NARSI DAMAJI SOMAIYA Vs. RAMDAS GOVIND KAMAT

JUDGEMENT

(1.) THE challenge in this petition is the order of the Administrative Tribunal dated 23-3-1990 in Eviction Appeal No. 38 of 1988 dismissing the petitioners application for condonation of delay in filing the appeal against the order of his eviction passed ex parte by the Additional Rent Controller on 23rd June, 1988 in Case No. Bldg/3/arc-III/88.

(2.) THE case of the petitioner is that by a deed of lease dated 14-3-1984 the respondent No. 1 (hereinafter called the respondent) let out to him shop No. 1 in his building known as Samadhan Co-operative Housing Society Ltd. , at Malbhat, Margao, Goa, on a monthly rent of Rs. 800/ -. Subsequently another shop being shop No. 2 in the very some building was leased to the petitioner on a monthly rent of Rs. 500/ -. The petitioner is a permanent resident of Bombay and the suit shops are being used by him as office-cum-godowns for the purpose of his business of transportation of goods. On 26-2-1988 an application was filed by the respondent for the eviction of the petitioner before the Additional Rent Controller on the ground of non-payment of rents. A notice fixing the date of hearing on 25-4-1988 was sent to the petitioner by registered post at the address of the suit premises which were leased to him, namely, shop No. 1 on the ground floor of building A of Samadhan Co-operative Housing Society. The notice was returned unserved and the matter was adjourned from 25-4-1988 to 5-5-1988 with an observation that the matter was being adjourned for alternative summons on the suit premises through the Mamlatdar of Salcete. On 5-5-1988 the Additional Rent Controller ordered the case to proceed ex parte against the petitioner after observing that the petitioner had failed to appear although no order was passed holding that he was either duly served or not. The matter was then adjourned to 19-5-1988. On that day the Rent Controller recorded the deposition of the respondent and adjourned the case for arguments on 24-5-1988 and thereafter on 23-6-1988 on which date the eviction order was passed against him. It appears that prior to that the notices were sought to be served on the petitioner by substituted service by pasting them on the suit premises although the petitioner disputed that they were actually pasted on the premises. After the eviction order was passed on 23-3-1988 a notice dated 30-8-1988 was pasted on the suit premises on 1-9-1988 stating that the actual eviction of the premises would be carried out. This notice dated 30-8-1988 seems to have been issued by the Controller consequent upon an application filed by the respondent for execution of the eviction order. It was only on 1-1-1988 after the pasting of that notice that the petitioner came to know for the first time of the institution of the eviction proceedings and the order of eviction passed therein. On 2-9-1988 the petitioner filed an application for stay of the eviction order before the Rent Controller who, by his order dated 5-9-1988, stayed the execution proceedings for a period of 30 days. On 19-9-1988, after obtaining a certified copy of the judgement and order dated 23-6-1988 of the Rent Controller, the petitioner filed an appeal against the said judgment and order before the Administrative Tribunal along with an application for condonation of delay and a further application for stay. The application for stay was granted ex parte and a notice was issued to the respondent for filing his say on the application for condonation of delay. The main Eviction Appeal was registered as Eviction Appeal No. 33 of 1988. Thereupon the tribunal by judgment and order dated 23-3-1990 which is impugned in this petition along with the order of the Rent Controller rejected the petitioners application for condonation of delay on the ground that no sufficient cause for condoning the delay had been made out by him. While so holding the tribunal observed that the petitioner had not been able to substantiate his case on account of his failure to file his personal affidavit to this effect and that he had sought to justify the delay merely on the basis of an affidavit of his constituted power of attorney.

