(1) This revision arises under the Madras Cultivating Tenants Protection Act, (Madras Act XXV of 1955), hereinafter referred as the Act, and is directed by the landlord against the order of Revenue Court, Tiruchirapalli, granting time to the respondents, cultivating tenants, under the Act, for depositing of the rent found to be in arrears. It is the contention of Mr. D. Ramaswami Iyengar, learned counsel or the petitioner, that, in the particular circumstances of this case, the Revenue Divisional Officer had no jurisdiction to grant time for Officer had no jurisdiction to grant time for deposit, and that, even if he had jurisdiction, there has been no judicial exercise of discretion.
(2) To appreciate the contention of behalf of the petitioner it is necessary to set out a few acts. The petitioner herein leased out the land in question, an extent of 1 acre and 80 cents bearing S. Nos. 711 and 712 in Nanjai Pugalur Village, Karur Taluk, to the Respondents herein under the registered lease deed dated 13-6-1957 for a period of 3 years on an annual cash rental of Rs. 1215. After the expiry of the period of the contract, the tenants have continued in possession. A sum of Rs. 100 is stated to be due as rent for the period of contract. The respondents-tenants failed to pay the rent for the subsequent period 1960-61 by the due date, that is, by 13-6-1961. Nor did they deposit the rent, as provided for under S. 3(3)(a) of the Act, within a month after it fell due., But the tenants deposited the rent in the revenue count on 26-9-1961 in P. No. 724 of 1961. This deposit, which was invalid, was opposed by the petitioner as not in accordance with law. In the application for making the deposit, the respondents stated that the father of the petitioner had issued notice claiming arrears of rent for the period 1960-61 that the petitioner himself had been demanding enhanced rent, and that, in these circumstances they had to take legal advice. The father of the petitioner was also made a party respondent to that application, though the deposit itself was made in the name of the petitioner. Following the decision of this Court Karuppanna Goundar v. Sadays Kudumban, 1961-2 Mad LJ 185 the Revenue Divisional Officer rejected the application, as no discretion has been given to the Revenue Court to entertain an application presented one month after the rent has fallen due. This order was passed on 4-11-1961. The amount in deposit was directed to be refunded to the respondents-tenants. It is after this petition by the tenants that the landlord, the present petitioner, filed the application under S. 3(4)(a) of the Act, on the order whereon granting time to the tenants for deposit of arrears the present revision has been filed. In his application for eviction the petitioner contended inter alia that the respondents having availed themselves of the provisions contained in sub-section (3) of S. 3 of the Act, the Revenue Divisional Officer had no discretion to allow time to the cultivating tenants for depositing the arrears of rent payable, and secondly that, even on the merits, there was no bona fides whatsoever for the court to consider the grant of further time to the tenants. With reference to the claim of Rs. 100 due for the contract period which was also subject to the application for eviction, the tenants denied their liability. They pleaded that the claim was false and baseless. The tenants expressed their readiness to pay the rent of Rs. 1200 lawfully due by them. They stated that many times they contacted the petitioner, but that the petitioner demanded enhanced rent at Rs. 10 per cent and avoided receiving the agreed rent.
(3) The Revenue Court, Tiruchirapalli, found that an arrear of Rs. 100 was due for the lease period ending 13-6-1960. It is referred to the readiness of the tenants to pay the rent due for 1960-61. The petitioner himself sent a draft lease deed bearing the date 13-4-1960. In accordance with that the rent of Rs. 1200 would be the proper rent. In the circumstances, the Revenue Divisional Officer remarked that the claim before him by the landlord of rent at Rs. 10 per cent appeared to be a penalty for failure of the tenants to execute the lease deed in terms of the draft lease deed. Observing that "some how or other the respondents have not paid this rent of Rs. 1200 to the petitioner but deposited the amount into the treasury and filed a deposit application with unfavorable result" and referring to the readiness of the tenants to pay the rent due, the Revenue Divisional Officer viewed in the circumstances that the tenants should be given the concession of depositing the amount due into the treasury and should not be evicted straightway. He ordered under S. 3(4)(b) of the Act that they should deposit the sum of Rs. 1300 on or before 16th April 1962. Failing such deposit, they were directed to be evicted. It is not disputed that the arrears have been deposited as directed. It is grant of time instead of ordering eviction straightway that impugned before me as devoid of jurisdiction and otherwise not a legal exercise of the discretion. For this reliance is placed on the provisions in S. 3(4)(b) of the Act, which gives jurisdiction to the Revenue Divisional Officer to allow time to the tenant to pay off arrears only in a case in which the tenant had not availed of the provisions contends that the jurisdiction(sic) and in a case where a tenant has availed himself of the provisions for deposit under sub-section (3) there could be no grant of time under sub-section (4)(b). The principal question for consideration is whether, in the circumstances of the case, the tenants should be considered to have availed themselves of the provisions of sub-section (3): & what is the interpretation to be put to the words "had not availed of the provisions contained in sub-section (3)".
