurisdiction. the principle of the cases which dealt with equitable jurisdiction to grant relief would a fortiori apply to cases of relief against forfeiture. in that view..........counsel for the respondents contended that the revision petitions before this court are not civil proceedings within the meaning of article 133(1), but are revenue proceedings or are some proceedings of an anomalous nature instituted for working out certain statutory obligations and rights, under a special state. he urged that the revenue divisional officer was exercising a special jurisdiction functioning on the revenue side working and enforcing the provisions of a statute conceived in the interests of the tenants, and that the proceedings in which the question that is raised is whether the tenant is entitled to a protection under section 3 of the cultivating tenants protection act, cannot be said to be a civil proceeding within the meaning of article 133. we have no hesitation.....
Judgment:
(1) These petitions for grant of leave under Article 133(1)(a), (b) and (c) of the Constitution arise out of proceedings taken by the respondents, the landlords, under the Madras Cultivating Tenants Protection Act. The respondents purchased the property from the previous owners, Nachaiammal and her sons under two sale deeds Ex.P. 6 dated 22-1-1960 and Ex.P. 7 dated 9-3-1960. On 25-5-1960 the prior vendors had issued a notice to the tenants, the petitioners herein, claiming the arrears of rent due from them for the years 1958-59 and 1959-60 and also threatening eviction. Under Ex.P. 5 dated 5-12-1960, the arrears of rent due from the tenants to the vendors were assigned to the respondents, the purchasers who filed the petition for eviction on 2-1-1961 on the ground that the petitioners herein, the tenants, were guilty of wilful default in the payment of rent.

(2) The tenants resisted the eviction proceedings on the ground that there were no arrears, that they had paid the same to the previous landlords, the vendors, and that even if they were in arrears, the purchaser who purchased the property subsequently could not rely upon the arrears accrued due prior to the purchase as a ground for eviction. For the period 1960-61, the tenants contended that there was diminution in the extent of land leased out to them and that there should be a corresponding abatement in the rent. The Revenue Divisional Officer overruled these objections of the tenants, holding that the tenants were in arrears in a sum of about Rs. 4800 and that they should be evicted if they did not pay the arrears within six weeks from the date of the order.

(3) The tenants preferred revision petitions against that order and in view of the importance of the points of law and the objections raised by the tenants in the revision petitions they were posted before a Bench. We dismissed the revision petitions holding that the respondents were entitled to obtain an order for eviction.

(4) The main point urged before us in the revision petitions on behalf of the tenants was that under the scheme of the Cultivating Tenants Protection Act, if the ground of eviction is one of arrears of rent, a subsequent purchaser could not rely upon the same even though he had obtained an assignment of the arrears of rent from the prior vendor. The other point that was urged was that the Revenue Divisional Officer ought not to have passed a rolled up order but that he should have first passed an order determining the arrears and giving some time for the payment thereof and that he should have passed a second order for eviction in the event of default by the tenants to pay the arrears as found due. On an elaborate consideration of the provisions of the Cultivating Tenants Protection Act, and the provisions of the Transfer of Property Act, and the relevant case law both under the Transfer of Property Act and under the various tenancy legislations, we held that a subsequent purchaser would be entitled to obtain an order for eviction even though the ground of eviction may be the arrears of rent accrued due to the prior vendor. We also held that the fact that the Revenue Divisional Officer passed a rolled up order did not render the order illegal.

(5) We are satisfied that this is a case in which leave should be granted under Article 133(1)(b) and (c). A perusal of our judgment will show that the point raised involves substantial questions of law; in any event this is a fit case for appeal to the Supreme Court. As to when a question of law could be said to be a substantial question of law satisfying the requirements of Article 133, it is sufficient to refer to the statement of the law in the recent decision of the Supreme Court in Chunilal V. Mehta and Sons v. C.S. and M. Co. Ltd. . In this decision the Supreme Court referred to the divergence of judicial opinion amongst the various High Courts and preferred to follow the test and the broader view propounded by the Full Bench of this court in Subbarao v. Veeraju , as the sound one. According to this decision "if a question of law is fairly arguable, when there is room for difference of opinion on it, or when the court thought it necessary to deal with that question at some length and discuss alternative views then the question would be substantial question of law, and that if the question was practically covered by the decision of the highest court, or the general principles to be applied in determining the question are well settled and the only question was of applying these principles to the particular facts of the case, it would not be a substantial question of law". Applying this test we are of the opinion that the petitioners are entitled to a certificate under Article 133(1)(b) and (c).

(6) On the question of valuation it is not in dispute that the properties leased are valuable properties, vast extent of land, and the rent itself is in the region of Rs. 3500 per annum. There is no doubt and it is not disputed before us by learned counsel for the respondents that the properties covered by the lease would easily exceed Rs. 20,000 in value. The order in question undoubtedly is respecting property of the value of over Rs. 20,000 coming under Article 133(1)(b).

