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Shri Vinod Kumar Gosalia Vs. Shri Frank Silva Lobo Norton - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Spl. C.A. (Writ Petition) No. 139/83
Judge
Reported in(1984)86BOMLR196
AppellantShri Vinod Kumar Gosalia
RespondentShri Frank Silva Lobo Norton
DispositionPetition dismissed
Excerpt:
.....amendment of 1976 and after its amendment) and 22(3) of the goa, daman and diu buildings (lease, rent and eviction) control act, 1968, it is clear that prior to the amendment of the act in 1976, a cause of action for eviction of a tenant was arising in the event the tenant was in arrears of the payment of rent due by him in respect of the rented building for a total period of three months. the amended sub-section (2)(a) of section 22 added something else and the addition is that the cause of action will arise only if, in addition of arrears in the payment of rent due for a total period of three months, the tenant has failed to pay or tender such arrears of rent as are legally recoverable from him within thirty days of the receipt of or of the refusal of a registered notice served on..........respondents moved an application under section 32(4) of the goa, daman and diu buildings (lease. rent and eviction) control act, 1968, (hereinafter called the act for the sake of brevity) and prayed that the proceedings be stopped and the petitioners be ordered to hand over vacant possession of the rented premises. the petitioners had shown cause against the said eviction, but by the impugned order dated february 28, 1979 the learned rent controller, margao, was pleased to allow the application and order their eviction. an appeal was filed by the petitioners against the aforesaid order of the rent controller and this appeal was dismissed by the administrative tribunal by the impugned judgment dated august 3, 1983. the petitioners contend that the impugned orders are vitiated in as much.....
Judgment:

Couto, J.

1. The petitioners challenge by way of this writ petition the orders dated February 28, 1979 and August 3, 1983, passed by the Rent Controller, Margao and the Administrative Tribunal, respectively, whereby the eviction proceedings instituted against them by the first and second respondents had been stopped and the petitioners had been ordered to put the landlords/first and second respondents in possession of the suit premises within thirty days from the day of the order.

2. The case of the petitioners is that the first and second respondents have instituted eviction proceedings against them on the ground that they had failed to pay rents as well as on the ground that the leased premises had been kept closed and thereby damaged. In the course of the proceedings, the first and second respondents moved an application under Section 32(4) of the Goa, Daman and Diu Buildings (Lease. Rent and Eviction) Control Act, 1968, (hereinafter called the Act for the sake of brevity) and prayed that the proceedings be stopped and the petitioners be ordered to hand over vacant possession of the rented premises. The petitioners had shown cause against the said eviction, but by the impugned order dated February 28, 1979 the learned Rent Controller, Margao, was pleased to allow the application and order their eviction. An appeal was filed by the petitioners against the aforesaid order of the Rent Controller and this appeal was dismissed by the Administrative Tribunal by the impugned judgment dated August 3, 1983. The petitioners contend that the impugned orders are vitiated in as much as the Courts below had not considered the effect of the amendment of Section 22 of the Act and the effect thereof on the provisions of Section 32 of the Act. Besides, the petitioners submit that no notice under Section 22(2) of the Act was served on them and, as such, the whole proceeding is vitiated. It is further the case of the petitioners that as per the amended section only the deposit ot arrears of legally recoverable rents is mandatory, that is to say, only rents due for three years prior to the filing of the proceedings can be recovered. Therefore, the rents to be deposited under Section 32 of the Act are only the rents which are legally recoverable and not any rents in excess thereof that may be due.

3. Mr. M.S. Usgaoncar, learned Counsel appearing for the petitioners, has invited my attention to the provisions of Section 32 of the Act as well as to Section 22(2) after the amendment. He submitted that Sub-section (2)(a) of Section 22 of the Act, as it sands at the present, provides for a ground for eviction in the event the tenant is in arrears in payment of rent due by him in respect of the building for a total period of three months and has failed to pay or tender such arrears of rent as are legally recoverable from him within thirty days of the receipt of or of the refusal of a registered notice served on him by the landlord for such arrears. Mr. Usgaoncar therefore submitted that the landlord has got a cause of action on the ground of non-payment of rent only in case the tenant, who is in arrears in the payment of the rent, does not pay when called for to do so the rents which are recoverable. Therefore, the expression 'rents due' occurring in Section 32(1) of the Act is to be construed as rents due and which are recoverable, since the provisions of the Act are to be read harmoniously, and since otherwise there will be a contradictory interpretation of the sections. Mr. Usgaoncar further contended that the ruling of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandreji Virajman Mandir : [1978]2SCR249 is not attracted to our case, since the observations made by the Supreme Court are in the context of the provisions of Section 20 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In the said U.P. Act, Mr. Usgaoncar submitted the cause of action for filing eviction proceedings for non-payment of rent is the non-payment on demand of the rent due and not of the rents which are legally recoverable. Therefore, Mr. Usgaoncar submitted that the aforesaid ruling of the Supreme Court is distinguishable and not attracted to a case based on the provisions of the Act. He further submitted that a situation akin to the one which arises from the provisions of the Act is envisaged by the Madhya Pradesh Accommodation Control Act, 1961, He invited my attention to Section 12 of the aforesaid M.P. Act which provides that no suit shall be filed against a tenant for his eviction from any accommodation expect, inter alia, when the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner. Mr. Usgaoncar then invited my attention to Sub-section (3) of Section 12 of the said Act wherein it is laid down that no order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13. Then, he submitted that Section 13(1) provides for deposit or payment of rent. Now, Mr. Usgaoncar further contended, the Madhya Pradesh High Court has held in the case of Smt. Mankunwar Bai v. Sunderlal Jain : AIR1978MP54 , that under Section 13(1) of the M.P. Act it is not necessary for the tenant to pay to the landlord or deposit in Court the amount of arrears of rent, the recovery of which has become barred by limitation and, as such irrecoverable by the landlord. He further submitted that though this view was held by the Madhya Pradesh High Court prior to the ruling of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shri Ram Chandreji Virajman Mandir (supra), the fact is that the same High Court has upheld its earlier view in two subsequent decisions, namely in the case of Ved Prakash Gupta v. Chotelal Harish Chand [1978] 2 All. Ind R.C.J. 408 and Mankunwarbai v. Sunderlal Rambarosa, Jain [1978] 2 R C R 62. In these two later decisions, the Madhya Pradesh High Court had considered the aforesaid ruling of the Supreme Court and has distinguished the aforesaid ruling on the ground that the observations made by the Supreme Court were in the background of the provisions of the U.P. Rent Control Act which does not embody any provision similar to the provisions of the Madhya Pradesh Accommodation Act in respect of recoverable rent. Mr. Usgaoncar then urged that in our Act the expression 'recoverable rent' had been included and, therefore, the same distinguishing feature which was pointed out by the Madhya Pradesh High Court occurs in our Act and, therefore, the aforesaid ruling of the Supreme Court is not attracted.

