PETER GONSALVES Vs. VIJAYANAND RAGHUNATH HEDE

JUDGEMENT

(1.) THE petitioners are tenants against whom an order of eviction was passed by the Addl. Rent Controller, Sub-Division Salcete, Margao, Goa in Case No. BLDG/arc-I/17/1986 which was confirmed by the Administrative Tribunal in Eviction Appeal No. 40/93 by judgment dated 30-6-1994. Both these orders are under challenge in this writ petition.

(2.) THE learned Counsel for the petitioners mainly based his argument by stating that there is no sufficient pleading in the petition to constitute the ingredients required for eviction under section 22 (2) (f) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter referred to as the Act) namely the non-occupation of the suit premises for a continuous period of four months without reasonable cause. Elaborating the argument the petitioners counsel drew my attention to paragraph 7 of the application filed by the respondent No. 1 before the Rent controller which is extracted below:-

(3.) I am afraid this kind of pleadings and evidence by either side will not be sufficient to prosecute the application for viction properly and legally. It has come out in evidence as I said earlier that the premises are not used as it was used by the petitioners husband. The petitioner is trying to establish that the building is not kept closed as alleged by the respondent. It is kept open, but for what purpose and how the premises are put to use; whether any commercial activity is going on or any profession is being practised in that building is lacking in the pleadings and also in the evidence. There are no valid and sufficient material for the authorities below to take a decision either way. With the available evidence both the courts below, unmindful of whether such evidence will be sufficient to pass an order of eviction, passed the impugned orders. One important aspect has not been examined by the authorities which is usually relevant in a case like this is whether the premises continued to be used for useful and commercial purpose by the tenant even after the death of the original tenant. In this context learned Counsel for the respondent drew my attention to the decision of the Supreme Court reported in (M/s. Babu Ram Gopal and others v. Mathra Dass) A. I. R. 1990 S. C. , 879. Even though the case decided was whether a landlord is entitled to a decree even if the tenant has re-occupied the premises before the eviction proceeding was commenced, following observations made by the Supreme Court in this context is very relevant for our purpose. Para 3 of the judgment reads thus: