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Ramaswamy Raja and anr. Vs. Ellappa Gounder - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1960)2MLJ555
AppellantRamaswamy Raja and anr.
RespondentEllappa Gounder
Cases ReferredIn Appai Goundan v. Perlchi Gounder
Excerpt:
.....aside for good cause; (g) the ordering of dismissal for default of appearance and setting aside such orders for good cause; as i stated earlier, the question is not whether the power is necessary for the purpose of effectively adjudicating a dispute between a landlord and tenant or even whether such a power, can be implied in the circumstances of the case, but whether it was expressly given by the statute. 8. this conclusion can be reached by another line of reasoning as well......this revision petition raises the question whether a revenue divisional officer exercising the powers granted to him under madras act xxv of 1955, would be entitled to grant an order of injunction pending proceedings initiated under section 3(3)(a) of that act.2. the respondent claiming to be a cultivating tenant deposited the rent under section 3(3)(a) of the act and while proceedings under clause (b) of that sub-section were pending applied to the revenue divisional officer for an injunction to restrain the landlord and certain others claiming to be purchasers from him from interfering with his possession. the officer granted the injunction prayed for and the jurisdiction of the officer to do so is challenged in the civil revision petition.3. an injunction is a remedy which is.....
Judgment:

Ramachandra Iyer, J.

1. This revision petition raises the question whether a Revenue Divisional Officer exercising the powers granted to him under Madras Act XXV of 1955, would be entitled to grant an order of injunction pending proceedings initiated under Section 3(3)(a) of that Act.

2. The respondent claiming to be a cultivating tenant deposited the rent under Section 3(3)(a) of the Act and while proceedings under Clause (b) of that Sub-section were pending applied to the Revenue Divisional Officer for an injunction to restrain the landlord and certain others claiming to be purchasers from him from interfering with his possession. The Officer granted the injunction prayed for and the jurisdiction of the Officer to do so is challenged in the Civil Revision Petition.

3. An injunction is a remedy which is preventive in its nature, that is a remedy before any injury is sustained, i.e., when there is only a threat of an injury. It is now accepted by the decisions of this Court that except in cases where this Court issues an injunction by virtue of its inherent powers as a Court of Record, the subordinate Courts would have no power to issue orders of injunction beyond what is expressly conferred on them by the Code of Civil Procedure. Section 94 of the Civil Procedure Code states that in order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, grant a temporary injunction, and in case of disobedience, commit the person guilty thereof to the civil prison and order that his property be attached and sold. The expression ' if it is so prescribed ' obviously refers to Order 39, Rules 1 and 2 of the Code. Therefore, it will follow that Courts to which the Code of Civil Procedure applies would have powers to grant a temporary injunction in accordance with Order 39, Rules 1 and 2, and there would be no scope for implying any inherent power in any one of such Courts. An injunction is a specific relief and the jurisdiction to grant it should be conferred by statute. Now the question in the present case is whether the Revenue Court acting under Act XXV of 1955 will have power to grant an injunction. The Code of Civil Procedure does not wholly apply to that Court. It has therefore to be seen whether, on the terms of the provisions contained in Act XXV of 1955, such a power exists in that Court. It is needless to point out that a power to grant an injunction cannot be assumed to exist by any implication of law. The reason is that ordinarily it is the civil Court that will have the jurisdiction to grant an injunction. When a statutory tribunal ousts the jurisdiction of the civil Court in regard to certain matters, it has got to be seen whether the powers of the civil Court in regard to injunction, etc., have been abrogated and those powers have been expressly conferred on the special tribunal. It is therefore necessary to examine the provisions of Madras Act XXV of 1955 to ascertain whether there is such a power.

4. Section 3(1) of the Act declares that a cultivating tenant shall not be evicted from his holding or any part thereof except at the instance of the landlord and except in accordance with the provisions of the Act. Sub-section (2) provides the cases which would be exempted from operation of the prohibition contained in Section 3(1). Sub-section (3)(a) enables the cultivating tenant to deposit the rent payable in the Revenue Court and clause (b) of that Sub-section provides for the determina.tion as to the sufficiency or otherwise of the rent deposited. Sub-section (4) provides for the eviction of tenants. Section 4 declares the right of a tenant who had been dispossessed for being restored back to possession. It is unnecessary to refer to Sections 4-A and 5. Section 6 bars the jurisdiction of the civil Court in regard to matters which the Revenue Divisional Officer is empowered under the Act to determine. Section 6-A directs that certain suits for possession or injunction instituted by the landlord against a cultivating tenant in the ordinary Courts should be transferred for disposal to the Revenue Divisional Officer. Section 7 confers a power on the State Government to frame rules for carrying out the purposes of the Act. It is clear from the provisions of Section 6 that the civil Court will have power to grant an injunction in regard to matters between the landlord and the cultivating tenant except in cases where the Revenue Divisional Officer is exclusively empowered by the Act. The Act itself does not provide for the adjudication of disputes between the landlord and the cultivating tenant in all matters. In other words, it is not a code in regard to disputes between a landlord and a cultivating tenant. It provides only for a limited class of cases, namely, deposit of rent by a tenant, eviction by the landlord of the cultivating tenant and restoration of possession to the tenant in case the landlord unlawfully dispossesses him. There is no provision in the enactment enabling the tenant to be protected in his possession either by expressly granting a power in the Revenue Court to grant an injunction or to punish an erring landlord when he dispossesses a tenant. The only protection granted to the tenant who has been dispossessed is under Section 4 of the Act.

