(1.) THE challenge in this writ petition is the judgment of the Administrative Tribunal dated 10th May, 1990 in Eviction Appeal No. 6 of 1985 which has affirmed the judgment and order of the Rent Controller, Goa North Division, Panaji, dated 23rd April, 1984 in Case No. Rent/122/82. By the aforesaid order the Rent Controller granted an application filed by the respondent No. 1 (hereinafter called the respondent) under section 32 (4) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter called the Act) and directed the petitioners to vacate the suit premises within thirty days from the receipt of the order and hand over peaceful possession of the premises to the respondent.
(2.) THE case of the petitioners is that the petitioner No. 1 is a registered partnership firm and the petitioner No. 2 is one of its partners. The petitioner is a lessee of the respondent in respect of one of the divisions of the building situated at Swami Vivekanand Road, Panaji, consisting of two divisions and which bears Municipal House No. 23 in Ward No. 11 of Panaji City. The said division was leased to the petitioner by the respondent exclusively for residential purpose. On 9-11-1982 the respondent filed an application before the Rent Controller for eviction of the petitioner under section 22 (2) (b) (ii) and (c) of the Act on various grounds, namely, on the ground of change of user and acts of damage. The petitioners filed their reply to the application on 4-3-1983. Thereupon on 24-3-1983 the petitioners filed an application to the Rent Controller which is dated 18-3-1983 seeking permission to deposit the arrears of rent from January and February, 1983 as well as future rents. On 23rd April 1983 the respondent moved an application before the Rent Controller under section 32 (4) of the Act alleging that the petitioners had made default in the payment of rents due for the months of January, February and March, 1983. The petitioners replied to this application by their application dated 18-11-1983. In the meantime the respondent filed his reply to the petitioners application to deposit arrears of rents by his application dated 25-6-1983. In his application to deposit the rents the petitioners had stated that rent for the month of January, 1983 was paid on or about 4--2-1983. However when the petitioners approached the respondent with the rent of February, 1983 on or about 5th March, 1983 the respondent refused to accept the same. Thereafter as the rent for the month of February, 1983 had been refused the application was made on 24-3-1983 to deposit the rents in respect of both February and January, 1983. The rent of January, 1983 was sought to be paid again inspite of the fact it had already been paid earlier because no receipt has been issued to the petitioners by the respondent in respect of the premises. In reply to the petitioners application to deposit the rent in arrears the respondent stated that the rent for December, 1982 had been paid to him in cash in January, 1983 and rent for January, 1983 had not been paid at all neither the rents for January and February, 1983 offered by the petitioners and refused by him as alleged. The Rent Controller by the impugned order dated 23-4-1984 held that the rents of January and February, 1983 were not paid and as such the petitioners had forfeited their right to contest the proceedings. The Rent Controller further held that the excuse given for non-payment of rents could not be accepted and therefore they were liable to be evicted. The petitioners then approached the administrative Tribunal in appeal wherein several contentions were raised. However the Tribunal by the impugned judgment dated 10th May, 1990 dismissed the petitioners appeal by holding that there was a default in the payment of rents for the months of January and February, 1983 without sufficient cause shown by the petitioners.
(3.) ON behalf of the petitioners, Mr. Rebello, learned Counsel has submitted that both the impugned judgments were delivered by the courts below without any material available on record to show that there has been a persistent or wilful default committed by the petitioners in respect of payment of rents for the months of January and February, 1983, The petitioners had made a case before the Rent Controller that they had paid rent of January, 1983 and taken steps also to pay to the respondent rent of February, 1983 which was refused to be accepted by the respondent. Neither the Rent Controller nor the Tribunal in appeal considered this aspect of the petitioners case and it appears that the impugned orders were passed on the assumption that the power to be exercised by them under section 32 (4) of the Act was just a mandatory one without taking into consideration that the petitioners had shown sufficient cause in delaying payment of rents of January and February, 1983. The learned Counsel invited my attention to the petitioners application dated 18-3-1983 which came to be filed by them only on 24-3-1983. It was submitted that in this application the petitioners had stated that after the institution of the application for eviction by the respondent the petitioners had paid to him the rent in respect of the month of December, 1982 by cheque and the rent for the month of January, 1983 was paid in case on or about 4th February, 1983. But when the respondent was approached by the petitioners with the rent for the month of February, 1983 on or about 5th March, 1983 the respondent refused to accept the same on the ground that the proceedings for eviction were pending against the petitioners. In the said application the petitioners had stated that the respondent was not issuing receipts in respect of the payment of rent every month but instead a consolidated receipt for 2, 3, 4 or 5 months together was being passed depending upon the respondents convenience. As such no receipt for the payment of rents for the month of December, 1982 and January, 1983 was issued by the respondent and since the respondent had refused to accept the rent in respect of February, 1983 they were constrained to make this application to allow them to deposit the rents in the Court during the pendency of the proceedings. Since in respect of the payment of rent for December, 1982 by cheque there was documentary evidence to show that the rent had been paid but in respect of January, 1983 which has been paid in cash no receipt has been issued by the respondent. The petitioners had no evidence to show the said payment and therefore they prayed that they should be allowed to deposit the rent in respect of the month of January, 1983 also in Court. The learned Counsel also invited my attention to the respondents reply to this application dated 25-6-1983 in which it is contended by the respondent that the rent of December was paid by the petitioners by cash only on 19-1-1983; that no rent was paid by the petitioners to him in respect of the months of January and February, 1983 and that the petitioners application for deposit of rents had been also made beyond time. My attention was also drawn by the learned Counsel to the respondents application under section 34 dated 24-3-1983 and