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PETITIONER: CHINNAMARKATHIAN ALIAS MUTHU GOUNDER & ANOTHER

       Vs.

RESPONDENT: AYYAVOO ALIAS PERIANA GOUNDER & OTHERS

DATE OF JUDGMENT10/12/1981

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KOSHAL, A.D. MISRA, R.B. (J)

CITATION:  1982 AIR  137            1982 SCR  (2) 146  1982 SCC  (1) 159        1981 SCALE  (3)1891

ACT:      Madras (Now  Tamilnadu) Cultivating  Tenants Protection Act 1955, S 3, 4(a) and (b)-Scope of-Cultivating Tenant-Rent in arrears-Eviction  petition by landlord-composite order by Revenue Divisional Officer-Allowing time for deposit of rent and on  default directing  eviction-Such order whether valid and legal.

HEADNOTE:      The appellants  in the appeals were cultivating tenants in occupation  of different parcels of land which were owned by the  respondents. The  respondents purchased  these lands from the  erstwhile owner,  who  also  executed  a  deed  of assignment assigning  the rent in arrears of the tenants for the periods  1958-59  and  1959-60.  The  respondents  filed eviction petitions  against the  appellants for  eviction on the ground that they were in arrears of rent due and payable for the  years 1958-59,  1959-60  and  1960-61,  which  were contested on diverse grounds.      The  Revenue  Divisional  Officer  over-ruled  all  the contentions of the tenants and held that the tenants were in arrears of  rent for the aforementioned three years and were liable to  pay the  same. He  further held  that  since  the previous landlord  assigned the  arrears of rent for the two years, 1958-59  and 1959-60,  the respondents  were not only entitled to  commence action for recovery of arrears of rent due and  payable to the previous landlord but they were also entitled to evict the tenants for failure to pay the rent in arrears. The tenants were directed to pay the arrears within six weeks, failing which they were to be evicted.      In the Civil Revision Petitions by the tenants the High Court directed  that the rent found in arrears be deposited, which order was complied with. The High Court found that the Revenue  Divisional  Officer  was  in  error  in  passing  a composite order, whereby he determined the amount of arrears and after  specifying the  time within  which the  amount of arrears should  be paid  up prescribed  the consequences  of failure  namely   that  the   tenants  should   be  evicted: nevertheless held  that  the  orders  made  by  the  Revenue Divisional Officer  were not  one for eviction and dismissed the revision petitions.

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    In the appeals to this Court it was contended on behalf of the  appellants that  when the Revenue Divisional Officer grants time  to the tenant to deposit the arrears of rent he cannot simultaneously  pass an order of eviction which is to take effect   future  and such  an order  can be passed only after the  default in  making the  deposit is  committed. On behalf of  the respondents it was contended that the Revenue Divisional Officer has a discretion to grant time to the 147 defaulting tenant to repair the default, and therefore there would be nothing illegal in granting time and simultaneously providing for consequence of default.      Allowing the appeals ^      HELD: [By the Court]      1. When the Revenue Divisional Officer allows time to a cultivating tenant  for depositing  the arrears  of rent  in pursuance of the provisions of clause (b) of sub-section (4) of Section  3 of  the Act,  he cannot  simultaneously pass a conditional order  of eviction  which is to take effect on a default to  occur in future. An order to evict can, in terms of the  section, only  be passed  ’if the cultivating tenant fails to deposit the sum as directed’. [160 E; 158 G-159 B]      2.  The   orders  of  the  Revenue  Divisional  Officer directing eviction,  were passed  in  contravention  of  the express provision  of  clause  (b)  of  sub-section  (4)  of Section  3   of  the   Act  and   are   therefore,   without jurisdiction. [160 F, C]      3.  The   order  of  the  Revenue  ’Divisional  Officer directing deposit of rent having been actually complied with about a  couple of  decades back  it is no use remitting the case to  him. The  ends of  justice would be served if it is declared that  the tenants  are qualified for the protection envisaged by the Act against their eviction. [160 G-H, A-B]      [per D.A. Desai J.]      1. Section  3 of  the Act  places  an  embargo  on  the eviction of  a cultivating tenant and the protection extends to rendering  a decree  or order  of a  court  for  eviction nugatory. An  enabling provision  in sub-section  (4)(a)  of Section 3  enables  the  landlord  to  seek  eviction  of  a cultivating tenant  on grounds  available to  him under  the Act. [154 B]      2. When an application for eviction is made, clause (b) of sub-section  (4) prescribes  the procedure to be followed by the l Revenue Divisional Officer. The officer has to, (i) give an opportunity both to the landlord and the cultivating tenant to make a representation, (ii) hold a summary enquiry into the  matter to  determine the  rent in  arrears.  After having determined the rent in arrears the Revenue Divisional Officer has to further enquire the relevant circumstances of the  landlord   and   the   cultivating   tenant   and   the circumstances which  have a  bearing on the issues relatable to the need of the landlord for rent and the paying capacity of the tenant. Thereafter the Revenue Divisional Officer has to decide  what length of time has to be given to the tenant to deposit  the rent  found in arrears and at that stage the proceeding must  stop. It  is something  like a  preliminary issue to  be determined  because after a finding is recorded that the  tenant is  in arrears and the amount of arrears is determined  the   Revenue  Divisional  Officer  is  under  a statutory obligation  to grant time to deposit arrears. [154 C-E]      3. The  section grants  locus poenitentiae  to a tenant who has  committed default  in payment  of rent. Granting of the time  is not  a concession dependent upon the sweet will

