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Sri Parimala Ranganathaswami Devasthanam by Executive Officer, P.S. Gopalaswamy Vs. S. Muthuswami Iyer - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1962)2MLJ203
AppellantSri Parimala Ranganathaswami Devasthanam by Executive Officer, P.S. Gopalaswamy
RespondentS. Muthuswami Iyer
Cases ReferredVenkatachala Odayar v. Ramachandra Odayar
Excerpt:
- ganapatia pillai, j.1. the appeal is preferred by the executive officer of the parimala ranganathaswami devasthanam of tiruvilandur against the judgment and decree of the subordinate judge of mayuram in o.s. no. 38 of 1956 by which the suit brought by the temple for recovery of rs. 11,462-2-2 was dismissed without costs.2. the respondent muthuswami iyer took on lease 287 acres and 10 cents of nanja land and 108 acres and 21 cents of punja land situated in kalukkanimutham village and belonging to the plaintiff-devasthanam for five faslis from fasli 1360. according to the terms of the registered lease deed executed by the respondent he agreed to measure an annual quantity of 4,750 kalams of paddy, deliver 375 bundles of straw and pay cash rs. 600 as rent. there were many other terms in the.....
Judgment:

Ganapatia Pillai, J.

1. The appeal is preferred by the Executive Officer of the Parimala Ranganathaswami Devasthanam of Tiruvilandur against the judgment and decree of the Subordinate Judge of Mayuram in O.S. No. 38 of 1956 by which the suit brought by the temple for recovery of Rs. 11,462-2-2 was dismissed without costs.

2. The respondent Muthuswami Iyer took on lease 287 acres and 10 cents of nanja land and 108 acres and 21 cents of punja land situated in Kalukkanimutham village and belonging to the plaintiff-Devasthanam for five faslis from fasli 1360. According to the terms of the registered lease deed executed by the respondent he agreed to measure an annual quantity of 4,750 kalams of paddy, deliver 375 bundles of straw and pay cash Rs. 600 as rent. There were many other terms in the lease deed as regards allowance claimed by the lessee which it is not necessary for us to refer to at this stage. One of the principal terms of the lease was that the lessee should pay rent unconditionally that is without reference to rajeekam or deivikam. The claim in the plaint included arrears of rent as well as recovery of advances made to the lessee for tasakuli paddy, etc. The main defence taken in the written statement of the defendant was that by Act XIV of 1952 which came into force two years after the lease deed was executed the circumstances and conditions under which the tenant had agreed to pay a fixed rent had been altered and in a way the contract itself had been modified by the said Act. Relief was claimed from the liability to pay the rent stipulated in the lease deed on the basis that by the provisions of that Act no landlord was empowered to claim more than 60 per cent. of the gross produce as rent due. Besides this, relief was also claimed on the basis that in one of the years during the currency of the lease period, a large part of the crop on the demised land was destroyed by the cyclone which hit Tanjore District on 30th November, 1952. Other defences were also raised upon other points which it is not necessary for us at this stage to notice.

3. The learned Judge in the Court below took the view that, despite the terms of the contract between the parties evidenced by the lease deed, the lease deed was governed by the provisions of Act XIV of 1952 in regard to rent payable and he reduced the rent due by the respondent on the basis that it should conform to the provisions of the Act. He notionally fixed the gross produce calculating it on the basis that the rent agreed to be paid represented 70 per cent. of the gross produce. In this he relied on the usage of the Tanjore District prior to Act XIV of 1952, the landlord's share of the produce being either 70 per cent. or 75 per cent. of the gross produce. Having thus arrived notionally at the gross produce, the learned Judge worked out the landlord's share under the Act, by finding 60 per cent. of it and he held that that alone was payable as rent for the last three years of the lease period after the Act came into force. The learned Judge also held that the provisions of the Act did not apply for the first two years of the lease period faslis 1360 and 1361, and he allowed the claim of the temple for the arrear claimed for fasli 1361. In fact there was no arrear even according to the plaint for fasli 1360.

