PEDRO SANTAN BRAGANZA Vs. ZACHARIAS MANUEL JORGE

JUDGEMENT

(1.) PEDRO Santan Braganza was a baker. He had his humble abode confined to 125 square metres on the ground floor of a building situate at Nagvaddo. The lease arrangement was subsisting even from the time of his ancestors. A formal lease deed had been executed on 15-10-1948. The short space was used both for his bakery and as his family residence.

(2.) THE landlord instituted a suit, being Suit No. 192 of 1969, for eviction. Violation of the lease conditions and the intention of the landlord to reconstruct the building were some among the contentions urged. A suit of that nature was governed by the provisions of the Portuguese Law Regulation Rent and Leases of Buildings Decree No. 43. 525 dated 2-6-1961. The right of tenant to be intimated about the completion of the reconstruction by the landlord, following a decree for eviction, was one such important right guaranteed under the law which governed the parties at that time. The suit was decreed on 12-1-1972. It taken up in appeal before the Judicial Commissioner. A Compromise was reached between the parties during the pendency of the appeal and this led to the passing of a compromise decree dated 23-8-1974. The landlord was obliged thereunder to give on lease a portion of the ground floor of the newly constructed building of an equal area as lease premises. The building was vacated on 25-8-1976. The landlord did not commence or complete the construction of the building. The term in the compromises decree to give to the tenant an equivalent space of the vacated premises was honoured by the landlord only in its breach. The request of the tenant to the landlord for compliance with the consent decree, as could be easily understood in similar circumstances, was turned down by the landlord. The tenant, driven to the wall, filed a suit, being Special Civil Suit No. 38 of 1982 before the Civil Judge, Senior Division, Panaji. The compromise decree was the foundation for the cause of action. The landlord resisted the suit with manifold contentions. The ineffectiveness of a compromise decree when tanant did not voluntarily vacate, necessitating thereby the regular execution proceedings by the landlord , was one such. A technical contention about the non-maintainability of the suit on the ground that the remedy of the tenant was only to execute the consent decree and not to institute a separate suit for its enforecement, in the light of provisions of section 47 of the Code of Civil Procedure, was also forcefully projected. There were subsidiary contentions on the quantum of damages and compensation claimed by the tenant. The trial Court decreed the suit. The tenant was declared entitled to have a lease from the landlord in relation to a carpet area of 109 square metres with the difference of 5 square metres more or less. Consequential directions were also given therein. A sum of Rs. 21,600/- was made payable on account of loss of income from the bakery from 1-9-1978 to 31-7-1984 with provision for interest as detailed therein. The judgment did not give satisfaction either to the plaintiff or to the defendants. The landlord filed First Civil Appeal No. 68 of 1984. He protested against the substantial part of the decree. The tenants grievance related to the quantum of compensation. The parties agitated all contentions before the Appellate Court. By Judgment dated 19-11-1985, this Court rejected all the contentions of the landlord except in relation to the maintainability of the suit. It took the view that the compensation payable should be enhanced. As against Rs. 5/- awarded by the trial Court, the Appellate Court granted compensation at the rate of Rs. 50/ -. The ultimate result was, however, favourable to the landlord, as the suit was found to be not maintainable at all. This decision is complained of by the tenant in Letters Patent Appeal No. 9 of 1986. The landlord has ventilated his grievance in relation to the enhancement of the compensation in his Letters Patent Appeal No. 16 of 1986.

(3.) WE may at the outset note that none of the ten issues raised before the trial Court related to the maintainability of the suit. Issue No. 2 read as follows:---