(4) For the proper understanding of the words in question, it is necessary to refer to some of the other provisions of the Act. To start with, the Act has been passed for the protection of cultivating tenants from eviction. Section 3 sub-section (1) which places a general embargo on eviction, runs thus:
"Subject to the next succeeding sub-section s, no cultivating tenant shall be evicted from his holding or any part thereof, during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a court or otherwise."
Sub-section (2) of S. 3 takes away the protection of sub-section (1) to cultivating tenants in certain circumstances. In this case we are concerned with sub-clause (aa) of sub-section (2). Under this clause the protection of sub-section (1) will not apply to cultivating tenant
"who in the other areas of the State of Madras other than the areas set out in sub-clause (a), if in arrear at the commencement of(the) Act, with respect to the rent payable to the landlord and accrued due subsequent to the 31st March 1954 does not pay such rent with in a month after such commencement, or who in respect of rent payable to the landlord after such commencement does not pay such rent within a month after such rent becomes due".
In the present case, the cultivating tenants admittedly have been fond to be in arrears to the extent of Rs. 100 prior to April 1960 and the rent of Rs. 1200 due for 1960-61 was payable by 13-6-1961. They, therefore, lost the protection of sub-clause (1). Sub-clause (3)(a) Is an enabling provision which provides for deposit enabling provision which provides for deposit of rent by the cultivating tenants. It runs thus:
"(3)(a) A cultivating tenant may deposit in court the rent or, if the rent be payable in kind, the market value on the date of deposit, to the account of the landlord:
(I) in the case of rent accrued due subsequent to the 31st March 1954, within a month after the commencement of this Act; (ii) in the case of rent accrued due after the commencement of this Act, within a month after the date on which the rent accrued due.
(b) The court shall cause notice of the deposit to be issued to the landlord and determine after a summary enquiry, whether the amount deposited represents the correct amount of rent due from the cultivating tenant. If the court finds that any further sum is due, it shall allow the cultivating tenant such time as it mat consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing such further sum inclusive of such costs as the court may claim. If the court adjudged that no further sum is due, or if the cultivating tenant deposits within the time allowed such further sum as is ordered by the court, the cultivating tenant shall be deemed to gave paid the rent within the period specified in the last foregoing subsection . If having to deposit a further sum, the cultivating tenant fails to do so within the time allowed by the court, the landlord may evict the cultivating tenant as provided in sub-section (4)"
For a proper deposit under this sub-section , the cultivating tenants in this case should have deposited the rent for 1960-61 on or before 13-7-1961. Sub-clause (a) of sub-section (4) provides for the landlord making application to the Revenue Divisional Officer when he seeks to evict cultivating tenants who could be evicted under sub-section (2). Sub-clause (b) of sub-section (4) which has to be interpreted reads:
"On receipt of such application, the Revenue Divisional Officer shall after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under clause (a) or clause (aa) of sub-section (2) in which the tenant had not availed of the provisions contained in sub-section (3), the Revenue Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the land lord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct. if the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub-section (3)(b). If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction".