4. The first contention of Mr. Chinnayya Pillai, counsel for the appellant, is that the learned Judge was wrong in applying the provisions of Act XIV of 1952 to this case in the absence of any adjudication by the Conciliation Officer under Section 13 of Act XIV of 1952 as to the rent payable. His argument was that in the absence of any adjudication under Section 13 of Act XIV of 1952, the right or benefit conferred upon a cultivating tenant by Act XIV of 1952 should not have been granted by a civil Court and the learned Judge ought to have given a decree for the entire amount claimed as rent for the four faslis in the plaint. Mr. Thyagarajan, counsel appearing for the respondent contended basing his argument upon the provisions of Act XIV of 1952, that the substantive law as to the rate of rent which landlords could claim in the case of agricultural lands where Act XIV of 1952 applied was modified by the provisions of that Act and consequently even where the cultivating tenant entitled to the benefit conferred by the provisions of the Act had not applied to the Conciliation Officer under Section 13 and obtained a decision on the rent payable by him, the jurisdiction of the civil Court was not ousted and the learned Judge according to him, was right in giving effect to the provisions of Act XIV of 1952 for calculating arrears of rent claimed on the basis that Act XIV of 1952 applied to this case.

5. Mr. Thyagarajan developed his argument thus. Section 3 of Act XIV of 1952 according to him lays down the substantive law as to the rate of rent claimable by any landlord after the Act came into force. The relevant portion of it reads thus:

3. Act to override contract and other laws, etc.--The provisions of this Act:(a) shall have effect, notwithstanding anything to the contrary contained in any pre-existing law, custom, usage, agreement or decree or order of a Court.

Section 8 so far as applicable to this case is in the following terms:

Rent payable by tenants : Sub-clause (2).--Where the tenancy provides for any rent and not for the sharing of the actual produce raised, the tenant shall be bound to give to the landowner (in addition to the customary headloads of straw, where there is any) three-fifths (or such lower proportion, if any, as may have been agreed upon between the parties) of the normal gross produce of the land, after deducting all harvesting and poradi charges in the case of paddy and the like charges, if any in the case of any other crop.

In case the rent is to be paid in cash, the value of the three-fifths or of the lower proportion aforesaid shall be calculated at the price prevailing in the year immediately preceding the appropriate five year term.

The material part of Section 13 runs as follows:

Adjudication of disputes.--(1) Save as otherwise expressly provided in this Act, any dispute between a lan downer and a cultivating tenant or between either of them and a pannayal, including any matter which affects their mutual harmonious relationship in the cultivation of land, or any question which may arise as to the terms of a tenancy or the payment or non-payment of any rent or wages shall, on application by any party, be decided by the Conciliation Officer.

Where the tenancy provides for any rent and not for the sharing of the actual produce raised, an application may be made by a tenant under this sub-section for the remission of the whole or any portion of the rent payable by him, where there has been a total or partial failure of crops in any year due to causes beyond the control of the tenant; and the Conciliation Officer may, on such application, order such remission of rent as he may consider just in the circumstances of the case.

It is common ground before us that no application was made under Section 13 by the respondent either for remission contemplated in the sub-paragraph of paragraph (1) of Section 13 or for the adjudication of dispute between the parties as to what is the rent payable for faslis 1362, 1363 and 1364. Neither side disputes the right of the tenant under Section 13 to go to the Conciliation Officer for an adjudication as to what would be the rent payable in this case, that is to say, the dispute as to rent in this case was not contended by either side to fall outside the scope of disputes outlined in Section 13.

6. We shall now notice Section 14 of the Act, which is as follows:

Bar of jurisdiction of civil Courts.--No civil Court shall entertain any suit or other proceeding to set aside or modify any order, decision or award passed by any Revenue Court, a Conciliation Officer or other authority under this Act or in respect of any other matter falling within its or his scope.

