Case: Timblo Irmaos Limited, Margo Vs. Jorge Anibal Matos Sequeira and Another

The Plaintiff-appellant Timblo Irmaos Ltd, (hereinafter referred to as the Company) had sued Jorge Anibal Matos Sequeira, his wife (hereinafter referred to as Sequeiras) for recovery Rs. 2, 82, 141/- claimed under a contract of 23rd January, 1954, a sum of Rs. 1, 14, 700/-, claimed under another contract of 4th February,Sequeiras counter-claimed Rs. 3 lakhs as price of 8000 tons of iron ore supplied to the Company;, pleaded that a sum of Rs. 1, 13, 000/-, advanced by the Company to the Sequeiras was to be adjusted after final determination of the amount due as price, of goods sold, supplied, The decree of the Trial Court was substantially affirmed inthe Additional Judicial Commissioner Goa, Daman &Diu, had modified the decree, the appellant company has come up to this Court in appeal as of right.

Reasoning:
In our opinion, it is not essential to express an opinion about this aspect of the matter, because we are of the opinion that the High Court was not functus Officio in entertaining the application which had been filed on behalf of the appellant for re-hearing the reference, disposing of the matter on merits, Our attention had been invited to the decision of the Allahabad High Court in Roop Narain Ramchandra (P) Ltd. v. Commissioner of Income-tax, U.p.(84 I.T.R. 181.) wherein the High Court held that it has no power to recall an order returning a reference unanswered.stated above, we are unable to agree with the view taken by the Allahabad High Court in thatfacts brought out in the application flied on behalf of the appellant show, in our opinion, that there was sufficient cause-appearance on behalf of the appellant on the date of hearing as well as-filing of the paper books within time. It also cannot be said that there was lack of diligence on the part of the appellant in approaching of the High Court for recalling its earlier order, for disposing of the reference onthe answer given by respondent No. 3 to this contention was that the omission of Explanation (iv) was prospective and not retrospective and since Explanation (iv) was in force at the date when respondent No. 3 filed her application for release, she had a vested right to obtain release of the rented premises in her favour by virtue Explanation (iv) and that vested right was not taken away by the prospective omission of Explanation (iv) and hence she was entitled to rely on it despite its omission by U.P. Act No. 28 of 1976. We have not pronounced on these rival conten- tions since we think it would be better to leave it to the District Court to decide which contention is correct. If the District Court finds that by reason of the omission of Explanation (iv) by U.P. Act No. 28 of 1976 respondent No. 3 is no .longer entitled to rely on it to sustain her claim for release of the rented premises in her favour, it will be unnecessary for the District Court to examine the further question as to whether Explanation (iv) is attracted on the facts of the present case, If, on the other hand, District Court finds that the omission of Explanation (iv) by U.P. Act No. 28 of 1976 being prospective and not retrospective, respondent No. 3 is entitled to avail of that Explanation, t he District Court will proceed to decide whether the two tenements or the .around floor constituted one single unit of accommodation so as to attract the applicability of Explanation (iv) and for this purpose, the District Court may, if it so thinks necessary, either take further evidence itself or require further evidence to be taken by the Prescribed Authority. If the District Court finds that the case is covered by Explanation (iv), there would be no question of examining comparative hardship of the appellant and respondent No. 3, and respondent No. 3 would straight away be entitled to an order of release of the rented premises in her favour. On the other hand, if the District Court comes to the conclusion that by reason of the omission of Explanation (iv) of the U.P. Act No. 28 of 1976 respondent No. 3 is not entitled to rely on it or that Explanation (iv) is not applicable on the facts of the present case, the application of respondent No. 3 would fail, since it has already been found by the District Court and we do not propose to disturb this finding that the appellant would suffer greater hardship by granting of the application than what would be suffered by respondent No. 3 if the application were to be refused.