SHABAJI BABU RIVONKAR Vs. VITHAL BABU KAUTHANKAR

JUDGEMENT

(1.) -THE petitioners herein filed a suit for declaration that they are the prospective purchasers of the suit house as the respondent has agreed to sell to them the said house for the consideration of Rs. 5,000 under an oral agreement entered into in the year 1974. Alongwith the plaint, the petitioners sought a temporary injunction restraining the respondent herein from evicting them from the suit house. By his Order dated 27th January, 1987, the learned Civil Judge, Senior division, Vasco de Gama, dismissed the said application for injunction. Aggrieved, the petitioners filed an appeal against the said Order of dismissal to the District Court, South Goa. The learned Additional District judge who dealt with the said appeal, affirmed the order of the trial Court by the judgment dated 14th July, 1987. It is against this judgment that the present revision application is directed.

(2.) IT will be necessary to make a brief reference to the relevant facts. The petitioners were occupying three rooms in the suit house and eviction proceedings had been instituted against them by the respondent on the ground of non-payment of rents. Resisting these proceedings, the petitioners raised a case that they were not tenants of the said house, but they were occupying it as prospective purchasers since under an oral agreement entered into in the year 1974, the respondent had agreed to sell the suit house to them for the consideration of Rs 5,000, out of which Rs. 3,000 had already been paid. The Rent Controller acting under the proviso to section 21 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction)Control Act, 1968, held that the claim of the petitioner was not bona fide. The said proceedings continued and in the course thereof, an application under Section 32 (4) of the Act was moved by the respondent and ultimately, eviction of the petitioners was ordered under the said provision of law. Sometime later, the petitioners moved the Civil Court with the present suit most conveniently omitting to mention that they had claimed that the relationship of landlord and tenant was not existing and that the rent Controller has decided the said claim against them and ultimately ordered their eviction.

(3.) I already mentioned that both the Courts below dismissed the application of the petitioners for temporary injunction. It may be convenient and useful to further mention both the Courts held the view that the petitioners had failed to make out a prima facie case. In fact, the learned trial Judge, after making a reference to the order of the Rent Controller whereby it was held that a relationship of landlord and tenant existed, proceeded to observe that reference to this relevant order and to the eviction order has not been made in the suit. He also held that there is no prima facie evidence of the existence of the orai agreement and no affidavit has been filed. He further observed that the house tax and electricity bills were being paid in the name of the respondent herein and therefore, there was nothing to support the case of the petitioners. In his turn, the learned Additional Sessions Judge observed that no receipts of payment of the earnest money had been produced and that the explanation therefore, had been that the respondent had forcibly taken back the said receipts from them. The learned Judge observed that it was rather strange that the petitioners had not reacted against this alleged forcible taking back of the receipt either by way of filing a civil suit or a criminal complaint. He also mentioned that although it is alleged that a sale deed was provided, the same was not produced and in any case the same was not signed by the respondent. Finally, the learned Judge noted that it is the case of the petitioners that they had paid earnest money to the tune of rs. 3,000 and that some documents had been made as regards a loan of rs. 3,000 plus a sum of Rs. 4,500 against the suit house. The learned Judge therefore, observed that although the case of the petitioners themselves is that this consideration was of Rs. 5,000, they came with a case which is in variance since they said that they advanced towards the purchase of the house an amount of Rs. 7,500 The learned Judge also observed that the orders of the Rent Controller had not been brought to the notice of the Court and that the petitioners had not reacted in any manner against the said orders. For all these reasons, the learned District Judge held the view that, in fact, no prima facie case had been made out and consequently there was no reason for interference with the order of the trial court.