7. The first head of argument of counsel for the respondent was that Section 14 enacted a specific bar or ouster of jurisdiction of the civil Court and therefore we would not be right in inferring any implied ouster of the jurisdiction of the civil Court by reason of this provision. We do not conceive of this section as capable of any such classification of ouster into express ouster or ouster by implication. Section 14 enacts a provision for ousting the jurisdiction of the civil Court in specific instances and the problem for our consideration is within what limits that ouster can operate. It was contended that if no application was made at all by either party to the Conciliation Officer under Section 13 there would be no order, decision or award passed by the Conciliation Officer or the Revenue Court and consequently Section 14 would not be attracted. In other words, the operation of Section 14 would be attracted according to counsel only where the parties had gone to the Conciliation Officer and obtained an order or award.

8. Another head of this argument was that the bar imposed by Section 14 upon the. jurisdiction of civil Courts should be limited to the case where the jurisdiction of the civil Court is invoked by a suit or other proceeding to set aside or modify the order. The argument is elaborated thus. Unless a plaint or proceeding was specifically instituted for the purpose of setting aside or modifying the order of the Revenue Court or the Conciliation Officer, Section 14 would not be attracted. In our opinion, none of these contentions can prevail. To accept the last argument of counsel for the respondent would mean that while a suit which includes a claim in contravention of an order passed by the Conciliation Officer would be barred by virtue of the provisions of Section 14, a claim for relief by a defendant on the basis of a right which runs counter to the purport of an order, award or decision of a Conciliation Officer would not be barred from the jurisdiction of a civil Court. We do not think Section 14 can be read that way. The implication of Section 14 really amounts to this. No decision, award or order passed by a Conciliation Officer or by a Revenue Court shall be subject to re-agitation by a civil Court in any suit or proceeding. The substance of the bar contained in Section 14 relates to a field where a special forum has been created by the enactment (Act XIV of 1952) with exclusive jurisdiction to decide a special set of claims. It is true Section 14 could have been worded far more comprehensively. But we should look to the substance of the bar of jurisdiction of civil Courts based upon the well-known principles of interpretation of statutes, rather than literally read the words of Section 14 to find out what is barred and what is not barred. We can visualise the anomalies that will flow if the contentions of counsel for the respondent were correct by giving one example, Suppose a suit is filed in a District Munsif's Court for recovery of rent by a landlord on a lease deed executed by a tenant on the ground that the rent was in arrear. We shall also suppose that the landlord refused to recognise the provisions of Act XIV of 1952 regarding limitation of rent recoverable to 60 per cent. of the gross produce. We shall assume that it was a case in which the tenant could have recourse to the provisions of Act XIV of 1952 because he was a cultivating tenant as defined in that Act. Let us suppose the defendant in that case filed a written statement claiming relief or remission in the rent payable by him based upon the provisions of the Act. Let us further suppose that after filing the written statement the defendant goes to the Conciliation Officer under Section 13 and asks for relief. There are two possibilities in this situation. (1) The Conciliation Officer may give his order or award before the civil Court is able to pass a decree. (2) The civil Court may pass a decree for the claim made in the plaint overruling the objection raised in the written statement before the Conciliation Officer is able to give his award. Here the result would be that the right which the Legislature so solemnly conferred upon the tenant by Act XIV of 1952 would be gran table to him depending upon whether the Revenue Court or the Conciliation Officer was able to dispose of the matter earlier than the civil Court was able to do. That is to say, the relief which the defendant is to get depends not upon any question of exclusive jurisdiction of the forum constituted under Act XIV of 1952 but solely on the speed with which the two competing forums dispose of the matter brought up before them. It is not necessary for us to say more except to point out that this would never be a satisfactory basis for deciding the question of binding nature of adjudications. An argument was attempted by the counsel for the respondent that it would be open to the civil Court to stay proceedings before the Conciliation Officer to achieve the result desired. We do not find any provision any where enabling the civil Court to stay proceedings pending before the Tribunal set up under Act XIV of 1952 which certainly is not subordinate to it. The result would be that there could be two conflicting decisions one by a forum specially constituted under Act XIV of 1952 and possibly a decree of the civil Court not agreeing with the award or order of the Conciliation Officer. Such an unhappy state of things would be the result if we accede to the arguments of the counsel for the respondent.

