1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 610 OF 2009 1) Smt. Kusum Ulhas Desai wife of Shri Ulhas Desai of full age, 2) Shri Ulhas Desai son of late Datta K. Desai, 56 years of age, both residents of House No.103, Altos de Pilotes, Near Saldanha Typing Institute, Panaji- Goa. .. Petitioners Versus 1. Shri Exaltation Santa Cruz Fernandes, son of pascoal Fernandes, resident of Lobo Building, Flat No.4, 18th June Road, Panaji-Goa; 2. Smt. Lydia Deodita Fernandes wife of Exaltation Fernandes 3. Shri Pascoal Fernandes, 4. Smt. Honarita Pereira, 5. Joseph Fernandes 6. Doris Fernandes, 7. Walter Virgilo Fernandes, 8. Ida Fernandes, 9. Terry Rego, 10. Olga Rego, 11. Denis Rodrigues, 12. Hilda Rodrigues, 2 13. Sara Fernandes Respondent Nos. 2 to 13 represented by their Attorney – Respondent No.1, resident of Flat No.4, Lobo Building, 18th June Road, Panaji- Goa; 14. The President The Administrative Tribunal, Goa Vaidya Hospital Building, III floor Near Municipal Market Panaji-Goa; 15 The Addl. Rent Controller (H.Q), Colletorate, I floor, Panaji- Goa .. Respondents. CORAM :- U. D. SALVI, J. DATE OF RESERVING THE ORDER: 27 th January, 2010. DATE OF PRONOUNCING THE ORDER : 28 th January, 2010. ORDER : The petitioners tenants holding a residential house belonging to the respondent Nos. 1 to 13 on monthly lease rent of Rs.300/- have moved this petition challenging the legality and propriety of the order dated 03.08.2009 passed by the Administrative Tribunal Goa in Eviction Appeal No.46/2004 stopping the proceedings in Eviction Appeal No.46/2004 under Section 32(4) of the Rent Control Act and directing the appellant to hand over the vacant possession of 3 the suit premises to the respondents. 2. The learned Administrative Tribunal, upon taking the complete survey of the facts and circumstances in the matter between the parties, made studied observations that the petitioners/ appellants were at all time negligent in depositing the rent due during pendency of the proceedings before the Lower Court and willfully continued to commit defaults in payment/ deposit of arrears of rent before it. It appears from the observations made by the learned Administrative Tribunal in the impugned order and the record annexed to the petition that the respondents had moved an application under Section 32(4) of the Rent Control Act before the Rent Controller on 14.09.1993 and despite the said application, the petitioners failed to deposit the rent and as such eviction order came to be passed on 12.10.2001. It is further revealed that during pendency of the appeal before the Tribunal challenging the order dated 12.10.2001, the appellant did not deposit rent and, therefore, the respondents moved applications under Section 32(4) of the Rent Control Act r/w Rule 7 of the Rent Control Rules; and the appellants instead of being more vigilant, continued to be negligent in depositing the rent during the pendency of the 4 appeal before the Tribunal compelling the respondents to file three applications under Section 32(4) namely application dated 29.9.2004, 12.10.2006 and 15.12.2008. Only explanation offered by the petitioners / appellants was that they had to spend lot of money for repairs and improvements of the suit premises on the understanding between the original applicant and the appellants that the appellants would be permanently allowed to reside in the suit premises and the monies spent by them on repairs would be adjusted towards the rent. In terms, the appellants admitted that they were defaulters, but not willful defaulters. Financial crisis and sickness were also the causes the appellants put forth to explain the delay in payment and deposit of rents. 3. At ground 6 in the petition, the petitioners/ appellants have disclosed the deposits made by them towards the rent from time to time. “Rs.5,000/- on October 09, 2001; Rs.20,400/- on May 31,2002; Rs.11,800/- on February 16, 2006; Rs.900/- on April 12, 2006; Rs.900/- on July 21, 2006; Rs.2,400/- on February 27, 2007; Rs.3,600/- on April 03, 2008; 5 Rs.2,700/- on January 21, 2009; Rs.900/- on march 20, 2009 and Rs.900/- on June 02, 2009.” These facts clearly spell out that the petitioners were negligent in depositing the arrears of rent regularly. 4. According to the learned Advocate Amol Naik for the petitioners, there was sufficient cause for the petitioners for not paying the rent. Learned Advocate Joseph Vaz for the respondents questioned the bonafides of the petitioners and further relying on the judgments reported in 1997 (6) SCC 597 – N S M Ahmed Jamaliua Bivi Versus T.N. Shaha, 2000(1) GLT 329 – Shri Vante Bicrem Gaunso versus the Administrative Tribunal and 2 others, submitted that even on the facts the cause shown was not justifiable and deposit of rent just prior to passing of the order cannot be said to be bonafide. 5. Section 22 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act,1968 (hereinafter referred to as the Act) makes provision for a landlord to seek eviction of the tenant, who is in arrears of payment of rent for total period of three months and has failed to pay or 6 tender such arrears of rent as are legally recoverable from him within 30 days of the receipt of or of the refusal of a registered notice served on him by the landlord for such arrears. In any such proceedings for eviction, if the Rent Controller on an application made to it, is satisfied that tenant's default to pay, tender or deposit rent was not without reasonable cause, he may notwithstanding anything contained in sub section 3 of Section 32 (giving the parties an opportunity of being heard) give the tenant reasonable time to pay or tender rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application under Section 22 shall be rejected. In the instant case, the petitioners / appellants did not move any application before the Rent Controller giving any cause for default in payment, tender or deposit of rent as per Section 22(4) of the said Act. It appears that only some three days before the order under Section 32(4) came to be passed by the Rent Controller, the petitioners/ appellants had deposited an amount of Rs.5000/-, which cannot be said to be bonafide as default was willful and for a long period after cantankerous contest. It is also not the case that the petitioners/ appellants had filed an application under Section 32(3) of the said Act, raising the dispute as to the amount of 7 rent to be paid or deposited under subsection 1 of Section 32 of the Act. Subsection 1 of the Section 32 of the Act clearly stipulates that no tenant against whom the proceedings for eviction has been instituted by a landlord is entitled to contest the proceedings before the Controller or any Appellate or Revisional Authority or to prefer any appeal or revision under the said Act unless he has paid to the landlord or deposited with the Controller or Appellate or Revisional Authority as the case may be all arrears of 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 until the termination of the proceedings before the Controller or the Appellate or Revisional Authority. 6. In these circumstances, it is revealed, the authorities below have exercised discretion in accordance with law and, there is absolutely no reason to interfere with the discretion exercised by the authorities. The writ petition is, therefore, dismissed in limine. U. D. SALVI, J. SMA