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Palaniswamy Gurukkal by Power-of-attorney Agent Sivaprakasa Krishnaswamy Gurukkal Vs. Kandappa Gounder - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1967)2MLJ438
AppellantPalaniswamy Gurukkal by Power-of-attorney Agent Sivaprakasa Krishnaswamy Gurukkal
RespondentKandappa Gounder
Cases ReferredIn Vasudeva Udpa v. Krishna Udpa
Excerpt:
- .....assigns may, at any time before trial, pay or tender to the landlord, or pay into court, all the rent in arrears together with costs; thereupon all further proceedings are stayed, and the tenant or his assigns hold the demised lands under the lease, without any new lease.it appears from the footnote in respect of the above statement of law that in order that an assignee may obtain relief against an order in ejectment, it is necessary that he should pay or tender not only the amount due from him, but also the amount of rent due from the original lessee, his assignor, including arrears outside the period of limitation. barratt v. richardson and cresswell l.r. (1930) 1 k.b. 686, has been cited as the authority for the position.6. in the dhurumtolla properties limited v. dhunbai peroshaw.....
Judgment:
ORDER

R. Sadasivam, J.

1. This Civil Revision Petition has come before us as Alagiriswamy, J., who heard it in the first instance, found some difficulty in agreeing with the decision of Kailasam, J. in Nallathambi v. Nagarathnaswamy Devasthanam (1965) 2 M.L.J. 386 : I.L.R. (1965) 2 Mad, particularly in view of the decision of the Privey Council in Hansraj Gupta v. Official Liquidator of Dehra Dun etc. Company I.L.R. (1932) All. 1067. The Civil Revision Petition raises an important question, whether a revenue Court has jurisdiction in an application for eviction by a landlord to direct a cultivating tenant under Section 3(4)(b) of the Madras Cultivating Tenants Protection Act, 1055, to deposit the entire arrears of rent, irrespective of the fact that part of it may be time-barred and cannot be recovered in a suit for arrears of rent in a civil Court.

2. In the decision in Nallathambi v. Nagarathnaswamy Devasthanam (1965) 2 M.L.J. 386; I.L.R. (1965) Mad. 225, Kailasam, J., has referred to the several clauses of Section 3 of the Madras Cultivating Tenants Protection Act, 1955, hereinafter referred to as the Act, and found that in the absence of any provision restricting the arrears of rent to three years prior to the date of the application, there is no justification for holding that the arrears of rent which the revenue Court could direct the tenant to pay or deposit shall be confined to the said period.

3. The scheme of Section 3 of the Act, as revealed from the several clauses found therein, also furnishes some guidance to answer the question involved in this civil revision petition. Sub-section (1) of sect ion 3 of the Act provides that 'no cultivating tenant shall be evicted from his holding or any part thereof by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise,' except in accordance with the provisions of the succeeding sub-sections. Subsection (2) of the Section 3 of the Act provides that, subject to the next succeeding sub-section, namely, Sub-section (3), cultivating tenants falling under that subsection cannot claim the exemption from eviction conferred on cultivating tenants under Section 3(1) of the Act. One of such cultivating tenants is one who defaults to pay rent prior to, or after the commencement of the Act. In the areas where the Tanjore Tenants and Pannaiyal Protection Act, 1952, was in force prior to the coming into force of the Madras Cultivating Tenants Protection (Amendment) Act, 1956, a tenant if in arrears at the commencement of the Act, should pay such rent within six weeks after such commencement and in respect of subsequent rent, he should pay rent within a month after such rent becomes due. Cultivating tenants in other areas of the State of Madras, such as the one in the present case, should pay the arrears of rent accrued subsequent to 31st March, 1954, within a month after the commencement of the Act and the rent payable after the commencement of the Act within a month after such rent becomes due. Sub-section (3) of Section 3 of the Act enables a cultivating tenant to make a deposit of the rent accrued due subsequent to 31st March, 1954, within a month after the commencement of the Act and the rent accrued due after the commencement of the Act within a month after the date on which the rent accrued due. This is in accordance with the terms of the earlier clauses. Thus having regard to sub-sections (2) and (3) of Section 3 of the Act, a cultivating tenant shall be liable to be evicted if he failed to pay the rent accrued due after the commencement of the Act within a month after the date on which the rent accrued due.

4. Logically Sub-section (4) of Section 3 provides a remedy for the landlord to file an application for eviction in the Revenue Court against such cultivating tenant who defaults to pay rent. Clause (b) of Sub-section (4) of Section 3 of the Act enables the Revenue Divisional Officer in the exercise of his judicial discretion to allow a cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under the Act inclusive of such costs as he may direct, and if the cultivating tenant deposits the same as directed, he shall be deemed to have paid the rent under Sub-section (3)(b) of Section 3 of the Act. Thus Sub-section (4)(b) of Section 3 of the Act gives jurisdiction to the Revenue Divisional Officer to afford relief to a cultivating tenant, who not only failed to pay rent in time, but also failed to make the deposit as provided Under Sub-section (3) of Section 3 of the Act and thereby precluded himself from claiming exemption from eviction under Sub-section (1) of Section 3 of the Act. This is analogous to the right of civil Courts to relieve a tenant against forfeiture clauses of lease deeds, whether under Section 114 of the Transfer of Property Act, or under the general law.