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of  the  Revenue  Divisional  Officer,  it  is  a  statutory obligation 148 cast on  the Revenue Divisional Officer. He has a discretion in determining  the length of time and this discretion is to be  exercised   judicially  based   upon   objective   facts ascertained in the inquiry relatable to the circumstances of the landlord and the tenant. [154 G]      4.  The   proceedings  before  the  Revenue  Divisional Officer under section 3 of the Act are judicial proceedings. The Revenue  Divisional Officer  is a Court a as provided in section 6(b) of the A ct and a revision petition lies to the High Court against his order. [155 D]      5. If  the proceedings  are judicial and there is a lis between the  parties,  the  rival  contentions  have  to  be properly adjudicated  upon the  evidence placed  before  the Court. Before  the Revenue  Divisional Officer  can make  an order for  eviction of  a cultivating  tenant he  has  as  a matter of statutory obligation to determine the issues which arise in  the case  under sub-section  (4)(b) of  section 3, record a  finding on each of them and make a speaking order. The Revenue  Divisional Officer  has to  grant time  to  the cultivating tenant  to deposit  the arrears found due by him and  the   length  of   time  is  to  be  relatable  to  the circumstances of  the landlord  and the  cultivating tenant. After  determining   the  arrears   and   ascertaining   the circumstances of  the landlord and the tenant and fixing the length of  time to  pay the  arrears the proceedings at that stage must  stop. This is implicit in sub-section (4) (b) of section 3. [155 E-H]      6. If  a court  in exercise  of jurisdiction  can grant time to  do a  thing, in the absence of a specific provision to the  contrary curtailing,  denying  or  withholding  such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing  a composite  order would be acting in disregard of  the   jurisdiction   in   that   while   granting   time simultaneously the  court denies  to itself the jurisdiction to extend  time. The  principle of  equity is that when some circumstances are  to be  taken into  account for  fixing  a length of  time within  which a certain action is taken, the court retains  to itself  the jurisdiction to re-examine the alteration  or   modification  of  circumstances  which  may necessitate extension  of time.  If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself  the  jurisdiction  which  in  the  absence  of  a negative provision, it undoubtedly enjoys. [157 D-F]      7. Conditional orders are in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do  not completely  estop a  court from  taking note of events and circumstances which happen within the time fixed. [157 G]      8. The danger inherent in passing conditional orders is that it  may result in taking away jurisdiction conferred on the court  for just decision of the case The true purport of conditional  order   is  that   such  orders  merely  create something like  a guarantee or sanction for obedience of the court’s  order   but  would   not  take   away  the  court’s jurisdiction to  act according to the mandate of the statute or on  relevant equitable considerations if the statute does not deny such considerations. [155 D-E]      Mahant Ram Das v. Ganga Das, [1961] 3 SCR 763, referred to. 149      [per Koshal & Misra JJ]

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    1. Sub-section  (4) of  section  3  gives  the  Revenue Divisional Officer  power either to allow the application of the landlord  or to  dismiss it  after he has held a summary enquiry into  the matter.  If the application is allowed, an order of  eviction has  to be passed. If it is dismissed the proceedings come  to an  end.  However,  if  the  ground  of eviction is  non-payment of  rent,  the  Revenue  Divisional Officer is  clothed with  power  to  allow  the  cultivating tenant to  deposit the  arrears and  costs, as directed. The power is discretionary and, while exercising the same, it is not incumbent  or the  Revenue Divisional  Officer to  grant time. [164 E-F]      2. If the legislature intended to make it obligatory on the part of the Revenue Divisional Officer to fix a time for deposit of  the arrears  in all  cases covered by clause (a) and clause  (a) of sub-section (2) there is no reason why it should have  used the word ’may’ in relation to the grant of time. Clause  (b) of  sub-section (3)  provides that "if the court  finds  that  any  sum  is  due  it  shall  allow  the cultivating  tenant,   just  and   reasonable  time..."  The difference in the language used by the legislature in clause (aa) of sub-section (2) and in clause (b) of sub-section (3) is significant and not without purpose. The intention of the legislature appears  to be that normally a defaulting tenant must seek  the help  of the court all by himself and that if he does so he must be protected but that a defaulting tenant who waits  for payment  of rent  till he  is  sought  to  be evicted by  the landlord  is not necessarily entitled to the same protection. [164 G 165 B]      Circumstances may exist which may place him at par with a tenant  covered by  sub-section (3)  but then  it may  not necessarily be  so. That is why it is left to the discretion of the  Revenue Divisional  Officer to  grant  time  to  the cultivating tenant or to deny him that opportunity. [165 C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 2197- 2199 of 1969.      From the  judgment and  order dated  the 16th February, 1965 of  the Madras  High Court  in Civil  Revision Petition Nos. 2399, 2400 & 2401 of 1961.      P. Govindan Nair, K. J. John and Mrs. Bady Krishnan for the Appellants .      M. Natesan,  Mrs. J.Ramachandran  and K.  Ram Kumar for the Respondents.      The following Judgments were delivered:      DESAI, J.  Respondents in each of these appeals are the landlords of  the land  more particularly  described in  the three different  petitions filed by them in the Court of the Revenue Divisional  Officer, Namakkal  in Tamil  Nadu  State seeking to evict tenants of 150 different  parcels  of  land  on  the  allegation  that  the concerned tenants  were in  arrears of  rent for  the  years 1958-59, 1959-60 and 1960-61. The tenants who are appellants in these  three appeals appeared in the respective petitions and contested  the same  on diverse grounds but the only one now surviving  at this  stage is;  whether in  view  of  the language employed  in section  3, 4(a) and (b) of the Madras (now Tamil  Nadu) Cultivating  Tenants Protection  Act, 1955 (’Act for  short), the  Revenue Divisional  officer erred in passing a composite order for payment of rent found to be in arrears within  the time  prescribed by  him and on default,

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without any  further proceeding,  directing eviction  of the tenants.      The respondents  purchased the  land cultivated  by the tenants in  each of  the petitions under sale deeds Ext. P-6 dated January  22, 1960  and Ext.  P-7 dated  March 9, 1960, from the  erstwhile  owner  of  the  land  one  Nachayammal. Subsequently by  the deed  of assignment  Ext. P-5 dated 5th December, 1960,  Nachayammal, the  vendor of the respondents assigned the  rent in  arrears for  the period  1958-59  and 1959-60 to the respondents. By the time, action in each case was commenced,  according to  the respondents-landlords rent for  the  year  1960-61  had  become  due  and  payable  The respondents accordingly  filed C.T.P.A.  Nos. 1,  2 and 3 of 1961 against  the respective tenants on January 2, 1951, for eviction of  the tenants  on the  ground that  they were  in arrears of rent due and payable for the years 1958-59, 1959- 60 and 1960-61.      The  Revenue   Divisional  Officer  overruled  all  the contentions of  the appellants-tenants in each case and held that  the   tenants  were   in  arrears   of  rent  for  the aforementioned three  years and that they were liable to pay the same.  It was  further held  that since  by the  deed of assignment, previous  landlord assigned  the arrears of rent for  two   years  1958-59  and  1959-60  in  favour  of  the respondents, they  were not  only entitled  to commence  the action for  recovery of  arrears of  rent due and payable to the previous  landlord but  they were also entitled to evict the tenants  for failure  to pay  rent  in  arrears.  Having recorded  these  findings  the  Revenue  Divisional  Officer passed identical  order  in  each  case  with  variation  in figures. only  one order  may  be  extracted  to  focus  the attention on  the controversy  now brought to this Court. In C.T.P.A. No. 1/61 the following final order was made:           "In view  of my  findings above  I hold  that  the      respondents are in arrears of rent to the extent of Rs.      2,850 for the years 1958-59, 1959-60 and 1960-61 to the      petitioners. I 151      direct under  section 3,  4(a) that this amount be paid      to the   petitioners  within six weeks from the date of      this order failing which they shall be evicted from the      suit lands." This order  was made  on November 6, 1961. The tenants were, therefore, under  an obligation to pay the arrears found due by December  18,1961, to  qualify for  the protection of the Act. Admittedly  the tenants  did not  deposit  the  arrears found due  by the Revenue Divisional Officer but filed three Civil Revision  Petitions on  December 11,  1961 in the High Court. While  admitting the  revision petitions  on December 15, 1961,  the High Court granted conditional stay directing that the  rent found in arrears be deposited within the time set out in the order of the High Court. A dispute appears to have been  raised about  the deposit  made  by  the  tenants whereupon the  High Court  on May  2, 1962, directed that an additional amount  of Rs.  950 be  deposited by  the tenants within the time prescribed by it and it is conceded that the conditional orders have been fully complied with.      The  most   important  contention   that  engaged   the attention of  the High  Court at the hearing of the Revision Petitions was  whether the Revenue Divisional Officer was in error in passing a composite order whereby he determined the amount of  rent in  arrears and  after specifying  the  time within which  the amount  in  arrears  should  be  paid  up, prescribed the  consequences of  failure to  act within  the prescribed time,  namely, that the tenants would be evicted.

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The High Court noticed some of its own conflicting decisions bearing on the topic but ultimately held that the view taken by Srinivasan,  J.  in  Venkitaswami  Naicker  v.  Ramaswami Naicker, in which it was held as under, was correct:           "Having regard  to the  object of the enactment it      is clear  that the  law empowers the Revenue Divisional      Officer to grant a reasonable time to the tenant to pay      the arrears  in order to avoid eviction. There may be a      variety of  circumstances by reason of which the tenant      might find it difficult to comply with the direction to      deposit the  arrears by  the date fixed. If the date so      fixed initially  is to be an inflexible and unalterable      date, it  is bound  to work  considerable hardship upon      the tenants.  It would  be a  mechanical application of      the  provision  of  the  section  for  the  purpose  of      eviction. The object of the section is to avoid 152      eviction wherever possible and not insist upon eviction      for such reasons as obtain in the case."      Having noticed  the law  as indicated  in  the  passage extracted, the  High Court  observed that  the order made by the Revenue  Divisional Officer  was not one for eviction. A further unqualified  order has  to be  passed by the Revenue Divisional Officer  directing the  eviction But  at a  later stage in the judgment the High Court appears to have taken a somersault when  it observed  that in the case before it the High Court  found nothing  wrong  in  the  order  which  the Revenue Divisional  Officer had  passed. In other words, the composite order  was held  to be legal and once the revision petitions filed  by the  tenants were  dismissed by the High Court, the  order passed  by the  Revenue Divisional Officer would immediately come into operation. With respect our task became none  too easy  to wade  through  the  irreconcilably contradictory approach  of the  High Court.  Ultimately  the High Court  dismissed the  three revision  petitions.  Hence these three appeals by certificate.      The object  behind enacting  the Act  clearly manifests itself by reference to its long title which reads:           "An  Act  for  the  protection  from  eviction  of      cultivating tenants  in certain  areas in  the State of      Madras." It was  a beneficient  legislation for  granting security or tenure to cultivating tenants of agricultural lands. It is a well-settled canon  of construction  that in  construing the provisions of  such enactments  the court  should adopt that construction which advances, fulfils and furthers the object of the  Act rather  than the one which would defeat the same and render the protection illusory.      It is  not in dispute that the tenants in each of these appeals are  cultivating tenants and the lands of which they are tenants are lands covered by the Act. They are sought to be evicted  on the  only ground  that  they  have  committed default in  payment of  rent payable from year to year for a period of three years.      Mr.  Natesan  learned  counsel  who  appeared  for  the respondents urged that if the Revenue Divisional Officer has a discretion  to grant  time to  the  defaulting  tenant  to repair the  default,  there  would  be  nothing  illegal  in granting time  and simultaneously  providing for consequence of default.  This contention  may  be  examined  from  three independent angles; 153      (1)  Has Revenue  Divisional Officer  a  discretion  to           grant time after being satisfied that a default is           committed, to  repair the  default within the time

