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R. Ramanathan Chettiar, Through Power Agent Subbiah Chettiar Vs. K.R. Rathinammal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1974)2MLJ449
AppellantR. Ramanathan Chettiar, Through Power Agent Subbiah Chettiar
RespondentK.R. Rathinammal and ors.
Cases ReferredChockalingam v. Krishna
Excerpt:
.....in respect of the fasli year in which the estate is notified under this act and any amount collected by the landholder from the ryots in excess of the rent determined under the madras estates land (reduction of rent) act, 1947 and outstanding to the credit of the ryots on the first day of the fasli..........in ramanathapuram district. originally, this village was sought to be notified under the madras estates abolition act and the settlement officer made enquires to find out if the village was an inam estate within the meaning of the act. the respondents herein and other tenants participated in the enquiry by leading evidence. ultimately, the settlement officer, by his order dated 24th september, 1949, held that thenkarai village was not an inam estate within the meaning of the madras estates (abolition and conversion into ryotwari) act (xxvi of 1948). the view of the settlement officer was that the grant of thenkarai village comprised of both the warams and, therefore, the act was not applicable.3. the tenants appealed against this order to the estates abolition tribunal, madurai. the.....
Judgment:
ORDER

S. Maharajan, J.

1. These civil micellaneous second appeals arise under the following circumstances:

2. The appellant herein was the Inamdar of Thenkarai village in Ramanathapuram District. Originally, this village was sought to be notified under the Madras Estates Abolition Act and the Settlement Officer made enquires to find out if the village was an inam estate within the meaning of the Act. The respondents herein and other tenants participated in the enquiry by leading evidence. Ultimately, the Settlement Officer, by his order dated 24th September, 1949, held that Thenkarai village was not an inam estate within the meaning of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948). The view of the Settlement officer was that the grant of Thenkarai village comprised of both the warams and, therefore, the Act was not applicable.

3. The tenants appealed against this order to the Estates Abolition Tribunal, Madurai. The Tribunal held by its order dated 21st April, 1950 that the village was an inam estate and reversed the finding of the Settlement officer. Thereupon, the appellant-inamdar, filed two writ petitions in this High Court, one in C. M. P. No. 4845 of 1951 and another in C. M. P. No. 10866 of 1950, challenging the view of the Tribunal, but both these petitions were dismissed by this Court. Against the orders of dismissal, two Letters Patent Appeals were filed. Meanwhile, the inamdar-appellant had instituted suits against the respondents herein and other tenants in O. S. Nos. 292 to 339 of 1957 on the file of the District Munsif's Court, Sivaganga, for recovery of rent for Faslis 1364 to 1366. During the pendency of the writ appeals, one of the tenants, Chockalingam, moved the High Court for stay of trial of the said suits and on his application a conditional order was passed, whereby the trial of the said suits was stayed on condition that the tenants deposited into the trial Court 1/3. of the amount claimed by the inamdar by way of arrears of rent. This amount was deposited by the tenants.