5. It is clear from paragraph 2068 at page 950 of Woodfall on Landlord and Tenant' (26th Edition, Vol. 1) that in the case of the breach of the covenant to pay rent, equitable relief was granted from early times, the statute 4 Geo. 2, C.28, only regulating the made of granting the relief and not originating it. The Supreme Court of Judicature (Consolidation) Act, 1925, Section 46 (replacing the Common Law Procedure Act, 1860, Section 1) allows a Court or a judge to give relief in a summary manner and subject to the same terms and conditions in all respects as to payment of rent, costs and otherwise as could formerly have been enforced by the Court of Chancery. (See page 970 of the same Book, para. 2104) It is stated in paragraph 1409 at page 681 of Halsbury's Laws of England (Third Edition), Volume 23, that

if the landlord has brought an action to recover possession, the tenant or his assigns may, at any time before trial, pay or tender to the landlord, or pay into Court, all the rent in arrears together with costs; thereupon all further proceedings are stayed, and the tenant or his assigns hold the demised lands under the lease, without any new lease.

It appears from the footnote in respect of the above statement of law that in order that an assignee may obtain relief against an order in ejectment, it is necessary that he should pay or tender not only the amount due from him, but also the amount of rent due from the original lessee, his assignor, including arrears outside the period of limitation. Barratt v. Richardson and Cresswell L.R. (1930) 1 K.B. 686, has been cited as the authority for the position.

6. In the Dhurumtolla Properties Limited v. Dhunbai Peroshaw Sorabjee I.L.R. 58 Cal. 311, it has been held that Section 114 of the Transfer of Property Act is based on principles laid down by the Chancery Courts in England and that the only difference is that, under the English Law, a tenant is allowed the same right to relief after a judgment for recovery of land on the ground of forfeiture for non-payment of rent, as if the judgment had been given after trial, while under the Indian law relief from forfeiture cannot be claimed after the order for ejectment has been made. Section 114 of the Transfer of Property Act provides for relief against forfeiture for non-payment of rent. But such relief was given in India even before the Transfer of Property Act. It is given in respect of agricultural holdings to which the Transfer of Property Act is not applicable. It is clear from page 754 of Mulla's Transfer of Property Act (5th edition) that the lessee is put on terms to make full compensation to the lessor, i.e., he must pay all rent in arrears with interest and full costs of the lessor's suit. It is pointed out by the learned Author that the Madras High Court has held that the lessee must pay arrears of rent even though they are time-barred. In Vasudeva Udpa v. Krishna Udpa : AIR1921Mad418 , it has been held that a tenant can be relieved against forfeiture of lease incurred by non-payment of rent only on payment of all arrears of rent, including such as may be barred by limitation. In Vamana Pai v. Venkatu Naika (1936) M.W.N. 83, Venkataramana Rao, J., has held that the words 'rent in arrears' in Section 114 of the Transfer of Property Act are wide enough to include even the rent which the lessor may be unable to recover by reason of the bar of limitation. He has also pointed out that before forfeiture can be relieved against 'rent in arrear' must be paid. In Vellathi v. Thayammal A.I.R. 1958 Mad. 232, it has been held by a Bench of this Court that the Court has power to give relief against forfeiture independently of the provisions of Section 114 of the Transfer of Property Act and that therefore, though an agricultural lease does not come within the purview of the section, a Court in the exercise of its powers, if justice, equity and good conscience requires it, will relieve the tenant against forfeiture for non-payment of rent on such conditions as may appear equitable on the facts of each particular case. In that particular case, the Court granted relief against forfeiture by directing the tenant to pay time-barred arrears of rent, though the same was not claimed in the suit. It was held that such direction was fully warranted by considerations of justice, equity and good conscience under which the relief against forfeiture was granted. In Narasingh Das v. Parmeshwari Das : AIR1962All65 , a Bench of the Allahabad High Court referred to the principles of the above decisions in support of the decision in that case.

7. Thus, in exercising the discretion under Section 3(4)(b) of the Act, the Revenue Court has jurisdiction to direct a cultivating tenant to deposit the entire arrears of rent irrespective of the fact that part of it is time-barred, in order to give relief to the cultivating tenant from being evicted from his holding.