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         considered reason  able by  him and  so ordered by           him ?      (2)  Has he  a discretion to further extend the time if           the defaulting  tenant is  unable  to  repair  the           default within the time fixed by him ?      (3)  What is the impact of answer of the aforementioned           two  questions  on  his  jurisdiction  to  pass  a           composite order ?      Section 3 and the relevant sub-sections read as under:           3(1) Subject to  the next succeeding sub-sections,           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;           X                X            X                (4)(a) "Every  landlord seeking  to  evict  A           cultivating tenant  failing under  sub-section (2)           shall, whether  or not there is an order or decree           of a  court for  the eviction  of such cultivating           tenant,  make   an  application   to  the  Revenue           Divisional Officer and such application shall bear           a Court-fee stamp of one rupee."                (4)(b) on  receipt of  such application,  the           Revenue Divisional  Officer shall,  after giving a           reasonable opportunity  to the  landlord  and  the           cultivating tenant  to make their representations.           hold a summary enquiry into the matter and pass an           order   either   allowing   the   application   or           dismissing it  and in  a case falling under clause           (a) or clause (aa) of sub-section (2) in which the           tenant had not availed of the provisions contained           in sub-section (3), the Revenue Divisional Officer           may allow  the 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 this  Act  inclusive  of  such           costs as  he may direct. If the cultivating tenant           deposits the  sum as  directed, he shall be deemed           to have paid the rent under sub-section 3(b). 154           If the cultivating tenant fails to deposit the sum           as directed,  the Revenue Divisional Officer shall           pass an order for eviction."      Section 3  of the Act places an embargo on the eviction of a  cultivating  tenant  and  the  protection  extends  to rendering  a  decree  or  order  of  a  court  for  eviction nugatory. There  is an  enabling  provision  in  sub-section (4)(a) of  section 3  which enables  the  landlord  to  seek eviction of  a cultivating tenant on the ground which may be available to  him under the Act, When such an application is made, clause (b) of sub-section (4) prescribes the procedure to be  followed  by  the  Revenue  Divisional  Officer.  The Officer concerned  has to,  (i) give  an opportunity both to the  landlord   and  the   cultivating  tenant   to  make  a representation; (ii)  hold a summary enquiry into the matter to determine  the rent  in arrears.  After having determined the rent  in arrears  the Revenue  Divisional Officer has to further enquire  the relative  circumstances of the landlord and the  cultivating tenant and the circumstances which have a bearing  on the  issues are the circumstances relatable to the need  of the  landlord for  rent and  the present paying capacity of  the tenant. After taking into consideration the circumstances of  both the  landlord  and  the  tenant  thus ascertained the  Revenue Divisional  Officer has  to  decide

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what length of time has to be given to the tenant to deposit the rent  found in  arrears and at that stage the proceeding must stop.  It is  something like  a preliminary issue to be determined because  after a  finding is  recorded  that  the tenant  is   in  arrears   and  the  amount  of  arrears  is determined,  the  Revenue  Divisional  Officer  is  under  a statutory obligation  to grant  time to deposit the arrears. The section  grants locus  poenitentiae to  a tenant who has committed default  in payment  of rent. Granting of the time is not  a concession  dependent upon  the sweet  will of the Revenue Divisional  Officer. Granting  time to  deposit  the arrears  is   statutory  obligation   cast  on  the  Revenue Divisional Officer.  He has  a discretion in determining the length of  time and  this  discretion  is  to  be  exercised judicially based  upon objective  facts ascertained  in  the inquiry relatable  to the  circumstances of the landlord and the tenant. In the context in which the expression ’relative circumstances of  the landlord and the cultivating tenant is used clearly  manifests the  legislative intention  that the circumstances of the landlord for recovering arrears of rent which may  indicate his  urgent need for the money or if the rent is  in the  crop share,  the  crop,  and  the  relative circumstance of  the tenant  would be  his present financial position to  repair the  default. On both sides there can be number of circumstances one can envi- 155 sage which, if properly brought to the notice of the Revenue Divisional Officer, would influence his judicial decision as to the  length of  time to be granted by him for the deposit of arrears.  Where the  landlord is  a big  landlord to whom payment of  rent by  one tenant  of a small amount would not make any difference and the tenant is a needy tenant who was so involved  in such  depressing circumstances that he could not pay  even the small amount of rent in time and when such circumstances  are   judicially   appraised,   the   Revenue Divisional Officer  may shorten  or lengthen  the time to be given for depositing the amount so as to repair the default. It  is  not  open  to  the  Revenue  Divisional  Officer  to arbitrarily fix time. His order fixing the time must show on the face  of record that he made the necessary enquiry as to the  relative   circumstances  of   the  landlord   and  the cultivating tenant,  and after  evaluating the circumstances placed before  him by  both the sides he would determine the length of  time and  the order fixing the time must at least give some  indication as  to what weighed with him in fixing the certain  time which  he  fixed  in  a  given  case.  The proceedings  before   the  Revenue  Divisional  Officer  are judicial proceeding.  For the  purpose  of  the  proceedings under section  3 of  the Act, the Revenue Divisional Officer is a  Court as  provided in  section 6(b)  of the  Act and a revision petition  would lie  to the  High Court against the order of the Revenue Divisional Officer.      If the  proceedings are  judicial and  there is  a  lis between the  parties,  the  rival  contentions  have  to  be properly adjudicated  upon the  evidence placed  before  the Court. Before  the Revenue  Divisional Officer  can make  an order for  eviction of  a cultivating  tenant he  has, as  a matter of  ’statutory obligation,  to  determine  the  issue which arise  in the case under sub-section (4)(b) of section 3, record  a finding  on each  of them  and make  a speaking order. By the very language of sub-section (4)(b) of section 3, the  Revenue Divisional  Officer has to grant time to the cultivating tenant  to deposit  the arrears found due by him and  the   length  of   time  is  to  be  relatable  to  the circumstances of  the landlord  and the  cultivating tenant.

