RASU Vs. SPECIAL DEPUTY COLLECTOR REVENUE COURT TIRUNELVELI

JUDGEMENT

(1.) The tenant is the petitioner in these civil revision petitions. An extent of 4 acres forming the western portion out of 6.25 acres of R.S. 43/1 in Ulaganeri village, Madurai North taluk, was taken on lease by him from the second respondent herein, who is admittedly the owner of that property, agreeing to pay rent at 32 bags of 54 Madras Measures (65 Kgs. each per acre per (bogum) and 32 bundles of straw per fasli. In T.C.T.P. No. 202 of 1978 filed under section 3 (4)(a) of the Tamil Nadu Cultivating Tenants Protection Act, 1955 (XXV of 1955) hereinafter referred to as the Act) originally before the Authorised Officer (Land Reforms), Madurai, which was subsequently transferred to the file of the Revenue Court, Tirunelveli, and re-numbered as T.C.T.P. No. 21 of 1979, the second respondent herein prayed for the passing of an order or eviction against the petitioner herein on the ground that the petitioner had not measured the rent as contracted and was in arrears of 28 bags of paddy and 96 bundles of straw in respect of faslis 1386 to 1388. That application was resisted by the petitioner on several grounds which need not be noticed in extenso for purposes of these proceedings. In the application for eviction, an ex parte order of eviction, was passed initially, but on an application at the instance of the petitioner, ex parte order of eviction was set aside and the petition was restored to file. Thereafter, the application for eviction had been adjourned to several dates and ultimately on 11th November, 1980, the petitioner and the second respondent made a joint endorsement signed by them as well as their counsel. Thereunder, the petitioner accepted that he was in arrears of 25 bags of 54 Madras Measures (65 kgs. each bag) and agreed to measure 25 bags or pay the market value thereof to the second respondent on or before 10th January, 1981, and obtain a receipt from him. It was further agreed that if the petitioner failed to do so, fhen he would vacate the land without asking for an extension of time, on the terms of the joint endorsement so made on 11 th November, 1980, the Revenue Court fixed the value of the agreed rent at Rs.1,885 at the rate of Rs.116 per quintal and directed the petitioner to pay the amount of Rs.1,885 to the second respondent on or before 10th January,1981, failing which the second respondent was given liberty to file an execution petition. In that order, it was also stated that no further time will be granted. This order was despatched by the Revenue Court to the petitioner as well as the.second respondent on 20th December, 1980. It is not now in dispute that the petitioner received the order through his counsel (vide paragraph 2 of the affidavit in C.M.P.No.11549 of 1981.). It is common ground that the petitioner did not measure 25 bags of paddy or pay the sum of Rs.1,885 to the second respondent as agreed to by him. In as much as the petitioner did not do so, the second respondent took out an application in E.P. No. 15 of 1981, for delivery of possession of the lands under the cultivation of the petitioner and on 21st April, 1981, the possession of the property under the cultivation of the petitioner was delivered to the second respondent. While in C.R.P. No. 2962 of 1983, the petitioner has challenged the correctness of the order passed by the Revenue Court on 11th November, 1980 on the basis of the joint endorsement, C.R.P. No. 1681 of 1981 questions the propriety of the delivery proceedings.

(2.) The learned counsel for the petitioner contended that the order passed by the Revenue Court though based on a joint endorsement made by the petitioner and the second respondent is vitiated in as much as the Revenue Court has proceeded to pass a rolled up order in that the direction to pay the arrears and the direction to be evicted in the event of non-payment of the arrears have been given In the same order by the Revenue Court at the same time contrary to the provisions of the Act. Such an order, according to the learned counsel for the petitioner, would not only run counter to the provisions of the Act and indeed could not be passed by the Revenue Court even if the party invited the Court to pass such an order. On the other hand, the learned counsel for the second respondent contended that if the application for eviction had run its normal course, then, undoubtedly, the Court would have passed orders strictly in conformity with the provisions of the Act but that since the parties to the proceedings, by a joint endorsement, invited the Court, to depart from the usual procedure and to pass an order in terms of the joint endorsement exercising jurisdiction to pass such an order which normally the Revenue Court did not possess and which constituted a strain upon the procedure of that Court, it was wholly out of its course and such a procedure would really be in the nature of extra cursum curiae and that having invited the court to adopt such a course and pass orders on that basis, it would not be open to the petitioner to challenge the correctness of the order so passed.

(3.) The application for eviction in this case had been filed towards the end of 1978 and the petitioner had filed his statement in opposition to that in February, 1979. Thereafter, the proceedings stood transferred to the Revenue Court, Tirunelveli, and was adjourned to several dates, on 28th February, 1980 owing to the absence of the petitioner as well as his advocate, the petitioner was set ex parte and accepting the affidavit of proof filed on behalf of the second respondent the application was allowed. Thereafter, the petitioner filed an application in I.A. No. 130 of 1980 to set aside the ex parte order of eviction and the ex parte order was set aside on 23rd July, 1980 on payment of costs by the petitioner on or before 5th August, 1980 and the application for eviction was also directed to be posted for enquiry on that day. Even thereafter from 5th August, 1980 upto 18th September, 1980 the application had been adjourned. On 18th September, 1980 the application was posted to 25th September, 1980 for settlement and again it was posted to 14th October, 1980 and 28th October, 1980 the settlement and on 28th October, 1980 the application was posted to 11th November, 1980 when the joint endorsement referred to earlier had been made. Thus it is seen from the records that between 18th September, 1980 till 11th November, 1980 the application has been adjourned only to enable the parties to report settlement: It is in this background that the scope of the joint endorsement and its effect will have to be considered. It is at once apparent that neither the petitioner nor the second respondent was ready with the evidence in order to enable the Revenue Court to proceed with the matter on its merits. On the contrary, the parties had requested the Revenue Court to adjourn the application for purposes of effecting a settlement. That would clearly indicate that the parties were not desirous of proceeding with the petitioner according to the ordinary course of procedure before the Revenue Court in such matters. Eventually, on 11th November, 1980 a joint endorsement, had been made by the petitioner and the second respondent to the effect stated supra. In other words, though normally the application for eviction would have been dealt with by the Revenue Court, on its merits on the evidence in accordance with the procedure prescribed under section 3(4)(b) of the Act,-the parties did not want the Revenue Court to adopt that procedure. Instead, the Revenue Court had been invited by the petitioner and the second respondent by means of their joint endorsement to adopt a course different from the normal procedure in such cases and to pass an order not only directing the petitioner to measure 25 bags of paddy or pay the value thereof computing it at Rs.1,885 on or before 10th January, 1981 but also directing the eviction of the petitioner from the holding in the event of non-payment or failure to measure the paddy without asking for further extension of time even. In the circumstances of this case, it is obvious that the petitioner and the second respondent requested the Court to adopt a procedure not contemplated by section 3(4)(b) of the Act of the rules thereunder, but had requested the Court to adopt a procedure extra cursum curiae. After having so done, certainly, it is not open to the petitioner to turn round and say that the Revenue Court is to be blamed for adopting this very procedure suggested by the petitioner and the second respondent which the Court was invited to follow.