It must be noticed that, if within the time allowed by the Revenue Divisional Officer under sub-section (4)(b) deposit is made by the cultivating tenant, he shall be deemed to have paid rent under sub-section (3)(b) on deposit, notice of the deposit is issued to the landlord and enquiry is held whether the amount and posited represents the correct amount of rent due from the cultivating tenant. if the correct amount is found to have been deposited, the cultivating tenant shall be deemed to have paid rent within the period specified in sub-section (2) of S. 3. If the court finds that any further amount is due, it has to allow the cultivating tenant such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and cultivating tenant for depositing such further sum inclusive of such costs as the court may allow. When further amount is found due, the court a bound to allow further time. This provisions is mandatory and a discretion is given to the court only in regard to the period it grants for the deposit of the further amount due. It will be seen that, when the tenant makes deposit under S. 3(a),. the deposit is made within the time permitted by the Act for payment of rent. A period of one month after the rent falls due is permitted by the Act for payment, and if payment is made within that time, the embargo against eviction under sub-section (1) of S. 3 operates. The deposit to be made, has also to be made within the said period of one month. If the amount deposited is the correct amount, the tenant does not stand to gain any particular avoid dispute as to non-payment by the landlord. But it will be necessary for the tenant to make a deposit in a case where rent is payable in kind and the landlord does not co-operate in sharing the produce at the proper time and place. A tenant may also make deposit of rent if the landlord avoids receiving the rent or if there is a dispute as to the rent payable. While the court has to adjudge on the amount of deposit and this takes time and the court finding that further amount is payable grants time as it is bound to do under sub-section 3(b), the tenant does get advantage, by making the deposit under S. 3(b) as even though the balance of rent has been paid long after the due date, the entire rent shall be deemed to have been paid within the period specified in sub-section (2). A tenant who has to pay rent in kind and who avail himself of the provisions of sub-section (3) also may gain an advantage by paying in cash instead of measuring rent in kind. Once on deposit the court adjudges that no further sum is due or any further amount found due is deposited within the time allowed then there can be no action, for arrears in question under sub-section (4)(a). Sub-section 3(b) provides that a tenant shall be deemed to have paid within the specified period. After deposit under sub-section (3) occasion for action under sub-section (4) may arise only when the tenant having to make a further deposit fails to do so within the time allowed. If the tenant gets the benefit of an adjudication by the Revenue Court under sub-clause (b) as to the amount of rent due, secures time under that provision for payment of the balance and fails to make the deposit, he could properly be considered to be a person who had the advantage of that sub-section . If within the further time allowed he had made the deposit, he will be deemed to be a person who had paid within the time provided by sub-section (2) itself and he will not be a defaulter.
(5) Mr. D. Ramaswami Iyengar, learned counsel for the petitioner contends that even in a case like the present one where the deposit has been made out of time and dismissed it must be held that the tenant had availed himself of the provisions contained in sub-section (3). The argument is that, having invoked the provision of sub-sec. (3) and made deposit, he must be deemed to have availed himself of the provision of the sub-section . It is stated that he has certainly used the prevision of the sub-section and made a deposit, though it was futile and it could not and did not secure to him any specifical benefit provided therein. The question for consideration is whether an application under sub-section (3) which is preferred out of time and does not confer any benefit on the tenant is also one that would take away the jurisdiction of the Revenue Divisional Officer to grant time for deposit.
(6) Now, so far as the word "avail" is concerned, in Funk and Wanall's Dictionary "avail oneself of" is stated to mean "to take advantage of; utilise". The meaning given in Oxford Dictionary is also to the same effect. Webster's Dictionary makes "avail" synonymous with 'benefit' 'profit' 'use' and 'utility'. A person can be stated to have availed himself of something only if he had taken advantage or profited by that thing or utilised it to his benefit. The Act, as already stated, is aimed at the protection from eviction of cultivating tenants. In construing the words in question, I think it is proper to bear in mind in this case the rule that the sense of the words is to be adopted which best harmonies with the context and promotes in the fullest manner the policy and object of legislation. Section 3(3)(a) and(b) provide certain benefits to a cultivating tenant in certain cases. Therein when the amount originally deposited is not proper, the court, while granting time, has to consider such time as it is just and reasonable having regard to the relative circumstances of the landlord and cultivating tenant. Under sub-section 4(b) the Revenue Divisional Officer who is empowered to allow time to cultivating tenant, also allows such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant. As pointed out earlier, if the deposit is of the proper amount no question of application under sub-section (4)(b) arises. It can arise only if there is no deposit or if the initial deposit is insufficient. If the initial deposit is insufficient, the Revenue Court grants further time on the same considerations as it takes in when granting time under sub-section (4)(b) in a case where there has been no previous deposit. If the tenant having availed himself of the grant of time under sub-section (3)(b) fails to make the further deposit and action becomes necessary under Dub-section (4), he will be having a double advantage if he can get time under sub-section (4) also in spite of the default. The court has already considered the time that should be granted under sub-section (3)(b) and granted the time and he had defaulted. In my view, it is only in such circumstances that the Revenue Divisional Officer is precluded from granting time for deposit under sub-section (4)(b). A cultivating tenant who had some benefit under sub-section (3) could be considered to have availed himself of the provisions of sub-section (3). It will be seen that the latter part of sub-section (4)(b) provides, on deposit being made within the time granted by the Revenue Divisional Officer, that the cultivating tenant shall be deemed to have paid rent under sub-section (3)(b). That in a way gives the clue as to when a tenant could be said to have not availed of the provisions contained in sub-section (3).