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After  determining   the  arrears   and   ascertaining   the circumstances of  landlord and  tenant and fixing the length of time  to pay  the arrears,  the proceeding  at that stage must stop. This is implicit in sub-section (4)(b) of section 3.      The scheme  of the  Act is that merely on determination of rent  in arrears the Revenue Divisional Officer is not to conclude  that  there  is  such  default  which  has  become irreparable and that he is 156 under an  obligation to  evict  the  tenant.  In  fact,  the statute grants  locus poeniteniae to the tenant by making it obligatory upon the Revenue Divisional Officer to grant some time to  the tenant to repair the default. If after the time so granted  expires and  the tenant fails to comply with the order calling upon him to deposit the arrears there would be a default  which may  become irreparable  and  eviction  may follow. Till  then there  is no  jurisdiction in the Revenue Divisional Officer to direct eviction.      In fact  the High Court itself has taken this very view when it  observed that  the view taken by Srinivasan, J. was the correct  one having  regard to  the avowed object of the Act, namely,  preventing unreasonable eviction and affording protection to  the tenants to retain the holdings so long as interests of  the landlord  in  the  matter  of  the  prompt payment of  rent are safeguarded. At another stage, the High Court observed that the time that has to be given or allowed to the  tenant to deposit the arrears is to be determined by considering what is just and reasonable having regard to the relative circumstances  of both  the parties and by its very nature this  must be  elastic and  flexible and not fixed or final. In  other words,  the High  Court was  of the opinion that the  composite order is not contemplated by sub-section (4)(b) of section 3.      If sub-section (4)(b) of section 3 does not contemplate passing of  a composite order, what is the correct procedure that must be followed in a proceeding under that sub-section ? That  is self-evident  from the  language employed in that sub-section. After  the  application  is  received  and  the parties are  summoned and  representations  are  heard,  the Court must  determine whether  the cultivating  tenant is in arrears of rent. If the answer is in the affirmative, it has to determine  the arrears  in  terms  of  its  money  value. Thereafter, the  Revenue Divisional  Officer must  ascertain relative circumstances of the landlord and the tenant and as indicated hereinabove, these circumstances must be relatable to the  need of  the landlord  for prompt  payment  and  the present prevalent  circumstances of  the tenant relatable to his paying  capacity. Thousand  and one circumstances can be envisaged which  may have  a bearing  on this  aspect. After these circumstances  are properly  adjudicated and evaluated the Revenue  Divisional Officer  must fix  time within which the tenant should pay the amount and repair the default.      It was seriously contended by Mr. Natesan as to what is there in  the scheme  of  the  Act  and  especially  in  the language of sub- 157 section (4)(b)  which would  make it  impermissible for  the Revenue Divisional  Officer simultaneously  passing an order determining rent in arrears and directing that if the tenant fails to  pay the  amount within  the time prescribed by the Court eviction  shall follow  as a matter of course. If this construction of  sub-section  (4)(b)  as  canvassed  by  Mr. Natesan is  adopted the  Revenue Divisional Officer would be denying to  himself a more beneficial jurisdiction conferred