(7) Learned counsel for the respondents contended that the revision petitions before this court are not civil proceedings within the meaning of Article 133(1), but are revenue proceedings or are some proceedings of an anomalous nature instituted for working out certain statutory obligations and rights, under a special state. He urged that the Revenue Divisional officer was exercising a special jurisdiction functioning on the revenue side working and enforcing the provisions of a statute conceived in the interests of the tenants, and that the proceedings in which the question that is raised is whether the tenant is entitled to a protection under Section 3 of the Cultivating Tenants Protection Act, cannot be said to be a civil proceeding within the meaning of Article 133. We have no hesitation in holding that this objection is totally devoid of substance. We are clearly of the opinion that a proceeding by the landlord against the tenant for eviction by enforcing the provisions of the Cultivating Tenants Protection Act is a civil proceeding.

In our opinion, the matter is too elementary to require any elaboration. If we may say so we are astonished at the extreme contention urged by the learned counsel for the respondents. In every proceeding (other than criminal) at some stage or other, some or all the points in controversy may have to be adjudicated upon with reference to the provisions of one or more statutes and it is impossible to accept the contention that merely because the decision necessitates or involves an interpretation of the provisions of a statute and their application, the proceeding would cease to be a civil proceeding, as though a civil proceeding would comprehend only disputes involving questions of personal law having no connection with any statutory enactment. It is difficult to give an exhaustive and comprehensive definition of 'civil proceeding'. They are not limited to common law rights only but would include any right to property, declaration of status though these may be creatures of statutes. We see no warrant for giving any such narrow and restricted meaning to the words "civil proceeding" under Article 133 as contended by counsel for the respondents.

In this connection we would like to refer to the recent decision of the Supreme Court in S.A.L. Narayan Rao v. Ishwarlal Bhagwandas, in which it was held that a writ petition filed by an assessee questioning the steps taken by the Income-tax Department for enforcing the provisions of the Income-tax Act is a civil proceeding within the meaning of Article 133. The Supreme Court held that "there was no ground for restricting the expression 'civil proceeding' only to those proceedings which arise out of civil suits or proceedings which are tried as civil suits, and that the words 'civil proceeding' cover all the proceedings in which a party asserts the existence of a civil right conferred by civil law of by statute and claims relief for breach thereof". The matter was put thus at page 156 (of ITR): (at p. 1821 of AIR):-

"The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is therefore one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status, etc."

In view of this clear pronouncement in the decision of the Supreme Court we are of the opinion that the matter is simply unarguable.

(8) Learned counsel for the respondents relied upon the decision of the Supreme Court inHanskumar v. Union of India. in

support of his contention. In that case there was a reference to the District Judge in respect of proceedings for acquisition under Section 19(1)(b) of the Defence of India Act. The District Judges delivered an award and there was an appeal to the High Court from that award under Section 19(1)(b) of the Defence of India Act, and a further appeal to the Supreme Court. At the hearing of the appeal before the Supreme Court, the objection was raised that the decision of the High Court was not a judgment or a decree or an order within the meaning of section 109 or Section 110 of the C.P. Code, and the appeal was accordingly incompetent. The Supreme Court held that the proceedings before the District Judge were arbitration proceedings, that the appeal to the High Court was essentially a continuation of the original proceeding, and that even before the High Court their character would not suffer any change, with the result that an arbitration proceeding at its inception would retain its character as an arbitration proceeding throughout. The decision turned upon the peculiar provisions of the Defence of India Act, in the view that the statute had made the decision as a decision in an arbitration proceeding and not in a civil proceeding and that the District Court decided the arbitration proceeding as a persona designata and not as a civil Court in a civil proceeding. This decision is clearly distinguishable and in our opinion the ratio of this decision is against the contention of the respondents. Section 6(B) of the Cultivating Tenants Protection Act expressly provides that the Revenue Divisional Officer shall be deemed to be a court subordinate to the High Court for the purpose of S. 115 C.P.C. and his order shall be liable to revision by the High Court under the provisions of that Section. It is clear therefore that the proceeding before the High Court is a civil proceeding and the same was disposed of by this court under Section 115 C.P.C. The statute itself regards and declares the Revenue Divisional Officer as a court subordinate to High Court and the proceeding in the High Court as a civil proceeding within the meaning of Section 115. For all these reasons we overrule the objections raised by the respondents.

(9) Leave asked for is accordingly granted. Interim stay of eviction is granted for a period of eight weeks to enable the petitioners to obtain appropriate orders of stay from the Supreme Court.

There shall be no order as to costs.

(10) Petition allowed.


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