4. Subsequently, the High Court allowed the Letters Patent Appeals and quashed the order of the Estates Abolition Tribunal as well as the notification made by the Government under the Estates Abolition Act. The basis of this decision was that the Thenkarai village was not an inam within the meaning of the Estates Abolition Act. Thereupon, the State of Tamil Nadu preferred appeals to the Supreme Court. By its judgment dated 20th September 1965, the Supreme Court allowed the appeals, after holding that the village concerned was really an inam within the meaning of the Estates Abolition Act. In pursuance of the judgment of the Supreme Court, the Government of Tamil Nadu published a notification on 3rd August 1966 whereby it notified the village as an estate. On 28th July, 1969, the District Munsif, Sivaganga, dismissed O. S. Nos. 292 to 339 of 1957 on the ground that the estate had been notified, and therefore, the civil Court had no jurisdiction to entertain the suits by the inamdar for recovery of arrears of rent due. This view was taken because Under Section 55 of the Estates (Abolition and Conversion into Ryotwari) Act, after the notified date, the landholder shall not be entitled to collect any rent which accrued due to him from any ryot before, and is outstanding on that date, but the manager appointed Under Section 6 shall be entitled to collect all such rent and any interest payable thereon together with any costs which may have been decreed, as if they were arrears of land revenue; and there shall be paid to the landholder all amounts so collected after deducting (a) ten per cent thereof on account of collection charges, (b) the arrears of 8peshkash, quit rent, jodi and other amount, if any, of like nature due from the landholder to the Government, and (c) the rent, if any, collected before the notified date by the landholder from the ryots in respect of the fasli year in which the estate is notified under this Act and any amount collected by the landholder from the ryots in excess of the rent determined under the Madras Estates Land (Reduction of Rent) Act, 1947 and outstanding to the credit of the ryots on the first day of the fasli year. Section 58-A of the Act provided that no Court shall, before the date on which the deposit in pursuance of Section 54-A is made, order or continue execution in respect of any decree or order passed against the principal or any other landholder of an estate, etc. After the dismissal of these suits, the tenants came forward with applications Under Section 144 of the Civil Procedure Code for restitution of the amounts they had already paid into Court in pursuance of the order passed by the High Court in the writ appeals already referred to. Both the trial Court and the first Appellate Court ordered restitution in favour of the tenants. It is against the concurrent orders of the two Courts that the present civil miscellaneous second appeals have been filed by the landholder.

5. The first question that arises for consideration is whether the tenants are entitled to restitution within the meaning of Section 144 of the Civil Procedure Code. That section provides that where and in so far as a decree or order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied, but for such decree or order or such part thereof, as has been varied or reversed, and for this purpose, the Court may make any orders including orders for refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

6. Be it noted that Section 144 does not in terms apply to these cases. No decree was really granted by the Sivaganga Munsif's Court, nor was it altered or varied in appeal or second appeal. What happened was, the trial of the suits pending in the Sivaganga Munsif's Court was stayed by this High Court in certain writ appeal proceedings on condition that the tenants paid into the Sivaganga Munsif's Court, 1/3 of the amount claimed by the landholder by way of arrears of rent due by the tenants. I do not know how the High Court was persuaded to pass this order. The subject-matter of the suit before the Sivaganga Munsif's Court was not before this Court for adjudication, except in a remote sense; the validity of the finding of the Estates Abolition Tribunal that the village Thenkarai was an inam, within the meaning of the Estates Abolition Act was alone being canvassed in the writ appeals. The finding on this question did not have any direct impact upon the claim made by the inamdar in the Sivaganga Munsif 's Court for a decree for arrears of rent. It might have only an indirect effect upon the claim made in those suits. In fact, till the notification was made by the Government on 3rd August, 1966, in pursuance of the judgment of the Supreme Court, the inamdar was entitled to institute suits against his tenants for recovery of arrears of rent and obtain decrees therefor. There was no embargo placed by law upon the institution of suits by the inamdar for recovery of arrears of rent against his tenants, even assuming that the village was an inam village coming within the mischief of the Estates Abolition Act.

7. In these circumstances, there was absolutely no room for the application of Section 144 to the facts of this case. No order that was directly passed by the Munsif's Court had been set aside, varied or altered by the Supreme Court. In consequence of a declaration by the Supreme Court that the village was an inam village within the meaning of the Estates Abolition Act, the Government proceeded to notify the village. It was the notification by the Government that had the statutory effect of placing an embargo upon the suits previously filed by the landlord against the tenants for recovery of arrears of rent. No doubt, after the notification, the inamdar could not collect any rent from his tenants even for the period prior to the notification, because Under Section 55 of the Act, it is the manager appointed under the statute that would become entitled to recover arrears of rent and pay the same to the landholder after deducting therefrom the collection charges, jodi, peshkash, etc.