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upon him,  namely, to extend the time for making the payment if an evaluation of circumstances so placed before him he is satisfied that  a further extension is not only just but not to grant it would be harsh and unjust and would be defeating the object  for which  the Act  was  enacted.  An  analogous provision may  be noticed,  It is  a well accepted principle statutorily recognised  in section  148 of the Code of Civil Procedure that  where a  period is  fixed or  granted by the court for  doing any  act prescribed or allowed by the Code, Court may  in its  discretion from time to time enlarge such period even  though the  period originally  fixed or granted may expire.  If a  Court in exercise of the jurisdiction can grant time  to do  a thing,  in the  absence of  a  specific provision to the contrary curtailing, denying or withholding such jurisdiction,  the jurisdiction  to  grant  time  would inhere  in   its  ambit  the  jurisdiction  to  extend  time initially fixed  by it.  Passing a  composite order would be acting in  a disregard  of the  jurisdiction in  that  while directing time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some  circumstances are  to be  taken into  account for fixing a  length of time within which a certain action is to be taken,  the Court  retains to  itself the jurisdiction to re-examine the  alteration or  modification of circumstances which may  necessitated extension  of time.  If the Court by its own  act denies  itself the  jurisdiction to  do so,  it would be  denying to  itself the  jurisdiction which  in the absence of  a negative  provision,  it  undoubtedly  enjoys. Conditional orders,  were  held  by  this  Court  to  be  in terrorem, so that dilatory litigants might put themselves in order and  avoid delay,  but they  do not completely estop a court from  taking note  of events  and circumstances  which happen within  the time  fixed. In  Mahant Ram  Das v. Ganga Das, in  the context of a failure to pay requisite court fee within  the  time  allowed  by  the  Court  subject  to  the condition  order   that  failure  to  pay  would  result  in dismissal of the appeal, this Court observed as under:      "How undesirable it is to fix time peremptorily for a 158      future happening  which leaves  the Court  powerless to      deal with events that might arise in between, it is not      necessary to  decide in  this appeal. These orders turn      out, often  enough to  be  expedient.  Such  procedural      orders, though  peremptory (conditional  decrees apart)      are,  in   essence,  in   terrorem,  so  that  dilatory      litigants might  put  themselves  in  order  and  avoid      delay. They  do not, however, completely, estop a court      from taking  note of  events  and  circumstances  which      happen within  the time fixed. For example it cannot be      said that,  if the  appellant had started with the full      money order  to be  paid and  came well it time but was      set upon  and robbed by thieves on the day previous, he      could not  ask for extension of time, or that the Court      was powerless to extend it. Such order are not like the      law of the Medes and the Persians." The danger  inherent in  passing conditional  orders becomes self-evident because  that by  itself may  result in  taking away jurisdiction  conferred on  the court for just decision of the  case The  true purport  of conditional order is that such orders  merely create  something like  a  guarantee  or sanction for  obedience of  the courts  order but  would not take away  the Court’s  jurisdiction to act according to the mandate  of   the   statute   or   on   relevant   equitable considerations  if   the  statute   does   not   deny   such consideration. In order to avoid subsequent controversy sub-

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section (4)(b)  envisages proceedings in two stages and that by itself  inhibits passing  of a  conditional order. It is, therefore, not possible to accept the construction canvassed for on behalf of the respondents.      As analysed the scheme of sub-section (4)(b) of section 3 requires  the Revenue  Divisional  Officer  to  determine, arrears, ascertain  the exact  amount payable by the tenant, fix the time for payment after taking into consideration the relevant circumstances  of the  landlord and the cultivating tenant and then stop there. There is no power in the Revenue Divisional Officer  at that  stage  to  pass  an  order  for eviction.      If the  tenant deposits  the amount or pays up the rent and repairs the default within the time fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this  fact, the original application of the landlord for eviction would  have to  be dismissed.  If on the other hand the landlord  points out  to the  Revenue Divisional Officer that the cultivating tenant has failed 159 to comply  with the  order made  by the  Court and  if after notice to  the tenant  and in  the absence  of a request for extension of  time which  again may  be judicially examined, the default  becomes wilful  or contumacious.  It is at that stage and  at that  stage alone  that the Revenue Divisional Officer  enjoys   jurisdiction  to   order  eviction.   Such jurisdiction improperly  exercised at an earlier stage would render the order without jurisdiction. Surprisingly the High Court reached the same conclusion but failed to follow it.      In all  the three  cases the Revenue Divisional Officer determined the  arrears of  rent and gave six weeks’ time to pay the same. Within the period of six weeks the cultivating tenants in  each case approached the High Court and obtained conditional stay, the condition being to deposit the rent in arrears within  the time  prescribed by  the High  Court and these  orders  have  been  complied  with.  If  the  Revenue Divisional Officer  had not  denied to  himself the  further jurisdiction to  examine the  situation as it emerged on the date of  expiry of  the period  prescribed by  him, it would have been  brought to  his  notice  that  the  eviction  was unjustified in  view of  the orders  made by the High Court. But as  the order  became effective according to the Revenue Divisional Officer  on  the  mere  failure  to  deposit  the arrears found  due by  him, the  order of  eviction  without jurisdiction became  effective. The  High  Court  held  that there was no order of eviction but affirmed the order of the Revenue Divisional Officer as one for eviction.      The question  then is:  What should  be my  approach in these appeals  ? Frankly  speaking, on  my finding  that the latter part  of the  Revenue Divisional Officer’s order that ’in the  event of  failure to  deposit the amount within the time  prescribed   eviction  would  follow,’  being  without jurisdiction, I  would be  required to  remand the matter to the Revenue  Divisional Officer  to proceed from that stage. However,  I  cannot  overlook  the  fact  that  the  initial proceedings before the Revenue Divisional Officer started in 1961. Two decades have rolled by. The ground of eviction was a technical  ground of default repaired by the orders of the High Court when the rent found in arrears was deposited. The landlords have been paid, may be not specifically within the time prescribed by the Revenue Divisional Officer but within the time  prescribed by  the High Court. It is not necessary to decide  in this  case whether  the time prescribed by the Revenue Divisional  Officer, if  challenged in  the superior court i.e.  the  High  Court,  the  High  Court  would  have

