Subbiah Odayar vs The Revenue Court and Another

P.V. Rajamannar, C.J.—This appeal against the judgment of Rajagopalan, J., arises in the following circumstances: The contesting

Respondent (Respondent 2), the landlord filed an application on 21st May 1954, in the Revenue Court, Tanjore, u/s 10 of Madras Act XIV of

1952, for eviction of the Appellant on the ground that he had failed to pay the arrears of rent. The arrears, according to the landlord, amounted to

forty-nine kalams and six measures of paddy and a sum of Rs. 265 as cash rent for the punja, eighteen kalams of blackgram, and the landlord''s

share of the gingelly crop. The Appellant pleaded in defence that the rent claimed was not fair rent and the yield was very poor and the paddy

already delivered by him to the second Respondent was sufficient in the circumstances. He denied liability to pay the cash rent, because most of

the cocoanut trees in respect of which the rent was payable had been uprooted in the cyclone of 1952. During the pendency of the petition, the

Appellant applied to the Conciliation Officer to fix the fair rent. He, therefore, prayed for a postponement of the hearing of the eviction petition till

the Conciliation Officer had fixed the fair rent. On 12th July 1954, the Revenue Court issued a notice purporting to be u/s 10(2)(c) as follows:

Whereas it has been brought to the notice of this Court that you as tenant under Venugopala Odayar (name of the landowner) have failed to pay

the rent due, viz., forty-nine kalams six marakkals paddy and eighteen kalams blackgram and cash Rs. 265 (here enter the quantity if in kind and

the amount if in cash) for the agricultural year 1953-54, you are hereby called upon to tender to the landowner the said rent together with Rs. 4

(four) being the costs of this proceeding within thirty days from the date of this notice, failing which an order will be passed for your eviction.

It appears from the notes paper that after directing issue of the above notice the Revenue Court adjourned the petition to 13th August 1954. The

petition was further adjourned to 27th August 1954. Meanwhile, on 31st July 1954, the Conciliation Officer passed an order fixing the paddy rent

due as three hundred and seventy-four kalams. The result was that no arrears were due in respect of paddy rent. There was some dispute as to

whether the kist for fasli 1362-63 was paid by the landlord or the tenant. The Revenue Court found that the landlord had paid the kist for fasli

1362. On 28th September 1954, the Revenue Court passed an order directing the eviction of the Appellant. The material portion of this order runs

as follows:

I heard the pleading and arguments of the Counsel for both sides and as there were no witnesses to be examined on either side, I issued a 10(2)(c)

notice on 12th July 1954, for the arrears due. After the issue of 10(2)(c) notice, the decision of the Conciliation Officer was received. According

to this order, the counter-Petitioner need not pay paddy rent. As regards the blackgram and cash rent, the counter-Petitioner did not discharge the

arrears till to-day. To-day he filed a petition stating that he will pay the cash rent and the Petitioner''s share of blackgram within a period of one

month. The counter-Petitioner has already been given sufficient time. The time granted in the 10(2)(c) notice has already expired. He is, therefore,

ordered to be evicted from the lease lands.

The Appellant, thereupon, filed an application to this Court under Article 226 of the Constitution for the issue of a writ of certiorari or other proper

writ or order or direction calling for the records and quashing the aforesaid order of eviction passed by the Revenue Court, Tanjore. The main

ground on which the Appellant attacked the order of the Revenue Court was that, u/s 10(2)(c), the Revenue Court should, before passing an order

for eviction, call upon the tenant by notice in the prescribed manner to tender to the landowner the rent in arrear together with the cost of the

proceeding within thirty days of the date of the notice. This notice could be issued only after the determination of the quantum of arrears. The

contention of the Appellant was that as such determination by the Revenue Court was only on 28th September 1954, after receipt of the order of

the Conciliation Officer, he was entitled to be given thirty days'' time from that date for payment of the arrears so determined. The notice issued on

12th July 1954, was not a proper notice such as was contemplated by Section 10(2)(c) of the Act. Rajagopalan, J., overruled this contention and

dismissed the application. Hence this appeal.

Section 10 of Madras Act XIV of 1952, in so far as it is material for this appeal, runs as follows:

(1) No cultivating tenant shall be evicted except as provided in Section 6, or unless--

(b) he has failed to pay any rent accruing due after the commencement of this Act within two months of the date stipulated in the lease deed or in

the absence of a lease deed, within one month of the due date according to the usage of the locality or village;

(2)(a) No tenant shall be evicted under this section except on an application made in that behalf to the Revenue Court;

(b) The Revenue Court shall on such application inquire into the matter and give its decision.

(c) Upon any application made for the eviction of a tenant on- the ground of non-payment of rent or of any amount made payable by a condition

imposed in pursuance of Section 6, the Revenue Court shall, before passing an order for eviction, call upon the tenant, by notice in the prescribed

manner, to tender to the landowner the rent on amount in arrear together with the cost of the proceedings within thirty days from the date of the

notice, and if the tenant does not comply with such notice, the Revenue Court shall pass an order for his eviction.