9. There is another principle of law which, in our opinion, will avert this unfortunate result. In Maxwell's well-known work 'Interpretation of Statutes ' at page 129 there is a discussion about the special rights or liabilities created by statutes which also create special forums for the adjudication of such rights and liabilities. Three categories of cases are envisaged there based upon the decision in R. v. County Court Judge of Essex (1887) L.R. 18 Q.B.D. 704, by Esher, M.R., and the following passage is extracted:

One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of case is, where the statute gives the rights to sue merely, but provides no particular form of remedy : there the party can only proceed by action at common law. But there is a third class, viz.; where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it...The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.

In our opinion, this case falls under the third category above mentioned. It is undisputed that the liability in the above passage must stand on the same footing as a right. What is granted by Act XIV of 1952 viewed from the tenant's standpoint is a right to pay rent at a rate fixed in the Act which in almost all cases is likely to be lower than the rate agreed to in the contract. We are aware there is a provision in the Act XIV of 1952 which enables the tenant to pay the agreed rent if it is lower than the rent fixed in the Act in which case Act XIV of 1952 confers no right on him. The right given to a tenant under the Act is thus a right to ask for a remission in the rent which, under the contract he bound himself to pay though correspondingly it would be a liability to give remission from the standpoint of the landlord. When such a right is claimed a dispute is raised between the landlord and the tenant. In this case it is common ground that the tenant did not agree to pay rent at the rate stipulated in the lease deed, but claimed the benefit of the Act. It appears from the evidence of the Executive Officer that the trustees themselves at the earliest stage thought that this claim was justified and issued a notice claiming rent based upon the provisions of the Act subject to getting sanction of the Hindu Religious Endowment Board. The amount so claimed was paid up by the tenant and the dispute had to be revived only when the Board unfortunately refused to give permission to the trustees to collect rent at the statutory rate. Thus there was a dispute in this case between the landlord and the tenant as to the rent payable and that dispute falls within Section 13 of the Act. In the written statement the respondent claimed a remission of rent based upon this right and also based upon the damage caused by the cyclone. On both these grounds, the respondent could have gone to the Conciliation Officer for a decision and his decision would have been binding upon both parties and not liable to be questioned in a civil Court. Our conclusion that the present case falls under the third category enumerated in the passage quoted above is thus based upon the right of the tenant to claim remission in the rent which he had agreed to pay based upon a statute which created a special forum for adjudication of that right where it was disputed. Exclusive jurisdiction is conferred upon the Conciliation Officer and the Revenue Court in respect of such a dispute and we are unable to find any reason why that jurisdiction should be limited to a case where an adjudication has actually occurred and not cover every case where an adjudication could have been obtained. If we limit the bar of jurisdiction of the civil Court to the former, namely, where an adjudication had been obtained and do not extend it to the latter category, namely, where an adjudication could have been obtained, the result would be, as we pointed out earlier, an unfortunate competition between two sets of Courts in giving decisions or orders and the parties being left in doubt as to which order has validity in a case where both the civil Court and the revenue Court have adjudicated upon the dispute. This matter has been dealt with by learned Judges of this Court in some decisions which we shall presently referred to.

10. Veeraswami, J., had to deal with this question in S.A. No. 1230 of 1959. The learned Judge after expressing the view that Section 14 enacted a bar to the jurisdiction of the civil Court in respect of matters which came within the purview of the Conciliation Officer under Section 13 of the Act expressed himself thus:

The normal rule is that the exclusion of the jurisdiction of a civil Court is not to be inferred unless such inclusion is necessarily implied in the context and circumstances of the particular statutory provision. It is equally clear that where a statute creates a right or obligation, which does not exist in common law, and provides for a remedy in respect thereof it is that remedy that has got to be resorted to in the manner and before the forum provided by the special Act. Viewing the provisions of Sections 13 and 14 in the background of those principles, it seems to me that although Sections 3 and 8 (5) give to the provisions of Sub-sections (1) to (4) of Section 8 an effect overriding a contract of tenancy, when a dispute arises, in respect of the payment or non-payment of any rent, it has to be adjudicated upon by the Conciliation Officer on an application for the purpose. This is clearly what Section 13(1) provides for, namely, a special forum for deciding that question. This and the provision for an appeal to the Revenue Court from the orders of the Conciliation Officer, taken with Section 14, to my mind, point to a bar of the jurisdiction of the civil Court to entertain and decide a dispute regarding the payment or non-payment of any rent which would comprehend the terms of a contract of tenancy as relevant to an application of the provisions of Section 8.

