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R. Singaravelu Pillai Vs. S.B. Subramania Gurukkal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ298
AppellantR. Singaravelu Pillai
RespondentS.B. Subramania Gurukkal and anr.
Cases ReferredChinnamarakathiyan v. Ayyavao
Excerpt:
- .....the petition is allowed.the present revision is against the order, dated 8th december, 1981.2. the learned counsel for the petitioner contends that the order of the revenue court suffers from many infirmities. the learned counsel challenges the order, dated 24th november, 1.981, on various grounds. in support of that, he placed reliance on a judgment reported in chimnamarakathiyan ayyanjoo : [1982]2scr146 , the contention of the learned counsel for the petitioner is that even though the petitioner did not appear before court, it is the duty of the court to go into the facts and find out how the arrears were calculated and after applying its mind, preliminary order should be passed. while passing such orders, the revenue court must take into account the relative hardships that may be.....
Judgment:

K. Venkataswami, J.

1. The cultivating tenant is the petitioner in this civil revision petition. It appears that the first respondent landlord filed an application for eviction of the petitioner on the ground of wilful default in payment of rents, on 1st September, 1981. Notice of the application was served on the petitioner heroin on 4th September, 1981, giving 29th September, 1981 as the date of hearing. On 29th September, 1981, there was no appearance on behalf of the petitioner tenant. Subsequently, the matter was adjourned from time to time and it appears from the records that the petitioner herein appeared on 16th October, 1981, and sought for time to engage a counsel. The matter was adjourned to 13th November, 1981, finally. Again, it was adjourned to 17th November, 1981. When the Revenue Court found that the petitioner had neither filed vakalat nor appeared before Court, the petitioner was set ex parte on 17th November, 1981, and the matter was adjourned for filing of proof of affidavit to 20th November, 1981. On 20th November, 1981, proof of affidavit was filed and again the petitioner was called absent and a preliminary order was passed on 24th November, 1981. In the preliminary order, it was found that, the petitioner was liable to pay the arrears of rent as claimed by the landlord, the first respondent herein, and the preliminary order directed the petitioner to deposit the arrears on or before 7th 'December, 1981. In the event of default, an order of eviction was directed to follow. there was a further direction to call the application on 8th December, 1981. In the meanwhile it appears that the petitioner preferred I.A. No. 128 of 1981 to set aside the preliminary order, dated 24th November, 1981. In that application, a conditional order was passed directing the petitioner to deposit 50 percent, of the arrears. Since that was not complied with by the petitioner, that application, was rejected on 5th February, 1982. As stated earlier, following the preliminary order, on 8th December, 1981, the matter was taken up and the Revenue Court passed the following Order:

This is a petition filed under Section 3(4) (a) of Act (XXV of 1955) for evicting the respondent from the petitioner's lands for non-payment of lease rent for Fasli 1388, 1389 and 1390. On 24th November, 1981, a Preliminary Order was passed directing the respondent to deposit a sum of Rs. 9,730.20 together with costs of Rs. 10 on or before 7th December, 1981. Respondent was absent. No payment or deposit was also made. In the circumstances the respondent has rendered himself liable to be evicted from the petitioner's lands. He will stand evicted from the petitioner's lands. He shall hand over peaceful possession of the lands to the petitioner. The petition is allowed.

The present revision is against the Order, dated 8th December, 1981.

2. The learned Counsel for the petitioner contends that the order of the Revenue Court suffers from many infirmities. The learned Counsel challenges the order, dated 24th November, 1.981, on various grounds. In support of that, he placed reliance on a judgment reported in Chimnamarakathiyan Ayyanjoo : [1982]2SCR146 , The contention of the learned Counsel for the petitioner is that even though the petitioner did not appear before Court, it is the duty of the Court to go into the facts and find out how the arrears were calculated and after applying its mind, preliminary order should be passed. While passing such orders, the Revenue Court must take into account the relative hardships that may be caused to the tenant in directing him to deposit the arrears. In reply, the learned Counsel for the first respondent took out a preliminary objection contending that when the order, dated 24th November, 1981, has been allowed to become final, it is no longer open to the counsel for the petitioner to challenge the legality of that order in as much as the present revision is filed against the order of the Revenue Court dated 8th December, 1981, which is a separate order. In support of that, the learned Counsel for the first respondent relied on a Division Bench judgment of this Court reported in Kuppanna Cheltiar v. Ramachandran. In paragraph 23 the Division Bench has observed as follows:

In this case, from what we have pointed out already, it will be seen that the Authorised Officer passed the order under Section 3(4) (b) of the Act on the failure of the tenant to deposit the rent within the time stipulated by the earlier order. From this point of view, the order of the Authorised Officer is unexceptionable. As a matter of fact, the petitioners did not make any complaint against the order of the Authorised Officer on the merits. So long a the order of the Authorised Officer is unexceptionable and is not vitiated by any one of the factors enumerated in Section 115 of the Code of Civil Procedure, this Court will have no jurisdiction to interfere with that order.

In view of this and without going into the merits or the legality of the order, dated 24th November, 1981, I agree with the contention of the learned Counsel for the first respondent, that it is not open to the petitioner to challenge order, dated 24th November, 1981.

3. So far as the order, dated 8th December, 1981, against which the present revision petition is fifed, it is based on the preliminary order, whereunder the petitioner was given time to pay the arrears. Thereafter, there is nothing for the Revenue Court to consider, as Section 3(4) (b) of the Tamil Nadu Cultivating Tenants Protection Act, the relevant portion of which is set out hereunder, is as follows:

If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub-section, (3) (by. If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order of eviction.

In the light of the above extracted provision, the order of the Revenue Court cannot be said to illegal calling for interference under Section 115, of the Code of Civil Procedure.

4. It is argued by the learned Counsel for the petitioner that once the preliminary order is illegal in the light of the judgment of the Supreme Court in Chinnamarakathiyan v. Ayyavao : (1981)1MLJ136 , the final order dated 8th December, 1981, cannot stand. I am unable to agree. Assuming without conceding that the order, dated 24th November, 1981, is not in accordance with the principles laid down by the Supreme Court in the above judgment, it will be at the most an illegal one and it cannot be considered to be non est in law. Unless that order is set aside in the manner known to law, the order now challenged in the present revision petition cannot be said to be in any manner illegal. In the circumstances, there are no merits in the. Civil Revision Petition and consequently, it is dismissed. But there will be no order as to costs.


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