JOAO XAVIER PINTO Vs. OSWALD J C VELHO

JUDGEMENT

(1.) The petitioner challenges in this petition, the judgement passed in appeal by the third respondent whereby it was held that he has not show sufficient cause and therefore, his eviction of the suit premises had been ordered under section 32(4) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968.

(2.) A few facts may be stated. The respondent No. 1, through his father, entered into an agreement of lease with the petitioner herein on 2nd June, 1969. The rent agreed was of Rs. 200/- per month and the premises were for the commercial purpose of running a barbers shop. The said rent was subject to valuation made by the Revenue Authorities and, accordingly, such valuation was made on 13th August, 1969 and the rent was fixed at Rs. 50/- per month. Inspite of this fixation of the Rent by the Revenue Authorities, the petitioner continued to pay the rent at the rate of Rs. 200/- per month. A new agreement was entered into between the petitioner and the first respondent on 1st March, 1973 and it was agreed, once again, that the rent was of Rs. 200/-. Later on, in the course of the same year 1973, a dispute was raised by the petitioner, for he contended that the rent payable was only at the rate of Rs. 50/- per month and, as such, he had paid rent in excess to the first respondent to the tune of Rs. 7,500/-. He requested therefore, that the said excess, in rent paid by him be adjusted with the rents that became due. Then the respondent No. 1 filed eviction proceedings for non-payment of rent against the petitioner. The petitioner filed his written statement and a few months later, particularly on 15th October, 1974, the first respondent moved an application to the Rent Controller under section 32(4) of the Act praying that the proceedings be stopped and the petitioner be directed to put the first respondent in possession of the premises. It appears that a notice was given to the petitioner and in reply to the said notice, the petitioner showed cause by his application on reply dated 30th January, 1975. His case was that the rent payable was at the rate of Rs. 50/- per month ant that he had paid rents in excess. Therefore, according to the petitioner, there was no reason for granting the first respondents application under-section 32(4) of the Act. He also prayed that an inquiry be held to fix the quantum of the rent. By his order dated 25th October, 1976, the Rent Controller, Goa, North Division, held that no sufficient cause had been shown and therefore, allowed the application of the first respondent and directed the petitioner to hand over vacant possession of the demise premises to the landlord within three months from the date of the order. The petitioner being aggrieved, moved an appeal to the Administrative Tribunal and this appeal was allowed by judgment dated 25th June, 1977 and the case was remanded to the Rent Controller with a direction to decide the application afresh in accordance with law. The first respondent being aggrieved by the said judgment of the Administrative Tribunal, filed a writ petition in the Court of the Judicial Commissioner. The learned Additional Judicial Commissioner by his judgment dated 22nd July, 1980, was pleased to allow said writ petition and therefore, reversing the judgment of the Administrative Tribunal, remanded it for fresh decision in compliance with this order of remand. The Administrative Tribunal decided the case afresh by the challenged judgment dated 24th July, 1965.

(3.) Mr. M.S. Usgaoncar, the learned Counsel appearing for the petitioner contended that the respondent No. 3 failed too appreciate that there was a rent fixed by the Revenue Authorities and therefore, it was not open and permissible to revise the said rent by a fresh agreement. He contended that under section 16 of the Act, that was not permissible and any stipulation to raise the rent fixed by the Revenue Authorities would be hit by sub-section (3) of the said section 16. The learned Counsel further submitted that section 32(1) of the Act provides that no tenant against whom a proceedings for eviction has been instituted by a landlord shall be entitled to contest such proceedings unless he has paid to the landlord or deposited all the arrears to rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building. Sub-section (3) provides that where there is any dispute as to the amount of the rent to be paid or deposited, the Controller or the Appellate or Revisional Authorities, as the case may be, shall, on application made either by the tenant or by the landlord and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited. According to the learned Counsel, although section 32(1) is to be read with Rule 7 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules, 1969, the provision of sub-section (3) is not to be read with the said rule. He submitted that the deposit or payment of the arrears of rent is to be made within 30 days from the service of the notice of the institution of the proceedings, but such requirement of making the application for fixation of the rent in case of dispute, within 30 days does not exists under sub-section (3). Therefore, according to the learned Counsel, even-though the application for holding an inquiry was made by the petitioner beyond that period of 30 days, that is fatal and the Rent Controller and the Administrative Tribunal ought to have seen whether or not, in the circumstances of the case, a sufficient cause has been shown by the petitioner. He contended that the answer to this question has necessarily to be in the affirmative, for the first respondent himself has brought out before the Rent controller a case of a dispute about the amount of the rent. He has indeed averred in his application, that the petitioner was claiming that the rent payable was only Rs. 50/- when, in fact, the rent agreed to be paid was of Rs. 200/- per month. Then, the same case has been brought by the petitioner in his written statement and in the circumstances, the Rent Controller was bound to hold an inquiry to fix what was the rent payable. In the circumstances, where if the rent payable is only of Rs. 50/- as alleged by the petitioner, there will be an excess of rent paid and therefore, there will be no arrears of rent. This being the case, according to the learned Counsel a sufficient cause was shown by the petitioner.