8. The Privy Council decision in Hansraj Gupta v. Official Liquidators of Dehra Dun etc. Company I.L.R. (1932) All. 1067, relied on by Alagiriswami, J., in his order of reference is clearly distinguishable and it can hardly furnish any guidance to answer the question that arises for consideration in this civil revision petition. It was held in that decision that the Liquidator of a company could not by making an application under Section 186 of the Companies Act get over the period of limitation, which would apply if he were to bring a regular suit in the Company's name to recover moneys from a contributory. The principle of the decision is that a time-barred debt could not be enforced by a summary order under Section 186 of the Companies Act of 1913, as the section did not create new liabilities or confer new rights, but merely created a summary procedure for enforcing existing liabilities. But. it should be noted that an application by a landlord under Section 3(4)(a) of the Act is an application for eviction of the tenant in Revenue Court, which is totally different from a suit for recovery of rent in a civil Court. As pointed out in Venkatachala Odayar v. Ramachandra Odayar : AIR1961Mad423 , it is obvious that the question of arrears of rent of a cultivating tenant and the right of the landlord to recover such arrears from the tenant are not matters which the Revenue Divisional Officer is empowered under the Act to determine, but are matters which may arise incidentally in determining the question whether the cultivating tenant is liable to be evicted or not.

9. The learned Advocate for the respondent relied on Article 137 of the Limitation Act of 1963 as applying to an application of the landlord under Section 3(4)(a) of the Act and urged that an application for eviction based on defaults in payment of rent prior to three years would be barred by virtue of the article, and hence such arrears of rent could not be ordered to be deposited by the Revenue Court. There is a fallacy in this contention. The cause of action to apply for eviction is the default in payment of rent up to the date of the application and it is really immaterial whether such arrears is for three years, or less, or more. In Woodfall on 'Landlord and Tenant' (26th Edition, Vol. 1) it is stated at page 368 in paragraph. 881, on the authority of Barratt v. Richardson and Cresswel l L.R. (1930) K.B. 686, that where a lessor had under the lease a right of re-entry when the rent was in arrear for twenty-one days and the assignee of the lease was in possession of the land, no rent having been paid for over twelve years, it was held that the lessor's claim to possession was not barred as not having been made within twelve years next after the time at which the right to make such re-entry had first accrued, but that his right to re-enter accrued afresh in respect of each subsequent quarter day whenever any part of the rent reserved was in arrear for twenty-one days, and he was therefore entitled to rely on the last non-payment of rent before writ issued or any previous non-payment of rent upto twelve years before writ. Hence the landlord may waive and not rely on earlier defaults in payment of rent during the period prior to three years for claiming eviction. By virtue of the Limitation Act the right to demand rent prior to three years might get barred. But even such barred arrears of rent could form a valid consideration for a promissory note or other fresh contract in writing under Section 25 of the Contract Act. Kailasam, J., in Nallathambi v. Nagarathnaswamy Devasthanam (1965) 2 M.L.J. 386 : I.L.R. (1965) Mad. 225, has held that there is no period of limitation for the landlord to file a petition for eviction under Section 3(4)(a) of the Act as the Limitation Act of 1908 does not provide for any period to an application for eviction by the landlord under the Act. Even the present petition by the landlord was filed in the Revenue Court when the Limitation Act of 1908 was in force. But in the light of our discussion, it would not make any difference even if Article 137 of the Limitation Act of 1963 is assumed to apply to an application for eviction by a landlord against a cultivating tenant under Section 3(4)(a) of the Act.

10. In the result, we are of the opinion that the Revenue Court has jurisdiction to direct the cultivating tenant to pay the entire arrears of rent in order to avoid being evicted from his holding. But, as already pointed out, Clause (b) of Sub-section (4) of Section 3 of the Act enables the Revenue Divisional Officer in the exercise of his judicial discretion to allow a cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under the Act inclusive of such costs as he may direct, and if the cultivating tenant deposits the same as directed, he shall be deemed to have paid the rent under Sub-section (3)(b) of Section 3 of the Act. The exercise of judicial discretion is only as regards allowing the cultivating tenant reasonable time to make the deposit of arrears of rent and not as regards the extent of quantum of arrears. In Vasudeva Udpa v. Krishna Udpa : AIR1921Mad418 , it is pointed out that the 'tenant' should not be given relief against forfeiture until the full arrears are paid, the full arrears being probably limited to twelve years. But having regard to the provisions of the Act, arrears of rent subsequent to 31st March, 1954 alone could be directed to be deposited. It is true that a direction by the Revenue Court to a cultivating tenant to pay arrears of rent for a number of years beyond the period of limitation would impose a heavy burden on him. But the answer to this contention is that such a tenant who has defaulted to pay rent for a long period is not really entitled to ask the Revenue Court to exercise its discretion of not evicting him from his holding at the instance of the landlord. If in spite of it the Revenue Court thinks it fit to exercise its discretion even in the case of such a tenant, it is but reasonable that he should be asked to pay the entire arrears of rent which he would have to pay to avoid eviction on the ground of non-payment of rent.

11. The order of the Revenue Divisional Officer is therefore incorrect and it is set aside. The respondent is directed to pay, the entire arrears of rent excluding the amount already deposited by him within one month from the date of receipt of this order in the lower Court, and on his failure to do so, he shall be evicted. The petitioner is entitled to costs of this petition.


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