(3.) SHRI Lotlikar, learned Counsel for the petitioner, has made several grievances against the impugned judgments and orders of both the Administrative Tribunal and Rent Controller. It was firstly urged by the learned Counsel that the Tribunal failed to appreciate that the petitioner was sought to be served by substituted service inspite of the fact that no order has been passed by the Additional Rent Controller treating the said service as valid and effective. Therefore the tribunal ought to have held that the petitioners appeal was not even barred by limitation since in the circumstances the limitation period for the petitioner ought to have been held as commencing from the date of his knowledge of the eviction order which was 1st September, 1988 when he learnt that the said order already passed against him was bound to be executed. The tribunal also overlooked the fact that the petitioner had not been served personally in the proceedings and he being a permanent resident of Bombay it was not possible therefore to say that he had deliberately remained absent from proceedings which were ordered to proceed ex parte against him. As such the learned Counsel urged that it was only fair and proper that the petitioner should be allowed to contest the proceedings because the ex parte order passed against him would result in his eviction from the premises in clear violation of principles of natural justice. The learned Counsel submitted that therefore the first point which is to be considered in this case was to find out whether the procedure followed by the Rent Controller to serve the first notice of the proceedings to him has been done according to the rules which regulate such proceedings. In this respect the learned Counsel invited my attention to Rule 10 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules, 1969 (hereinafter called The Rules) which prescribes the manner of giving or serving notices of orders and provides that every notice under the Act may be served either by tendering or delivering a copy thereof or sending a copy by post by registered post A/d to the person on whom it is to be served or its authorised agent or if service in the manner aforesaid cannot be made, by affixing a copy thereof at his last known place of residence. On behalf of the petitioner it was then contended that admittedly in this case the first notice was addressed by the Rent Controller to the place of the leased premises being thus obviously defective. Thereafter the second notice of substituted service which has been allegedly pasted in the suit premises could not be said as being a notice at all because, apart from the fact that the petitioner is disputing that the pasting of that notice was done, in this respect the Rent Controller was supposed to record prior to that his satisfaction that personal service of the notice was not possible. Further even after the pasting of that notice the Rent Controller has failed to record his satisfaction that the service of the notice by substituted service had been duly complied with. Further though the Rent Controller has purportedly proceeded with the case ex parte against him he has done so without passing any formal order directing that the case should go ex parte. Therefore the limitation against the petitioner would run only from 1st September, 1988 when the petitioner came to know for the first time of the order of eviction and thus his application for condonation was to be held within time. The learned Counsel made it clear that his application for condonation was done without prejudice to his contention that the appeal was within time. It was further contended by the learned Counsel that the eviction order was pronounced in the open Court and no communication was sent to him. After the alleged pasting of the notice on the suit premises the next pasting was done in respect of the notice of eviction. The tribunal has dismissed his application for condonation on the sole ground that the affidavit produced by him in support of his lack of knowledge about the proceedings was sworn not personally by the petitioner but by his power of attorney. In this respect the learned Counsel submitted that it is nobodys case that after the order of eviction was passed the same was communicated to the petitioner except by pasting on the suit premises the notice regarding the execution of the said order on 1-9-1988. The learned Counsel reiterated that although the eviction order was passed on 23-6-1988 the same was not known to him for lack of communication till he came to know about the notice of the execution on 1-9-1988. That apart, the learned Counsel urged, the application for condonation of delay should have been done in terms of the rules, namely, Rule 11, either personally or through an authorized agent. In the instant case the only authorized agent, that is to say, the petitioners power of attorney was a person locally available in Goa to do so since the petitioner is a permanent resident in Bombay. Thus, according to the learned Counsel, the petitioner could have known about the eviction order only through his representative in Goa and therefore it was only his representative who could have told him when the notice became known to the petitioner through the said power of attorney. Besides the learned Counsel submitted that nowhere the respondents sought to say that the petitioner had come to know about the order earlier, i. e. , prior to 1st September, 1988 or at any other given point of time. Thus, the learned Counsel concluded, since there was no valid service of the original notice or even through substituted service there could not be said there was any delay. The pasting of the notice in the suit premises being illegal no valid service of the eviction application was to be held as having been done by the Rent Controller. Hence, all the proceedings which followed the pasting or irregular service were contrary to the principles of natural justice. By way of abundant caution the learned Counsel tried to impress upon me that, even assuming that the service was valid, even so in the facts and circumstances of the case this Court should allow a fair trial to the petitioner and the landlord was not required to take advantage of the ex parte order passed by the Rent Controller so as to get the unfair situation on which the petitioner was placed consequent upon that order to be perpetuated.