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jurisdiction to  prescribe its  own time  calling  upon  the tenant to  deposit the  amount to  repair the  default. That question be  kept open  but in  the facts  of this  case the amount having been deposited 160 way back  in 1961-62, it would be merely adding to the agony of the  parties for  a very technical consideration to remit the case  to the Revenue Divisional Officer. In the facts of this case it would be an idle formality to remit the case to the Revenue  Divisional Officer  for the  additional  reason that he  will have  to fix  a fresh  date for deposit of the amount and  the amount  has already  been deposited 19 to 20 years back.  Having regard  to all  the circumstances of the case and the inevitable consequence flowing from the passage of time,  I do  not consider it just and proper to remit the case to  the Revenue  Divisional Officer.  In my opinion the tenants have  qualified for  the protection  of the  Act and they were not liable to be evicted.      Accordingly, all  the three appeals are allowed and the order for  eviction of the tenants in each case is set aside but in  the circumstances  of the  case with  no order as to costs.      KOSHAL, J.  I have  had the  advantage of going through the judgment  prepared by my learned brother, Desai, J., and find myself in agreement with him on the following points:      (a)  When  the  Revenue  Divisional  Officer  (RDO  for           short) allows  time to  a cultivating  tenant  for           depositing the arrears of rent in pursuance of the           provisions of  clause (b)  of sub-section  (4)  of           section 3  of the  Act, he  cannot  simultaneously           pass a  conditional order  of eviction which is to           take effect  on a  default to  occur in future. An           order of  that type can, in terms of this section,           only be  passed ’if  the cultivating tenants fails           to deposit the sum as directed’. The orders of the           RDO  directing   eviction  and  covered  by  these           appeals were  thus passed  in contravention of the           express provisions  of the  clause  and  are  thus           without jurisdiction.      (b)  The orders  of the  RDO directing  the deposit  of           rent having  been actually  complied with  about a           couple of  decades back it is no use remitting the           case to him and it would serve the ends of justice           if we  declare that  the tenants are qualified for           the protection  envisaged by the Act against their           eviction.      (c)  All the  three appeals  merit acceptance  and  are           allowed with  no order  as to costs, the order for           eviction of  the tenant  in each  case  being  set           aside. 161      2.  I   may,  however,   observe  that   it  is  wholly unnecessary for the decision of the appeals to determine the question as  to whether  it is  incumbent on  the RDO, while acting in  pursuance of  the provisions  of clause (b) above mentioned, to  grant time  to a tenant who has been found by him to  be in arrears of rent. For one thing, that questions did not  form the  subject-matter of argument on either side at the  hearing  of  the  appeals,  the  only  point  really canvassed before  us being  that when the RDO grants time to the  tenant  he  cannot  simultaneously  pass  an  order  of eviction which  is to take effect in future and which he can pass only  after  the  default  in  making  the  deposit  is committed. Secondly,  that question  does not arise in these appeals as  in each  of the  appeals before  us the  RDO did

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grant time  to the  tenants concerned  to deposit arrears of rent. As  it is,  Desai, J.  has arrived  at  a  categorical conclusion that  according to  clause (b)  aforesaid  it  is obligatory on  the RDO  to grant  time  to  the  tenant  for depositing the arrears in all cases falling under clause (a) or clause (aa) of sub-section (2) of section 3 of the Act in which the tenant has not availed of the provisions contained in subsection (3) of that section. Being unable to subscribe to that  conclusion I  give below  my reasons  for holding a contrary opinion.      3. The  relevant  portion  of  section  3  is  set  out hereunder:           "3(1) Subject to the next succeeding sub-sections,           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           (2) Subject  to the  next succeeding  sub-section,           sub section  (1) shall  not apply to a cultivating           tenant-           (a)   who, in  the areas where....................                if in arrear at the commencement of this Act,                with respect  to  the  rent  payable  to  the                landlord, does  not pay  such rent within six                weeks  after  such  commencement  or  who  in                respect of rent payable to the landlord after                the commencement  of this  Act, does  not pay                such rent  within a  month  after  such  rent                becomes due; or           (aa) who,  in the  other areas  of  the  State  of                Madras, if  in arrear  at the commencement of                this Act, with respect to the rent payable to                the landlord  and accrued  due subsequent  to                the 31st March 1954, 162                does not  pay such  rent within a month after                such commencement,  or who in respect of rent                payable   to    the   landlord   after   such                commencement, does not pay such rent within a                month after such rent becomes due; or           (b)  xx      xx      xx           (c)  xx      xx      xx           (d)  xx      xx      xx      Explanation I-    xx      xx     xx      Explanation II-   xx      xx     xx      Explanation III-  xx      xx     xx      Explanation IV-   xx      xx     xx           "(3)(a) A  cultivating tenant may deposit in Court      the rent or, if the rent be payable in kind, its market      value on  the date  of deposit,  to the  account of the      landlord-           (i) in  the case of rent accrued due subsequent to      the  31st   March  1954,   within  a  month  after  the      commencement of this Act;           (ii) in  the case  of rent  accrued due  after the      commencement of this Act, within a month after the date      on which the rent accrued due.           "(b) The  Court shall  cause notice of the deposit      to be  issued to  the landlord  and determine,  after a      summary   enquiry,   whether   the   amount   deposited      represents the  correct amount  of rent  due  from  the      cultivating tenant. If the Court finds that any further      sum is  due, it shall allow the cultivating tenant such      time as  it may  consider just  and  reasonable  having      regard to  the relative  circumstances of  the landlord

