1 IN THE HIGH COURT OF BOMBAY T GOA WRIT PETITION NO.723 OF 2009 Jain Shipping & Ship Builders Pvt. Ltd., Shop No.4 of Depak Mahal, Vasco Da Gama, through Mg. Director Jevan Jain. …. Petitioner V/s Dr. Marian Jose Godinho, Majorda, Salcete, Goa. …. Respondent Mr. Vivek Rodrigues, Advocate for the Petitioner. Mr. A.F. Diniz, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 29/07/2010 ORDER Heard learned Counsel on behalf of the parties. 2. This Writ Petition is directed against order dated 15/10/2009 of the learned Administrative Tribunal, Goa, by which the learned Administrative Tribunal has stopped further proceedings and directed the eviction of the petitioner from the suit premises. 3. Some bare facts may be stated to dispose of this Writ Petition. 4. The petitioner is a tenant of the respondent, in respect of a shop, on payment of rent of Rs.245/- per month. Respondent (landlord, for short) filed an application against the petitioner (tenant, for short) on 2 6/05/1983 on the ground of non payment of rent from January 1977 to February 1983. The tenant was granted an opportunity to pay the rents, by order dated 18/12/1981. The tenant again became defaulter of non payment of rents from April, 1996 to March 1999 and the landlord filed an application on 13/10/1999 presumably under Section 32(4) of the Goa Buildings (LRE) Act, 1968 (Act, for short) and that application came to be disposed of by order dated 22/12/1999. The tenant was directed to hand over vacant possession of the suit premises to the landlord within a period of 30 days. 5. The tenant filed an appeal before the Administrative Tribunal on 13/01/2000, but did not deposit any rent. For the first time before the Tribunal, the tenant filed an application dated 12/03/2004 showing his desire to deposit the rent from 1/07/2000 to March 2004 in the sum of Rs.10,780/-. However, the tenant did not pursue the said application in right earnest. The landlord therefore by reply dated 16/06/2004 urged that notice to show cause under Section 32(4) of the Act, be issued to the tenant and, accordingly, a notice was issued on 12/03/2009. Till then no rents were paid but a reply was filed on 16/06/2009 stating that the tenant was informed by the clerk of the Rent Controller that the file could not be located and though the challans, were taken on record they were not stamped and returned; that the advocate of the tenant was under the impression that the rents were duly deposited until yesterday 3 (i.e. 15/6/2009?) when it became clear that the file from the Rent Controller was already sent to the Tribunal. 6. The learned Tribunal after hearing the submissions made on behalf of both the parties has come to the conclusion that the records were called by the Tribunal only on 13/10/2008 and were received by the Tribunal on 17/11/2008 and therefore it was clear that when the tenant if at all he went to the Rent Controller after June, 2000, the file was still with the Rent Controller. The learned Tribunal also held that the records of the Rent Controller did not disclose the deposits of the challans from January to June 2000 as stated by the tenant. The learned Tribunal held that it was the duty of the tenant, after he had filed the appeal on 13/01/2000, to continue to deposit the rent before the Tribunal which he did not do. The learned Tribunal held that the statements in the reply dated 16/06/2009 were erroneous. The learned Tribunal further held that the tenant was lethargic and the statements made in the reply were not even supported by the affidavit of the tenant. The learned Tribunal further held that no evidence was produced by the tenant as regards deposit of rents till June, 2000 and the tenant had also not clarified as to what steps were taken by him when the file was allegedly not traceable. In other words, the learned Tribunal found that the plea put forward by the tenant, in his reply dated 16/06/2009 was sham, though learned Tribunal did not say in so many words. 4 7. The learned Tribunal also held that the default in payment of rent was persistent and non disclosure of proper facts showed that the stand of the tenant was not bonafide and thus ultimately concluded that the tenant had not shown any sufficient cause for not stopping further proceedings and proceeded to order the tenant to put the landlord in possession of the suit premises as the tenant had failed to comply with the statutory provisions as regards the deposit of rent. The learned Tribunal also referred to the case of E. Palanisamy V/s. Palanusamy reported in (2003 (1) SCC 123) wherein the Apex Court had observed that; “The rent legislation is normally intended for the benefit of tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters.” 8. Shri Rodrigues, the learned Counsel on behalf of the tenant submits that it is the tenant who had filed the application on 12/03/2004 which application remained without being decided by the learned Tribunal. Learned Counsel concedes that a show cause notice was issued to the tenant on 12/03/2009, but it was not mandatory on the part of the learned Tribunal to have ordered the eviction of the tenant as non deposit was not willful. Shri Rodrigues submits that the tenant himself would not have invited an adverse order by filing application dated 5 12/03/2004. Shri Rodrigues further submits that what happened before the Rent Controller as regards non payment of rent need not be considered by this Court as filing the appeal therefrom gives entirely an independent cause of action to the tenant. Shri Rodrigues has placed reliance on the reported decisions of this Court which were relied upon by the Tribunal in the case of Roque Antonio Judas Tadeu Caetano Ribeira V/s. Angelo Cassiano Neves e Souza and 4 Ors. (1989 (2) GLT 313) and Shri Joao Xavier Pinto V/s. Shri Oswald J.C. Velho & 2 Ors. (1990(1) GLT 116). 