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Appai Goundan Vs. Perichi Gounder - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1958)2MLJ99
AppellantAppai Goundan
RespondentPerichi Gounder
Cases ReferredGopalaswami Pillai v. Kuppuswami Chettiar
Excerpt:
- .....sayeed, j.1. c.r. p. no. 204 of 1957. - this civil revision petition is against the order of the learned revenue divisional officer, coimbatore, in e.p. no. 7 of 1956 in o.p. no. 41 of 1955.2. the petitioner is the landlord, and the respondent in this petition is the tenant. for the fasli year 1954-1955 the respondent entered into a tenancy agreement in respect of the land belonging to the petitioner for agricultural purpose, agreeing to pay a sum of rs. 500 in advance by way of rent towards the tenancy. this amount was duly paid and on the termination of the year of the lease, the respondent did not deliver possession of the land to the petitioner but he continued to be in occupation. he did not pay any rent for this year, viz., 1955-56. without paying the rent for that fasli year he.....
Judgment:
ORDER

Basheer Ahmed Sayeed, J.

1. C.R. P. No. 204 of 1957. - This Civil Revision Petition is against the order of the learned Revenue Divisional Officer, Coimbatore, in E.P. No. 7 of 1956 in O.P. No. 41 of 1955.

2. The petitioner is the landlord, and the respondent in this petition is the tenant. For the fasli year 1954-1955 the respondent entered into a tenancy agreement in respect of the land belonging to the petitioner for agricultural purpose, agreeing to pay a sum of Rs. 500 in advance by way of rent towards the tenancy. This amount was duly paid and on the termination of the year of the lease, the respondent did not deliver possession of the land to the petitioner but he continued to be in occupation. He did not pay any rent for this year, viz., 1955-56. Without paying the rent for that fasli year he had also constructed a salai on the land leased to him by the petitioner. According to the original agreement under which the respondent held over the land in his occupation, the stipulated rent of Rs. 500 was payable in advance. Since this rent was not paid in December, the petitioner filed O.P. No. 41 of 1955 for eviction. This original petition however, was compromised by a joint memo, filed by both the parties and marked as Exhibit A-1.

3. In that memo, it was agreed that the respondent will deliver peaceful possession of the demised land on the 15th July, 1956, without raising crops and pay his share of electricity charges. The petitioner agreed on delivery of possession of the demised land by the respondentto remit the lease amount of Rs. 500 for 1955-56. The petitioner further agreed to pay the respondent a sum of Rs. 125 on 15th July, 1956, for the loss incurred by the respondent in constructing the walls and flooring of the salai. There was also a further agreement by the petitioner that he should allow the respondent to remove the tiled roof of the salai constructed by the respondent without interfering with the walls. Clause 5 of the agreement was to the effect that, in default of delivery of possession, the respondent will not be entitled to any of the above mentioned benefits. On the part of the petitioner it was agreed further that if the petitioner committed default in paying the sum of Rs. 125 on or before 15th July, 1956, the respondent will be at liberty to re-enter the demised land. This compromise was recorded and the original petition was closed. According to the order under revision after the filing of this joint memo., an order was passed on 2nd March, 1956, by the Revenue Divisional Officer in terms of the agreement.

4. Subsequent to this on 30th July, 1956, the petitioner filed a petition before the learned Revenue Divisional Officer alleging that the conditions of the agreement were not acted upon by the respondent, that delivery of possession was not given and so he asked for eviction. The Revenue Divisional Officer thereupon passed an order of eviction on 8th August, 1956. This order is said to be an ex parte order passed on the petition of the petitioner.

5. The respondent thereupon filed a petition requesting the learned Revenue Divisional Officer to stay the execution of that eviction order on the ground that the petitioner had not fulfilled the conditions and also that the order of eviction should be set aside. This application was filed on 16th August, 1956. But no separate number appears to have been given to the application of the respondent wherein the older now under revision has been passed. The order under revision is to the effect that the petitioner did not pay the amount agreed to be paid by him before the first of Adi, that the respondent had done what he was called upon to do under the terms of the agreement, and that the allegation of the respondent that he had vacated the ' land was true and stood proved. In consequence the learned Revenue Divisional Officer revoked the order of eviction passed already in favour of the petitioner and withdrew the same, while dismissing the original application of the petitioner for eviction.