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    and the  cultivating tenant for depositing such further      sum inclusive  of such costs as the Court may allow. If      the Court  adjudges that  no further  sum is due, or if      the cultivating tenant deposits within the time allowed      such further  sum as  is  ordered  by  the  Court,  the      cultivating tenant  shall be  deemed to  have paid  the      rent within  the period specified in the last foregoing      sub-section. If,  having to  deposit a further sum, the      cultivating tenant  fails to  do  so  within  the  time      allowed by the Court, the landlord 163      may evict  the cultivating tenant as provided in sub- A      section (4).      "(c)        xx         xx        xx      Explanation I-         xx        xx       xx"           "(4)(a)  Every   landlord  seeking   to  evict   a      cultivating tenant falling under sub-section (2) shall,      whether or  not there  is an order or decree of a court      for the  eviction of  such cultivating  tenant, make an      application to  the Revenue Divisional officer and such      application shall bear a court-fee stamp of one rupee.           (b) on  receipt of  such application,  the Revenue      Divisional officer  shall, after  giving  a  reasonable      opportunity to  the landlord and the cultivating tenant      to make  their representations.  hold a summary enquiry      into the  matter and  pass an order either allowing the      application or  dismissing it  and in  a  case  falling      under clause  (a) or  clause (aa) of sub-section (2) in      which the  tenant had  not availed  of  the  provisions      contained in  sub-section (3),  the Revenue  Divisional      officer may  allow the  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  this Act  inclusive of such costs as the      may direct.  If the cultivating tenant deposits the sum      as directed,  he shall  be deemed to have paid the rent      under sub-section  (3) (b).  If the cultivating tenant.      fails to  deposit the  sum  as  directed,  the  Revenue      Divisional officer shall pass an order for eviction."      An analysis  of the  section clearly  leads to  certain indisputable propositions.  Sub-section (I)  creates  a  bar against the  eviction  of  a  cultivating  tenant  from  his holding or  any part  thereof, by or at the instance of this landlord, even though the latter seeks to do so in execution of a decree or order of a Court. This bar is subject only to the provisions  of sub-section (2), (3) and (4). Sub-section (2) enacts  an exception  to sub-section  (I) and  lays down inter alia  that  sub-section  (I)  shall  not  apply  to  a cultivating tenant who conforms to the description in clause (a) or  (aa) of  sub-section  (2).  Both  the  clauses  last mentioned cover  tenants who are in arrears in regard to the payment of  rent at  the commencement of the Act or who fail to pay  rent falling  due after  such commencement  within a month 164 after  its   becoming  due.   Sub-section  (3)   enables   a cultivating tenant  to deposit  arrears of rent in Court and further provides  that after notice of such deposit has been given to  the landlord,  the Court would embark on a summary inquiry and  then adjudge  whether any further sum is due to the landlord.  If the Court finds that a further sum is due, "it shall  allow the  cultivating tenant such time as it may consider just  and reasonable  having regard to the relative circumstances of the landlord and the cultivating tenant for

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depositing such  further sum  inclusive of such costs as the Court may allow". If the cultivating tenant fails to pay the sum determined  by the Court to be due under sub-section (3) the landlord  "may" evict the cultivating tenant as provided in sub-section  (4). Sub-section  (4)  then  states  that  a landlord seeking to evict a cultivating tenant falling under sub-section (2)  shall make  an application  to the  RDO who shall, after giving a reasonable opportunity to the landlord and the  cultivating tenant  to make  their representations, hold a  summary inquiry  into the  matter and  pass an order either allowing  the application  or dismissing it. The sub- section further provides that if the case falls under clause (a) or  (aa) of  sub-section (2) in which the tenant has not avail of  the provisions contained in subsection (3) the RDO may allow  the cultivating  tenant such time as he considers just and reasonable having regard.........      4. Now  as I  read sub-section  (4), it  gives the  RDO power either  to allow the application of the landlord or to dismiss it  after he  has held  a summary  enquiry into  the matter. If  the application  is allowed an order of eviction has to  be passed.  If it is dismissed the proceedings again come to  an end.  However, if the ground of eviction is non- payment of  rent, the  RDO is closed with power to allow the cultivating tenant  to deposit  the  arrears  and  costs  as directed. The  power is  discretionary and, while exercising the same,  it is  not incumbent on the RDO to grant time. If the legislature  intended to  make it obligatory on the part of the  RDo to  fix a time for deposit of the arrears in all cases covered  by clause  (a) or  clause (aa) of sub-section (2) there  is no  reason why  it should  have used  the word "may" in  relation to  the grant  of time.  Support for this view is  available in clause (b) of sub-section (3) wherein, the legislature has directed:           "If the  Court finds  that any sum is due it shall      allow the  cultivating  tenant  such  time  as  it  may      consider just and reasonable.... " (emphasis supplied) 165 In this situation it must be held that while the opportunity of depositing  the arrears  of rent  cannot be  denied to  a cultivating tenant  during the  course of  proceedings under sub-section (3), the same is not available as of right under clause (b)  of sub-section 4. The difference in the language used by  the legislature  is  significant  and  not  without purpose. The intention of the legislature appears to be that normally a defaulting tenant must seek the help of the Court all by  himself and that if he does so he must be protected; but that  a defaulting  tenant who waits for payment of rent till he  is sought  to be  evicted by  the landlord  is  not necessarily entitled  to the  same protection. Circumstances may exist  which may  place him at par with a tenant covered by sub-section  (3) but  then it  may not necessarily be so. That is  why it  is left to the discretion of the . C RDo to grant time  to the  cultivating tenant  or to  deny him that opportunity. An example of a case in which no time should be allowed would  be that of a tenant who, although in affluent circumstances at  all relevant  point of time, has failed to make payment  of rent  year after  year in spite of repeated demands  from  an  otherwise  indigent  landlord  and  whose conduct is,  therefore, contumacious calling for no sympathy or concession.  The extension  to him  of the  same facility which is  afforded to a willing tenant under sub-section (3) would be uncalled for and in fact unjust.      Nor do  I find  why the  word "may" occurring in clause (b) of  sub-section (4) be not given its ordinary meaning as denoting the  conferment of  a discretion  on the RDo and be

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equated with  "shall" so  as to make it obligatory on him to grant time to the cultivating tenant.      5. Subject  to the disagreement expressed by me above I concur with the judgment of Desai, J.      MISRA, J. I agree with my learned brother, Koshal, J. N.V.K.    Appeals allowed 166