We are in respectful agreement with these observations of the learned Judge.

11. A Bench of this Court consisting of Jagadisan and Kailasam, JJ., have made certain apposite observations in Venkatachala Odayar v. Ramachandra Odayar : AIR1961Mad423 , though the point that actually arose for consideration before the Bench was different. In dealing with Sections 6 of the Madras Cultivating Tenants Protection Act, which provides for a bar of jurisdiction of the civil Courts in substance similar to the bar enacted by Section 13 of the Act we are concerned with, the learned Judges referred to the well-settled rule of law that where a statute creates new rights and establishes a special machinery for working out those rights by constituting a Tribunal or special Court that tribunal or Court becomes vested with exclusive jurisdiction to decide the matters entrusted to it by the statute, and thereby excludes the jurisdiction of the civil Courts as well. All this discussion is on the basis that the respondent is a cultivating tenant entitled to the protection and the benefits of the Act. But it is nowhere conceded in the pleadings or in the arguments or established by the evidence that the respondent is a cultivating tenant entitled to the benefits of the Act. We see therefore no force in the argument of counsel for the respondent that the Subordinate Judge in this case had jurisdiction to give remission based upon the provisions of the Act.

12. The next argument of counsel for the respondent related to frustration. His contention was that the provisions of the Transfer of Property Act did not apply to agricultural leases and consequently if the law of contract is to be applied we should hold that the contract in this case became frustrated and impossible of performance. He put this argument under two heads. The first was that when the contract was entered into in 1950, there was no prohibition upon the lessee--sub-leasing the lands and collecting whatever rent he could from his sub-tenants but this was restricted after Act XIV of 1952 was enacted and consequently it became impossible to perform the contract in the manner contemplated by the parties. The second head of the argument was that, by reason of destruction of property during the cyclone in 1952, the contract became impossible of performance. This question has been dealt with by a Bench of this Court consisting of Rajamannar, C.J., and Ramachandra Iyer, J., (as he then was) in A.S. No. 1172 of 1953. They have rejected this contention on the ground that in the case of unconditional leases where the undertaking to pay rent is absolute, neither the introduction of the Act XIV of 1952 nor any destruction of crops by any tempest or cyclone would render the contract impossible of performance. It is unnecessary to elaborate the point further because we are in respectful agreement with the learned Judges that there is no scope for application of the doctrine of frustration in cases, where the lease deed contains unconditional undertaking to pay rent. Neither could the contract be said to be impossible of performance. Nor could it be said that the destruction of the crop in a particular year on a portion of a land demised amounted to a destruction of the demised property itself. The only reason we need add to the reasons given by the learned Judges in A.S. No. 1172 of 1953 is that, at the time when the contract was entered into, it was open to the lessee to enjoy all the properties himself by pannai cultivation in which case the bringing of Act XIV of 1952 into the statute book would have made no difference to the performance of the obligations undertaken by the lessee. We therefore overrule this argument also.

13. Another argument attempted by counsel for the respondent was that what was leased to the tenant or lessee in this case is only the melwaram which, according to him, represented the right of the landlord to collect 70 per cent. of the gross produce and since this right was taken away by Act XIV of 1952, the contract became impossible of performance. We read the lease deed from beginning to end and though in more than one place the term melwaram is used, it is really used in the sense of indicating the rent payable to the landlord. What is demised under the lease are the lands themselves and not any interest in the lands. This is not a case where lands are governed by the Estates Land Act. The lands are ryotwari lands which belonged in both warams to the temple. Consequently there is no scope for the contention that anything which was demised or leased under the deed was taken away by the provisions of Act XIV of 1952.