6. K.S. Naidu, appearing on behalf of the petitioner contends in the first place that even though the order, dated 8th August, 1956 was an ex parte order pas ed against the respondent in his application E.P. No. 7 of 1956, there was no jurisdiction for the Revenue Divisional Officer to recall that order and revoke the same and dismiss the E.P. when once he had passed the order of eviction. The Revenue Divisional Officer's powers are defined by the provisions of the Act, Act XXV of 1955, and also the Rules framed thereunder. Rule 8 of the Madras Cultivating Tenants Protection Rules framed under the Act, provides that the proceedings of the Revenue Divisional Officer shall be summary and shall be governed as far as possible by the provisions of the Civil Procedure Code having regard to (a) the issue of service of summons (b) and examination of paries and witnesses, and (c) the production of documents. There is no further power vested in the Revenue Divisional Officer under this Rule to set aside any ex parte order passed by him. It is also clear that the Rules of the Civil Procedure Code do not apply to the proceedings before the Revenue Divisional Officer in extenso. Unless there is a special provision in the Act or under the Rules vestirlg the Revenue Divisional Officer with such power as to set aside ex parte orders, it cannot be contended that the Revenue Divisional Officer has jurisdiction to set aside, any ex parte order, whether it be wrong or right. The learned Counsel for the respondent, however, contended that the effect of the order under revision in this Civil Revision Petition is that the Revenue Divisional Officer having passed an order without jurisdiction originally, viz., in having ordered eviction of the respondent, was only rectifying the situation by recalling the order and dismissing the petition. I do not think that this position is tenable. If the Revenue Divisional Officer had originally passed an order without jurisdiction, which however is not correct in the present contest, the remedy open to the respondent was to seek revision of that order before the superior Court. The respondent not having taken any steps in that direction, it is not open to the respondent to contend now that the action of the Revenue Divisional Officer in having recalled the original order of eviction, and dismissing it, is competent and is in the exercise of his jurisdiction. It has to be observed that the Revenue Divisional Officer is not a Court of any inherent jurisdiction in order to enable it to have power to set aside ex parte orders passed by it. If the contention of the learned Counsel for the respondent is to be upheld, if one order is passed without jurisdiction and if it is open to the Revenue Divisional Officer to have it recalled and set aside without of course having any jurisdiction to do so, then such process can be repeated ad nauseum. This could never have been the intention of the Legislature, especially when power is given to the Revenue Divisional Officer to deal with matters only in a summary fashion and within the four corners of the Act and under the Rules framed thereunder.

7. Mr. Naidu, appearing for the petitioner has invited my attention to a decision of Ramaswami Gounder, J., in Thirumalal Naidu v. Challapathi Naidu (1957) 1 M.L.J. 349. The learned Judge has held in very similar circumstances that the Revenue Divisional Officer has no jurisdiction to set aside an ex parte order passed by him under the provisions of Act XXV of 1955. I entirely agree with the reasonings found in this short judgment of the learned Judge. The learned Judge has also referred in his judgment to the judgments of two other learned Judges of this Court, namely Balakrishna Ayyar, J., in W.P. No. 560 of 1954, and Rajagopala Ayyangar, J., in W.P. No. 520 of 1954. The Rules which had to be considered by Rajagopala Ayyangar in W.P. No. 520 of 1954 seem to be more or less similar in effect and scope to the Rule No. 8 framed under the provisions of Act XXV of 1955 and the ratio decidendi of the decision in Gopalaswami Pillai v. Kuppuswami Chettiar (1956) 1 M.L.J.46, seem to be fully applicable to the facts of the present case before me. I am, therefore, of the view, on a consideration of the facts and citations made by the learned Counsel for the petitioner, that the order of the learned Revenue Divisional Officer under revision could not be sustained and it has to be set aside.

8. Learned Counsel for the respondent, however, urged that in view of the fact that the order of the learned Revenue Divisional Officer under revision has the effect of setting aside a previous order passed by him, which was ex parte and which was passed in O.P. No. 41 of 1955, where the compromise entered into between the parties had been recorded, this Court would not be justified in setting aside the order of the Revenue Divisional Officer under revision. I do not agree with the contention of the learned Counsel for the respondent. I have already dealt with this aspect in the earlier part of this judgment. When the compromise memo, was entered into between the parties and was filed, in Court, there was an order in terms of that compromise, and that, order had to be given effect to and in seeking to give effect to that order at the instance of the petitioner, the learned Revenue Divisional Officer passed the order for eviction ex parte. It cannot be said that the Revenue Divisional Officer had no jurisdiction to pass that order of eviction, even though it might be ex parte. I do not see any force in the contention of the learned Counsel for the respondent to the contrary.

9. This petition is, therefore allowed. But there will be no order as to costs.

10. C.R.P. No. 570 0f 1957. - This petition arises out of an order passed by the same Revenue Divisional Officer in a subsequent application filed by the petitioner in G.R.P.No. 204 of 1957 against the same respondent. The tenant is the petitioner in this Civil Revision Petition. This order under revision is one directing the petitioner to pay a sum of Rs. 500 to the respondent-landlord representing the lease amount for the year 1955-56. The contentions of the tenant that he had paid a sum of Rs. 200 as advance, and had also erected a salai at a cost of Rs. 750 and that amount had to be adjusted towards the rent payable to the landlord were all rejected by the learned Revenue Divisional Officer. Apart from this, the judgment I have just now pronounced in C.R.P. No. 204 of 1957 which had the effect of upholding the order of eviction makes the petition out of which the present Civil Revision Petition arises quite unnecessary, and, therefore, I do not think it is necessary for me to pass any orders in this revision petition. This Civil Revision Petition will be allowed and the parties will be entitled to work out their remedies in regard to the claim for rent for the subsequent years. There will be no order as to costs.


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