8. In those circumstances, both the Courts below were wrong to hold that Section 144 of the Civil Procedure Code in terms applied to the facts of this case. As has been held by a Division Bench of this Court in Chockalingam v. Krishna : AIR1964Mad404 Section 144 embodies the cardinal principle of law that acts of Courts should not be allowed to work any injury on the suitors and it is the clear duty of the Court to place the parties in the position which they would have occupied but for the erroneous order or decree which it had passed. The section is not exhaustive of the powers of the Court to order restitution and in suitable and appropriate cases, restitution can be and has been ordered in exercise of the Court's inherent jurisdiction Under Section 151 of the Civil Procedure Code. Where Section 144 does not apply and the inherent jurisdiction Under Section 151 is invoked, the Court will order restitution only if the ends of justice require it, or to prevent abuse of the process of the Court. This is a consideration, which is relevant while exercising jurisdiction Under Section 151 of the Civil Procedure Code but entirely irrelevant while exercising jurisdiction Under Section 144. If it is Under Section 151 that restitution is to be ordered in this case, it is necessary to find out whether the ends of justice require that the Court should order restitution.

9. In fact, Section 151 of the Civil Procedure Code prescribes that the Court shall have inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. If Section 144 were to apply, restitution would be automatic and there would be no room for equitable considerations which would govern restitution, Under Section 151 of the Civil Procedure Code.

10. Now, the question arises whether, in the circumstances of the case, the landholder should be directed to refund the amount which the tenants deposited as a condition precedent to their obtaining stay of trial of the suits in the District Munsif's Court. Sivaganga. While upon -this question, it is necessary to refer to the following circumstances;

11. The landholder instituted suits for recovery of rent due from the tenants for the Faslis from 1364 to 1 366, corresponding to the years 1954 to 1956. The landholder, in the plaint, claimed half a share in the net produce of the lands. The defendants, in the printed statements which they filed in the several suits, contended that they were liable to pay only 1/6 share out of the produce of the fields, that they had actually tendered the amounts to the inamdar's employees and asked them to issue receipts, but the latter, fearing that the issue of such receipts would bring them within the mischief of the Rent Reduction Act, refused to issue vouchers. The effect of this plea, which is incorporated in paragraph 11 of the printed written statements of the tenants, is that they were liable to pay at least 1/6 share of the gross produce, that they were prepared to tender the same to the plaintiff, but did not pay because the plaintiff's men (inamdar's men) refused to issue receipts therefor.

12. In view of these admissions of the tenants, the suits would have been decreed against them at least in respect of the 1/3 of the amount claimed in the plaint. This is probably the reason why in the writ appeals, the tenants agreed to deposit into Court 1/3 of the amount claimed by the inamdar in the suits. It would then follow that the amount deposited by the tenants into Court represented monies which were admittedly due by the tenants to the landholder for the Faslis 1364 to 1366. But for the stay obtained by the tenants from the High Court, the landholder would have proceeded to prosecute his suits against the tenants, obtained decrees, and realised the decretal amountsion execution long before the date of the Supreme Court judgment. As I have already pointed out, the notification by the Government of Tamil Nadu was made only on 3rd August, 1966, that is to say, 9 years after the landholder had instituted suits against the tenants in the Sivaganga District Munsif's Court. Till the date of the . notification, there was no impediment in the way of the landholder recovering the rent due from his tenants, the impediment arose only after 3rd August, 1966, the date of the notification. Even after the date of the notification, the rent arrears due by the tenants for the period from Faslis 1364 to 1366 were not wiped out under the Act. Probably, the rent could only be reduced under the Rent Reduction Act and the reduced rent could still be recovered by the landholder through the instrumentality of the manager appointed under the Estates Abolition Act. Having regard to these circumstances, it would be wholly inequitable to direct the landholder who has withdrawn the monies deposited by the tenants and who was entitled under the law to appropriate the same, on account of rent arrears, to re-deposit the same into Court at this distance of time. If I were to order restitution and allow the tenants to take back the amount, they do not stand to gain either, because they would have to pay back the same in proceedings under the Revenue Recovery Act, which the manager appointed under the Estate Abolition Act is entitled to set in motion against the tenants. It would, therefore, be a wholly needless ritual to direct the landholder to pay these amounts to the tenants with the right hand and take back the same from the tenants with the left. It will be an abuse of the process of the Court to do so and I am clear in my mind that the ends of justice will not be served by passing such an order of restitution.

13. In the circumstances, I set aside the concurrent orders of the Courts below and dismiss the restitution petitions filed by the respondents in these four appeals. In the circumstances of this case, I refuse to pass any order as to costs.


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