14. We now go to the other points taken by counsel for the respondent. The first relates to the claim for maramath work done during faslis 1362, 1363 and 1364 by the lessee which the learned Judge in the Court below refused to allow as a deduction. The provision in the lease deed is that the lessee is entitled to carry out maramath work up to a ceiling limit of 200 kalams of paddy per annum after getting the approval of the landlord by submitting estimates. It is common ground that in fasli 1361 the respondent (lessee) was allowed remission of 200 kalams on this ground, namely, that maramath had been carried out to this extent. The claim of the lessee for a similar allowance for the remaining three faslis was raised in the written statement in paragraph 11. No specific issue was however raised in the lower Court on this point. Nor has the learned Judge dealt with this point specifically. Possibly (we can only surmise) the learned Judges thought that having allowed remission to the tenant on the basis of the provisions of the Act by which the responsibility to carry out maramath lay upon the tenant, the claim for deduction on account of maramath carried out would not arise. From the evidence of D.W. 1 it is seen that maramath was done for faslis 1362, 1363 and 1364. Read with the allegation in paragraph 11 of the written statement we can interpret this evidence as meaning that maramath was done upto the limit provided in the lease deed. There was no evidence contra. It thus follows that the lessee is entitled to the allowance of 200 kalams of paddy for each of the faslis 1362, 1363 and 1364 under this head according to the terms. of the lease deed.

15. Another point raised by Mr. Thyagarajan, counsel for the respondent, related to rebate allowed by the lower Court on account of a portion of the punja land demised not being delivered to the possession of the tenant. The extent of the portion thus not delivered was 7 mahs. The lower Court granted a rebate of Rs. 14 in the cash rent as the proportionate part deductible. It is pointed out by counsel for the respondent that there is evidence to show that the plaintiff-temple had leased out these 7 mahs of land to third parties and collected rent during faslis 1362, 1363 and 1364 amounting to Rs. 30 , Rs. 15 and 35 Kalams of paddy respectively (vide P.W. 2). Clearly the learned Judge was in error in having allowed a rebate of only Rs. 14 in the rent due for the 7 mahs of punja when he had evidence before him showing that a larger sum was collected in these three faslis. Rebate will therefore be given to the respondent for these 7 mahs of punja at the rate, of Rs. 30 for fasli 1362 Rs. 15 for fasli 1363 and the value of 35 kalams of paddy at Rs. 6-4-0 per kalam for fasli 1364.

16. The last question raised by Mr. Thyagarajan, related to interest on the arrears claimed in the plaint. The provision in the lease deed for payment of interest is to the effect that interest is payable at 5 1/2 per cent. per annum from the date of demand in writing after a default occurs. The passage in the lease deed upon which we rely is this:

In case I commit default the temple authorities shall inform me in writing. If in any fasli the paddy, cash, etc., payable to you fall in arrears, I agree to your taking action by proceeding against me personally and against the properties secured for die recovery of the value of the arrears of paddy due at the prevailing market rate together with interest thereon at 51/2 per cent per annum.

We do not find any evidence to show that there was intimation by the temple of the occurring of a default in this case. On the other hand, the notice issued by the trustees called for payment of 90 per cent. of the rent fixed in the lease deed presumably acting upon the provisions of Act XIV of 1952 and this demand for payment of 90 percent. of the rent was complied with by the respondent and the present suit is only for the balance which was not paid. We therefore see no reason to direct payment of interest on arrears of rent and consequently no portion of the arrear should carry interest prior to the date of plaint. We reverse the finding of the' learned Judge in the Court below that the plaintiff is entitled to interest before the date of plaint and instead we award interest for the sum due to the plaintiff in accordance with our findings only from the date of plaint at 51/2 per cent. per annum till date of payment.

17. The appeal is therefore allowed and the decree of the lower Court dismissing the suit is set aside and there will be a decree in favour of the plaintiff for the amount due in accordance with our findings calculating the value of paddy at Rs. 6-4-0 per kalam for all the faslis in question. The respondent will pay proportionate costs in the lower Court. But in the circumstances of this case, we do not allow any costs in the appeal except half the Court-fee paid on the appeal memorandum.


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