Subbiah Odayar vs The Revenue Court, Tanjore and another

Rajamannar, C.J.—This appeal against the judgment of Rajagopalan, J., ermines in the following circumstances The contesting respondent

(respondent 2) the landlord, filed an application on 21st May 1954 in the Revenue Court, Tanjore, under 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 49 kalams

and 6 measures of paddy and a sum of Rs. 265 as cash rent for the punja, 18 kalsms of black-gram, and the landlord''s share of the gingerly 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 cocoa-nut trees in respect of

which the rent was payable had been uprooted in the cyclone of 1952. During the pungency 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 under S. 10 (2) (c) as follows

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

rent due, viz., 49 K. 6 M. paddy and 18 K. black-gram and cash 265 (here enter the quantity if in kind and the amount if in cash) for the

agricultural year 1958-54, 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 80 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 adjoined to 27th August 1954. Meanwhile, on 31st July 1954, the Conciliation Officer passed an order fixing the paddy rent

due as 374 kalams. The result was that no arrears were due in respect of paddy rent. There was some dispute as to whether the kist for fast 1362

63 was paid by the landlord or the tenant. The Revenue Court found that the landlord had paid the kist for fast 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 black gram and cash rent, the counter petitioner did not

discharge the arrears till today. Today he filed a petition stating that he will pay the cash rent and the petitioner''s share of black gram 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 ends.

The appellant thereupon filed an application to this Court under Art. 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 under 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 arrack together with the coat of the

proceeding within thirty days of the date of the notice, this notice could be issued only after the determination of the question 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 S. 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 S, 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 nonpayment of rent or of any amount made payable by a condition

imposed in pursuance of S. 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 or amount in arrears 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 Cls. (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 S. 10 (2) (c) in the case of an application

for eviction on the ground of nonpayment of rent or of any payment made payable by a condition imposed in pursuance of S. 6. 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 arrears 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 arrears 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, docs net 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 nonpayment of rent. No doubt, a notice purporting to be under S. 10 (2) (c) was issued on

I2th 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, 1964 for the arrears due.

We have perused the entire records 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 inquiry 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. S. 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 374 kalams. The result of this was that there was no arrears 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

arrears. 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 S.

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 arrears within a period of one month, but the Revenue Court refused to grant him any time.

Mr. Ramachandra Aiyar for the landowner-respondent urged that the pendency of proceedings before the Conciliation Officer did not deprive

the Revenue Court''s power under S. 10 of the Act. We agree with him. Butt hen 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 lineal order impliedly holding that the amount claimed by the land. owner was

lawfully due.

The order of eviction passed by the Revenue Court in disregard of the provisions of S. 10 (2) (c) of the Act (Madras Act XIV of 1952) must

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

tenant to tender the amount in arrears 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.