9. On the other hand, Shri Diniz, learned Counsel on behalf of the landlord submits that the reply filed by the tenant on 16/06/2009 was entirely based on falsehood. Learned Counsel has compared the averments of the said reply with those of application of the tenant dated 12/03/2004, particularly, the averment that the tenant was under the impression that the rents were duly deposited until “yesterday” which averment is necessarily false. Shri Diniz has also submitted that the averment in both the said applications dated 12/03/2004 as well as reply dated 16/06/2009 that the file was sent to the Tribunal has been found to be false by the learned Tribunal by observing that the file was received only on 17/11/2008. If that be so, the learned Counsel submits that there was no cause shown by the tenant to the show cause notice dated 12/03/2009. Learned Counsel submits that the Tribunal has exercised its 6 discretion in accordance with Section 32 (4) of the Act and therefore there is no scope for this Court to interfere with the impugned order in exercise of extra ordinary jurisdiction. Shri Diniz has also placed reliance on the case of N.D. Thandani (dead) by LR's V/s. Arnavaz Rustom Printer and Anr. reported in 2004(1)SCC 656 and the case of Shanti Prasad Jain (D) Through Lrs. V/s. Prakash Narain Mathur (2009 DGLS (Soft.) 500). In the first case, the Apex Court observed as follows; 7. The case at hand projects a picture where in spite of the leaning of the law in favour of the tenant, if anyone deserves sympathy it is the landlord and not the tenant. As already noticed, this is the third round of litigation complaining of default in payment of rent by the tenant. In the first round of litigation the rate of rent was alleged by the landlord to be Rs.160/- per month which was denied by the tenant who pleaded the rate of rent to be Rs.80/- per month only. In the litigation which ended in the apex court, the rate of rent was finally adjudged to have been Rs.160/- per month and not Rs.80/- as was pleaded by the tenant. Not only does the law itself require the tenant to pay or tender the rent month by month, the order of this Court mandated the tenant to clear all the arrears of rent within two months and thereafter to deposit the rent month by month and strictly observe compliance with the orders of the Supreme Court. The tenant did not even thereafter comply with the provisions of Rule 5. Huge amount of arrears accumulated, which were cleared in one go. Even other deposits were not regularly made. The tenant did not keep the landlords informed of the deposits either directly or by complying with the provision of the Rule. The obligation of the tenant to pay or tender the rent cannot be said to have been discharged unless and until the landlords were posted with the information along with particulars enabling them to withdraw the amount. The legal notices served by the landlords were not responded to in the desired manner so as to put an end to their grievance. A claim for eviction founded on the simple ground of default in payment remained pending for years, obviously because of the 7 reluctance and the procrastinating tactics of the tenant. If this is not 'wilful default' then what else can it be? We are clearly of the opinion that the High Court has rightly held the tenant to be a chronic wilful defaulter. The decree for eviction is fully justified (emphasis supplied). 10. Section 32(4) of the Act provides that if any tenant fails to pay or deposit the rent as aforesaid, the Controller or the appellate or Revisional authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building. 11. In the case of Shri Joao Xavier Pinto V/s. Shri Oswald J.C. Velho & 2 Ors. (supra) this Court has held that sufficient cause to be shown by the tenant is not for the purpose of his failure to pay but for the purpose of stopping or not all further proceedings and making an order directing the tenant to put the landlord in possession. Again, in Roque Antonio Judas Tadeu Caetano Ribeira V/s. Angelo Cassiano Neves e Souza and 4 Ors. (supra) this Court has observed that for the purpose of Section 32(4) some of the factors which would be relevant for exercising power, would be whether the default is for a short period or long period, whether the default is willful or unintentional, whether the default is stray or persistent, whether payment was made at the earliest opportunity or after cantankerous contest, whether the default was bonafide or to harass the landlord; in short, what has to be found is 8 whether in the facts and circumstances of the case, there was reasonable cause for non-payment or deposit of rent within such time as is prescribed. 12. Admittedly, the tenant did not pay any rent for almost 4 years after the appeal was filed on 13/01/2000 before the Tribunal. That the tenant filed the application by himself on 12/03/2004 can give him no indulgence and is no consideration for a tenant who was issued the show cause notice under Section 32(4) of the Act. The tenant was unable to provide any sufficient cause for the purpose of stopping further proceedings, as the reply filed by him has been found to be based on false averments. I am unable to accept the submission that the tenant's conduct in non payment of rent has to be seen only before the Tribunal. In my opinion, the past conduct of the tenant in not paying the rent would also be relevant factor in order to find out whether the default was bonafide or in the words of the Apex Court to find out whether a tenant was a chronic, willful defaulter. The tenant's eviction was sought for non payment of rent from January, 1977 to February, 1983. Then there was an order dated 18/12/1991 before the Rent Controller. Then again there was the order of eviction of the Rent Controller dated 22/12/1999 for non payment of rent from April, 1996 to March, 1999 for 3 years and yet the tenant on filing the appeal on 13/01/2000 before the Tribunal chose not to deposit the rent for another four years, until the 9 application dated 12/03/2004 was filed. The tenant too was fully aware that an order of eviction passed against him by the Rent Controller on his failure to deposit the rent as a normal prudent person would have immediately filed an application, on filing the appeal to deposit the rents which were over due and continue to deposit the same as required by Section 32(4) of the Act. As already stated, the cause put forward in reply dated 16/06/2009 was entirely based on falsehood, apart from the fact that, it was otherwise not supported by any affidavit. 13. Considering the facts of the case, therefore, the tenant appears to have been a chronic willful defaulter in not paying the rents due and therefore not entitled to continue in possession of the suit premises. In my view, no fault can be found with the impugned order. 14. I find there is no merit in this Writ Petition and, consequently, the same is hereby dismissed. Costs by petitioner in favour of the respondent, which are quantified at Rs.5,000/-. At the request of the petitioner, the operation of this judgment is stayed for a period of 4 weeks from today. N.A. BRITTO, J. NH/-