(7) Mr. D. Ramaswami Iyengar, learned counsel for the petitioner referred me to the decision of Jagadisan J. in Anandanarayana Iyer v. Nataraja Muthiriyan, C.R.P. No. 979 of 1958 (Mad). The facts of that case are rather peculiar and extraordinary. The tenant applied within time of making the deposit. A further amount was found due and he was granted time for making further deposit. He complied with that order also and made deposit within the time prescribed; but later the tenant, through his counsel, endorsed on the application that the petition was not pressed in view of the pending fair rent petition and asked for there fund of the deposits made. The landlord had no notice of the subsequent proceedings by which the tenant had got refund of the deposits made by him. On the landlord subsequently taking proceedings for eviction under S. 3(4)(a), the Sub Collector, Pollachi, on the admission of the tenant of the arrears and offer of deposit, granted him on month's time. In the circumstances when the matter came up before this court at the instance of the landlord in revision, the learned Judge Jagaisam J. observed:
"It is obvious that S. 3(4)(b) of the Act takes out a tenant who had availed himself of the provisions of S. 3(3) of the Act from the category of cultivating tenants in whose favour the Revenue Divisional Officer may exercise a discretion by granting time to make the payment. It is not necessary to probe into the mind of the legislature why the discretion to grant time conferred on the Revenue Divisional Officer is confined only to tenants who had not availed themselves of the provisions enabling to make a deposit within a month after rent accrued due.........Perhaps the legislature thought it to be very in equitable that a cultivating tenant who gets the advantage of benefit of sub-section (3) of S. 3 of an enlarged time to make the deposit should again be a position to ask for further time in the eviction proceedings which might have cropped up as a result of his default in not having complied with the previous orders of the court.....In view of the proceedings in C.M.C. 34 of 1957 on the file of the Sub Collector, Pollachi, the tenant has obviously availed himself of the provisions contained in S. 3(3). He not merely made the necessary application in accordance with the said sub-section , but he made the initial deposit and also the further deposit as called for by the court. It was not open to the tenant on 7-6-1957 to retrace the steps already taken by him and purport to withdraw the application and to ask for a refund of the deposit made. The proceedings in C.M.C. 34 of 1957 came to an end and terminate irrevocably by the order of the Sub Collector dated 22-4-1957. If the tenant complied with the said order and made the deposit of Rs. 490 the application will stand dismissed which means that the tenant was a defaulter. If the tenant complied with the said order and made the deposit within the time prescribed then the money deposited in court was no longer that of the tenant but belonged to the landlord, as the enact obtained full discharge of all his obligations once he made the deposit as per the provisions of the Act. I am of opinion that the order passed by the Sub Collector, Pollachi dated 7-6-1957 permitting the extraordinary and illegal prayer of the tenant to withdraw the application and to obtain the refund of the money from court deposit is absolutely without jurisdiction and null and void. I am further of opinion that even if the order dated 7-6-1957 cannot be challenged or impugned in these proceedings as benign on set the tenant is nevertheless a person who can be rightly characterised as one who has availed himself of the provisions contained in S. 3(3) of the Act. It follows that the Sub Collector had no jurisdiction to allow the tenant any time to pay the rent as prayed for by him." I am unable to see; how this case can apply to the facts of the present case. In the present case, the Revenue Court had no jurisdiction to accept any deposit under sub-section (3)(3) to deposit being more than one month after rent had fallen due. The landlord could have immediately proceeded under S. 3(4) for eviction. As noticed by Kailasam J. in 1961-2 Mad LJ 185 when the deposit is not made in time the court would have no jurisdiction to entertain the petition. Nor has the tenant derived the benefit of any order under sub-section 3(b). Therefore, there was in law no deposit under sub-section (3)(a) or any order under sub-section (3)(b). Learned counsel for the landlord(petitioner) argued that, by reason of the pendency of the petition purporting to be under sub-sec. (3)(a) he had not filed his application for eviction. I do not se how that can have any bearing in the matter. The application by the tenants being not one permitted by the Act, nothing prevented the landlord from proceeding with his own application for eviction under S. 3(4). Learned counsel for the landlord also drew my attention to the decision of the Supreme Court in Chellammal Anni v. Masanan Samban,
, and laid emphasis on the following observations
in the judgment in that case:
"It is clear therefore that the direction allowed under clause (b) of S. 3(4) only comes into play where the tenant for some reason or the other has not made a deposit under Section 3(3)".
