DAMODAR CAXINATA NAIQUE Vs. ALVARO DOS REMED

JUDGEMENT

(1.) THE present appellants are the heirs of the original defendant and the present respondents are the heirs of the original plaintiffs. The original plaintiffs filed a suit against the original defendant being Civil Suit No. 30/69 before the Court of the Civil Judge S.D., Panaji. The suit was filed under Decree No. 43525 of the Portuguese Rent Legislation then applicable to the area where the suit house was situated. The cause of action insofar as the Plaintiffs were concerned was that the Defendant had failed to deposit the rent reserved and further the rent had also not been paid on time. The original Plaintiffs in paragraph 14 of the plaint claimed an amount of Rs. 8,665.32 on various counts as arrears of rent. The original Defendant contested the claim of the Plaintiffs. The Defendant contended that there was another proceeding between the parties which was disposed by judgment and decree dated 22.12.63 by making some observations. The said observations though pleaded are reproduced herein for the sake of narration:

(2.) BOTH the parties led evidence in the matter. The Trial Court was thereafter pleased to dismiss the suit filed by the original plaintiff against which the original plaintiff preferred an appeal to the Court of the Judicial Commissioner. By Judgment dated 31st January, 1981 in First Civil Appeal No. 101/77 the Acting Judicial Commissioner was pleased to set aside the judgment and decree of the trial Court and remand the suit for disposal afresh in the light of the observations made in the judgment. The questions framed by the Court of the Judicial Commissioner were:

(3.) AGGRIEVED by the said judgment and decree of the trial Court, the original defendant preferred appeal before this Court which was numbered as First Appeal No. 10/88. The learned Single Judge by his judgment dated September 24, 1993 was pleased to dismiss the appeal preferred by the original defendant. The learned Single Judge held that it was true that the Plaintiff had not disputed the deposit of rent made by the original Defendant. The learned Judge then proceeded to say that what was disputed by the Plaintiff was the validity of this deposit i.e. the manner and the time of such deposits made which by no means can be said as having been done in accordance with the provisions of the Decree. The Court thereafter noted that though by Judgment dated 22.12.63 in the earlier proceedings the original defendant was permitted to deposit the rents in Court subject to the settlement of accounts and fixation of actual rent that could not dispense the Defendant from making payment of rent directly to the lessor i.e. the original plaintiff now represented by respondents, at least after the decision of the Administrative Tribunal in 1967. It may be noted that the Administrative Tribunal by its order dated 15.4.67 had determined the rent of the premises to be Rs. 96/ - per month. The learned Single Judge then proceeded to hold that as the original defendant had not deposited the rents in Court, that the same having not been offered to and refused by the landlord and further the failure in the original defendant notifying the landlord after the deposits were purportedly made, have rendered the said deposits totally invalid in the eyes of law. The learned Single Judge thereafter proceeded to hold that as the deposits made were not valid in the eyes of law and therefore they could not exonerate the appellant from eviction and consequently he could not find fault with the decision of the trial Court. The learned Single Judge also rejected the plea of res -judicata raised by the original defendant based on the proceedings which were disposed of by judgment dated 22.12.63. The learned Single Judge also considered the provisions of Section 59 of the Rent Act and held on consideration of the judgments cited before him that Section 59 was not in the nature of minor modification and/or clarification but a totally new provision and in view of that, provisions of Section 59 could not be attracted to proceedings filed under Decree No. 43525 insofar as eviction on the ground of non -payment of rent. For the aforesaid reasons the learned Single Judge was pleased to dismiss the appeal and uphold the judgment of the trial Court.