the petitioners reply dated 18-11-1983 wherein the petitioners sought to explain the delay in paying the rents as alleged by the respondent. It was submitted by learned Counsel that the petitioners had filed their application in the month of March, 1983 to deposit rent due on the ground of the respondents refusal to accept rents and/or issue receipts of the rent already paid even before the respondent filed his application under section 32 (4) of the Act in the month of April 1983. It was urged by learned Counsel that the Rent Controller while passing his order has grossly misdirected himself on the question as to whether under section 32 (4) of the Act the power conferred to the Rent Controller was compelling was compelling him to stop the proceedings or was only an enabling power to do so i. e. whether the power to be exercised by the Rent Controller under section 32 (4) of the Act was a mandatory power or a directory one. It was also contended by the learned Counsel that the order of the Tribunal also has overlooked that in the month of December, 1982 the petitioners have alleged although the payment had been made by cheque the respondent did not issue any receipt to them. According to the learned Counsel the expression shall in section 32 (4) of the Act has been interpreted by the Court as may. Besides the Tribunal has overlooked that the alleged default was for a short period of two months only i. e. January and February, 1983 as well as the fact that the application for eviction was filed by the respondent not on the ground of non-payment of rents but on a different ground which has nothing to do with any delay in paying the rents. The learned Counsel also urged that nowhere and at no time the respondent has stated that the petitioners have acted in the past in a contumacious manner or their conduct has caused hardship to the respondent by failing to pay rents regularly to him in this respect. The learned Counsel has drawn my attention to the case of (Rogue Antonio Judas Tadeu Caetano Ribeiro v. Angelo Cassiano Nevese Souza and 4 others) 1989 (2) Goa Law Times 313. This was for the purpose of showing that it was not mandatory for the Rent Controller to stop all further proceedings and to direct the tenant to put the landlord in possession of the leased premises in case of every default on the part of the tenant and that the tenant was entitled to satisfy the Court that circumstances exist in view of which the Court ought not to make an order under sub-section (4) of section 32 against him. Thus the power vested in the Rent Controller as per the said ruling to stop proceedings and direct the tenant to put the landlord in possession of the building was just a directory power and not a mandatory one. In the said decision some factors were mentioned which would be relevant for exercising this power namely whether the default was for a short period or for a long period, whether the default is wilful or unintentional, whether the default is stray or persistent, whether payment was made at the earliest opportunity or after cantankerous contest, whether the default was bona fide or to harass the landlord. The learned Counsel urged that applying the test of this ruling it could not be said that in the instant case the petitioners have not made the payment of delayed rent at the earliest opportunity or that this payment was done after cantankerous contest or that the default was a persistent or mala fide meant to harass the respondent and/or even that the default was for a long period. According to the learned Counsel if each of these tests had been considered by the courts below no doubt that the petitioners prayer that the delay should be condoned and respondents application rejected ought to have been allowed. It was urged in this respect that after the service of the notice of eviction proceedings the petitioners had paid the rent of December in the month of January and even prior to the respondent filed his application under section 32 (4) of the Act had sought permission of the Controller to deposit the rents due in the month of January and February as well as future rents. Thus, the learned Counsel said, there was no case of cantankerous contest on the part of the petitioners. My attention was drawn by the learned Counsel on another case of (Shri Joao Xavier Pinto v. Shri Oswald J. C. Velho and 2 others) 1990 (1) Goa Law Times, 116 : 1987 (1) Bom. C. R. 113. This was for the purpose of showing that section 32 has been enacted to protect the interest of the landlord to secure rent from cantankerous tenants who fail to pay or deposit before the Rent Controller or the Appellate or Revisional authorities so that landlords are not driven to file different proceedings for recovery of rents in another forum. Learned Counsel has drawn my attention to one more decision in the case of (Satyavijay Anna Tandel v. Administrative Tribunal of Goa, Daman and Diu) 1990 (XCII) Bom. L. R. 580. This was for the purpose of showing that section 32 (4) of the Act must be resorted to sparingly because its provision is applicable in terrorem to check and correct contumacious conduct on the part of the tenants and that it is applicable in such cases where the tenant despite opportunities being given to him and despite the order to deposit, refuses or neglects to deposit the rent then due in Court. In the said judgment it has been held that if on the date of the application the tenant has deposited all the rent due, there is no question of the Rent Controller passing any further order, virtually evicting a tenant without a trial. Learned Counsel contended that the petitioners are fully covered by this judgment because the petitioners had made their application to deposit the arrears of the alleged rent due even before the respondent filed his application to stop the proceedings for their failure to pay rents for the months of January to March, 1983. Therefore the question of the petitioners showing cause as to why the proceedings should not be stopped on this ground need not subsist because from their own application to deposit the rents it was clear that on the date the respondent has filed his application under section 32 (4) of the Act there was no default on the part of the petitioners and only technically it could be said that such default could exist since till that time no order had been passed on the petitioners application to make the deposit of the arrears of rents due. It was therefore contended by the learned Counsel that in this background the order of the Rent Controller and for that matter of the Tribunal also would show that none of the tests which was bound to be applied by them as per the rulings cited while entertaining an application under section 32 (4) of the Act were even considered by the courts below. Thus, learned Counsel urged, once the record would show that there could not be said that there was any act on the part of the petitioners which could be held as contumacious or that their conduct would be held as cantankerous there was no reason not to hold that the petitioners had shown sufficient cause for any delay in the payment of rent due.