The petition for eviction in this case was on the ground that the tenant had failed to pay the rent. In such a case, if any objection is taken by the

tenant to the rate of rent claimed or liability is denied on any other ground, it is the duty of the Revenue Court to inquire into the matter and give its

decision. In the case of an application on one or other of the grounds specified in Clauses (a) to (g) except (b), if the Revenue Court gives its

decision in favour of the landlord, forthwith an order of eviction should follow. An exception is, however, made in Section 10(2)(c) in the case of

an application for eviction on the ground of non-payment of rent or of any payment made payable by a condition imposed in pursuance of Section

The Revenue Court, before passing an order of eviction, should call upon the tenant by a notice in the prescribed manner to tender to the

landlord the rent or amount in arrear together with the cost of the proceedings within thirty days from the date of the notice. It is only if the tenant

does not comply with the notice that the Revenue Court shall pass an order for his eviction. It is clear, therefore, that there are two stages in the

disposal of an application for eviction on the ground of non-payment of rent. The first stage is an inquiry into the objections raised on behalf of the

tenant, followed by a decision by the Revenue Court. If the decision is against the landowner, the application is dismissed straightaway. But if the

decision is in favour of the landowner, a notice is issued calling upon the tenant to tender the rent in arrear and costs. Then, we get the next stage

after the expiry of thirty days from the date of the notice. If by that date, the tenant does not comply with the notice, that is, does not pay up the

arrears of rent and costs, the Revenue Court shall pass an order for his eviction.

From a perusal of the record, it appears to us that the Revenue Court did not pay sufficient attention to the special provisions made for the

disposal of an application for eviction on the ground of non-payment of rent. No doubt, a notice purporting to be u/s 10(2)(c) was issued on 12th

July 1954. Before the issue of a notice, there should have been a decision by a Revenue Court of the exact amount of arrears due. Learned

Counsel for the landowner-Respondent (as well as the learned Judge, Rajagopalan, J.) placed very much reliance on the following passage in the

final order of the Revenue Court:

I heard the pleading and arguments of the Counsel for both sides and as there were no witnesses to be examined on either side, I issued a 10(2)(c)

notice on 12th July 1954, for the arrears due.

We have perused the entire record and have not found anywhere a decision of the Revenue Court on the objections raised by the tenant. We

found an application made by the tenant to postpone the inquiry till the receipt of the order of the Conciliation Officer on the tenant''s application

for the fixation of fair rent. There is no kind of order made on this application. From what transpired subsequently, it is clear that the Revenue

Court did not proceed on the assumption that the iniquity was closed when the notice, dated 12th July 1954, was issued. We find from the notes

paper the petition being adjourned from time to time, from 12th July 1954, to 13th August 1954, 27th August 1954, 13th September 1954, and

28th September 1954, on which day the final order was passed. On 27th August 1954, the petition was adjourned for examining witnesses.

Section 10(2)(c) of the Act does not contemplate any inquiry, including the examination of witnesses, after the issue of a notice calling upon the

tenant to tender the arrears of rent and costs. In the final order, dated 28th September 1954, the Revenue Court deals with the order of the

Conciliation Officer fixing the paddy rent at three hundred and seventy-four kalams. The result of this was that there was no arrear of paddy rent.

The most reasonable way of construing the proceedings is to hold that the order, dated 28th September 1954, embodies the decision of the

Revenue Court fixing the amount of rent in arrear. It was thereafter that a notice should have been issued calling upon the tenant to pay the arrears

so determined and the costs. This was not done. On the other hand, by the very same order in which the Revenue Court determined the amount of

arrears, the tenant was also directed to be evicted, without the tenant being given the time of thirty days to pay up such arrears. The Revenue

Court observes that the time granted in the Section 10(2)(c) notice had already expired, But it has apparently overlooked that the amount

mentioned in the notice was not the amount due. The tenant offered to pay the arrear within a period of one month, but the Revenue Court refused

to grant him any time.

Mr. Ramachandra Ayyar, for the landowner-Respondent, urged that the pendency of proceedings before the Conciliation Officer did not

deprive the Revenue Court''s power u/s 10 of the Act. We agree with him. But then the Revenue Court should proceed to inquire and decide on

the matter. From the order of the Conciliation Officer, it is amply evident that both the landowner and the tenant adduced a great deal of evidence

on the question of fair rent. The parties evidently did not want to duplicate the evidence again before the Revenue Court. In these circumstances,

the notice issued on 12th July 1954, could not have been intended as a final order impliedly holding that the amount claimed by the landowner was

lawfully due.

The order of eviction passed by the Revenue Court in disregard of the provisions of Section 10(2)(c) of the Act (Madras Act IV of 1952) must,

therefore, be and is hereby quashed. The matter will go back to the Revenue Court for the issue of a proper notice u/s 10(2)(c) calling upon the

tenant to tender the amount in arrear together with the cost of the proceedings within thirty days from the date of such notice. If the tenant does not

comply with such notice, the Revenue Court shall then pass an order for eviction.

The appeal is allowed, but in the circumstances, there will be no order as to costs.