5. Rules have been framed under Section 7 of the Act. Rule 8 (ii) as originally framed applied the provisions of the Code of Civil Procedure with regard to (a) the issue and service of summons, (b) the examination of parties and witnesses and (c) to production of documents. In Appai Goundan v. Perichi Gounder : (1958)2MLJ99 a question arose whether a Revenue Divisional Officer would have jurisdiction under the Act to set aside ex parte orders. That question was answered in the negative by Basheer Ahmed Sayeed, J. The learned Judge held that a Revenue Divisional Officer acting under Act XXV of 1955 was not a Court having any inherent jurisdiction and that the rules of the Civil Procedure Code would not in general apply to the proceedings before him in extenso and that as such he would have no power to set aside an ex parte order passed by him or to stay the execution of the order on the ground that the ex parte order was made without jurisdiction. After this decision was rendered the rule-making authority introduced Sub-rules (d) to (i) to Rule 8 (ii). They were : (d) the amendment of pleadings; (e) the addition of parties; (/) the passing of ex parte orders and setting them aside for good cause; (g) the ordering of dismissal for default of appearance and setting aside such orders for good cause; (h) local inspection; and (i) the passing of orders. It will be seen that even if a power to grant an injunction, could be granted by the rules, there is no provision in Rule 8 (ii) even as amended to enable the Revenue Court to grant an injunction. It is very doubtful whether the jurisdiction to grant a specific relief by way of an injunction could at all be the subject-matter of the Rules framed under Section 7. But whatever that may be it is sufficient for the present purpose to state that there is no express power either in the Act or in the Rules enabling the Revenue Court to grant an injunction restraining the landlord from interfering with the possession of the tenant.

6. Mr. S. Varadarajulu Naidu, learned advocate for the respondent, in the course of his able arguments dealt at length with the object and purposes of the Act and contended that as the intention of the Legislature in enacting the legislation was the avowed purpose of protecting the cultivating tenant from eviction, it was necessary as an incident of the exercise of the powers conferred on the Revenue Courts the t they themselves should have a power pending disposal of the petition to restrain a landlord who wants to take by force possession from a tenant whoserights were declared by the statute. learned Counsel pointed out that Section 3 protects the rights of a cultivating tenant by declaring that he should be allowed to continue in possession and if he were dispossessed Section 4 in certain circumstances also enabled him to obtain restoration of possession. It was therefore contended that the Court should have a power to prevent unlawful dispossession. That, according to the learned Counsel, is an incidental power which should be implied from the other provisions of the Act. As I stated earlier, the question is not whether the power is necessary for the purpose of effectively adjudicating a dispute between a landlord and tenant or even whether such a power, can be implied in the circumstances of the case, but whether it was expressly given by the statute. It is needless to point out that there being no such provision, it cannot be a matter for implication. The tenant has always got his remedy in such cases to approach the civil Court for relief by way of injunction.

7. learned Counsel next contended that Rule 8 (ii), sub-clause (i) would enable the Officer to grant the order of injunction. Rule 8 (ii) enumerates certain classes of cases in which the provisions of the Code of Civil Procedure would apply (vide Clauses (a) to (h)). Clause (i) is the residuary clause which says ' the passing of orders. ' In the context ' the passing of orders ' mentioned in clause (i) could only be correlated to the subject-matter dealt with from Clauses (a) to (h) and it cannot imply that the Court will have all the other powers mentioned in the Code of Civil Procedure in regard to a civil Court. To construe in the way in which it is contended would only mean that the enumeration in Rule 8 (ii) is unnecessary which will be the case if all the provisions of the Code of Civil Procedure were to apply. I am of opinion that the powers of the Civil Court in regard to granting of injunction not having been taken away and conferred on the Revenue Court in regard to the cases arising under the Act XXV of 1955, the Revenue Court would have no jurisdiction to pass any order granting injunction.

8. This conclusion can be reached by another line of reasoning as well. In Appai Goundan v. Perlchi Gounder (1958) 3 M.L.J. 99, Basheer Ahmed Sayeed, J., held that the provisions of the Code of Civil Procedure would not generally apply to the proceedings before the Revenue Divisional Officer under Act XXV of 1955 except in so far as they have been specifically incorporated into that Act. After the decision was rendered the rule-making authority added Clauses (d) to (i) alone. That shows that the rule-making authority accepted the decision of the learned Judge and provided only for a few of the cases provided in the Code of Civil Procedure. That would imply that in regard to the other matters not provided for in Rule 8 (ii), the authority accepted the decision of this Court, namely, that the other provisions of the Code of Civil Procedure would not apply. It would follow that the provisions of Order 39 would not apply to a case under the Cultivating Tenants' Protection Act.

9. The result is that the Revenue Divisional Officer would have no jurisdiction to grant an injunction restraining the landlord from entering the property. This Civil Revision Petition is allowed. There will be no order as to costs.


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