It is argued on this that only if there has been no deposit the discretion could be exercised by the Revenue Divisional Officer, and once there has been deposit whether it is valid or not there could be no exercise of the discretion. In that case rent was payable in kind and the landlord had not co-operated in the division of crops. The tenant could have deposited the market value of the rent payable in kind in Court under S.3(3) of the Act. But he sent money order to the landlord. The Revenue Divisional Officer proceeded in the view that he should not exercise the discretion in favour of the tenant and give him time because he had not acted as he should have acted and deposited the amount in court under S. 3(3) of the Act. It is on these facts that the Supreme Court observed:
"This view of the Revenue Divisional Officer is in our opinion patently incorrect. Now if the respondent had acted as he should have acted and made a deposit under S. 3(3) of the Protection Act the matter would have been dealt thereunder. The Court which includes the Revenue Divisional Officer would then have to consider whether the amount deposited was correct and if it was deficient the Court was bound to give time to the tenant to make up the deficiency. It is only when the deficiency is not made good within the time allowed that the landlord would have the right to make an application under S. 3(4) for eviction. It is clear therefore that the discretion allowed under clause (b) of S. 3(4) only comes in to play where the tenant for some reason or to her has not made a deposit under S. 3(3). To hold therefore--as the Revenue Divisional Officer seems to have held--that the discretion will not be exercised in favour of the tenant because he had failed to make deposit under S. 3(3) of the Act is a patent violation of the provision in clause (b) of S. 3(4) as to the exercise of discretion".
It must be noticed that the emphasis is on the deposit being one under S. 3(3). It is the deposit under that section that takes away the jurisdiction of the Revenue Divisional Officer. In the present case there has been no deposit under S. 3(3) of the Act. A deposit out of the time cannot be considered to be one under the Act, the Court having no jurisdiction to receive the deposit. The tenant in a such a case will not be in a worse position than he would have been if he had made no deposit at all. The jurisdiction of the Revenue Divisional Officer had not been even properly invoked by the tenants in the present case for him to exercise a judicial discretion in their favour and grant them time or find discharge upon the deposit in the earlier proceedings. For the first time, the Revenue Divisional Officer is called upon to exercise his judicial discretion only in the proceedings under S. 3(4) of the Act on the application of the landlord for eviction. This discretion which is vested in the Revenue Divisional Officer cannot be taken away by the presentation of an application earlier which the Revenue Divisional Officer was not competent to entertain. The present landlord had opposed the maintainability of that application. He had not accepted and stood by it. I am therefore unable to accede to the view of learned counsel for the petitioner that the Revenue Divisional Officer has no jurisdiction in this case under S. 3(4) to allow time for depositing the arrears of rent.
(8) The next question for consideration is whether there has been no legal exercise of discretion as contended by the learned counsel for the petitioner. Learned counsel contends that the order of the Revenue Court does not show a judicial exercise of discretion. I cannot agree. The Revenue Court has set out all the circumstances of the case and then conclude that in the circumstances a concession should be shown by giving them time for deposit, and that an order for eviction should not be made straightway. There is a conscious exercise of discretion in favour of the tenants. There is evidence that the landlord has demanded an excess rent at Rs. 10 per cent. The tenants also stated that the landlord has been avoiding receiving of the rent tendered. As observed by the Supreme Court in the case above referred to, the Revenue Divisional Officer "has to take into account the circumstances of each case and then exercise discretion whether he should give time to the tenant or not". Once the discretion is exercised in one way and there is no patent violation of any provision of law in the exercise of the discretion or any perversity manifested in the order, this court is bound by the exercise of the discretion and cannot interfere with the same under S. 115 C.P.C. It cannot be said that there has been no judicial exercise of discretion in this case. Learned counsel for the petitioner referred me to a decision of Ramachandra Iyer C.J. in Meenakshiammal v. Ratnasami Hilangiriyar, C.R.P. No. 731 of 1960 (Mad) where the order of the Revenue Court granting time for payment of arrears was revised and eviction ordered. But in that ace it is observed:
"The Revenue Court never applied its mind to the question whether the defaulting tenant should be granted time for the payment of rent or he should be evicted forthwith. It found that there was a default in the payment of rent and mechanically as it were allowed the tenant to pay up just as it did in the previous year". In the present case the order of the Revenue Divisional Officer cannot be characterised as mechanical while granting time. Reasons have been given by him for granting time.
(9) In the result, the revision petition fails and is dismissed. There will be no order as to costs.
(10) Revision dismissed.