4. Dealing with the above contentions of Mr. Usgaoncar, Mr. J. Dias, learned Counsel appearing for the first and second respondents, submitted that the aforesaid rulings of the Madhya Pradesh High Court are good law in respect of the provisions of the Madhya Pradesh Accommodation Act, but definitely are not applicable and are not attracted to a case arising out of the provisions of our Act. He invited my attention to the provisions of Section 22(2)(a) of the Act as it stood before the amendment. He submitted that prior to the amendment the aforesaid provision of law was speaking about arrears in the payment of rent due by the tenant in respect of the building for a total period of three months, without specifying whether that total period of three months was of three months of recoverable rent or of a period of three months of arrears of rent which were due at any time. Then, Mr. Dias further submitted that, by way of the amendment, a clarification was given so as to restrict this period of three months only to the rents which were recoverable. Mr. Dias further invited my attention to Sub-section (3) to Section 22 of the Act as amended and submitted that the legislature has clearly taken a different stand and has not required the payment or deposit of the legally recoverable rent. On the contrary, Sub-section (3) which was introduced by the same amendment is in line with the language adopted in Section 32 of the Act, the reason being that in Section 22(2) (a) of the Act, the cause of action is spoken of, whereas in Sub-section (3) of Section 22 (introduced by the amendment) a benefit is given to the tenant to avoid the eviction by way of paying all the rents due. In the circumstances, Mr. Dias submitted that the scheme of our Act is entirely different and, therefore, the rulings of the Madhya Pradesh High Court relied upon by Mr. Usgaoncar are not attracted and the Administrative Tribunal has correctly relied upon in the ruling of the Supreme Court in the said case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir (supra).

5. It will be necessary for the proper understanding of the rival contentions to refer to the relevant provisions of the Act as they stood prior to the amendment and after it. Section 22 of the Act provides for the grounds of eviction. Sub-section (2)(a) as it stood prior to the amendment was providing that if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, was satisfied

that the tenant is in arrears in payment of rent due by him in respect of the building for a total period of three months,

he could make an order directing the tenant to put the landlord in possession of the building. Section 22 of the Act has been amended by the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1976. By virtue of this Amendment, the aforesaid Sub-section (2) (a) reads at the present as follows: -

(a) that the tenant is in arrears in payment of rent due by him in respect of the building for a total period of three months and has failed to pay or tender such arrears of rent as are legally recoverable from him within thirty days of the receipt of or of the refusal of a registered notice served on him by the landlord for such arrears.

Sub-section (3) was added to the original Section 22 of the Act and the added Sub-section (3) reads as under: -

(3) No order for the eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (2), if the tenant, within thirty days of the service of the summons of proceedings on him, pays or tenders to the landlord or deposits with the Controller the arrears of rent due by him up to the date of such payment, tender or deposit together with the cost of application;Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any building he again makes a default in the payment of rent of that building for a total period of three months.

A reference is also necessary to be made to the provisions of Section 32 of the Act. Section 32 provides for the payment or deposit of rent during pendency of proceedings for eviction. Sub-section (1) reads as under: -

(1) No tenant against whom a proceeding for eviction has been instituted by a landlord under this Act shall be entitled to contest the proceeding before the Controller or any appellate or revisional authority or to prefer any appeal or revision under this Act, unless he has paid to the landlord or deposits with the Controller or the appellate or revisional authority, as the case may be, all arrears of rent due in respect of the building up 10 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.

And Sub-section (4) reads as follows: -

(4) If any tenant fails to pay or to 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 proceeding and make an order directing the tenant to put the landlord in possession of the building.

6. It is clear, therefore, from a careful reading of the above provisions of the Act that, prior to the amendment, a cause of action for eviction of a tenant was arising in the event the tenant was in arrears of the payment of rent due by him in respect of the rented building for a total period of three months. The amended Sub-section (2) (a) of the Act added something else and the addition is that the cause of action will arise only if, in addition of arrears in the payment of rent due for a total period of three months, the tenant has failed to pay or tender such arrears of rent as are legally recoverable from him within thirty days of the receipt of or of the refusal of a registered notice served on him by the landlord for such arrears. Therefore, at the present, a cause of action arises for the landlord to file eviction proceedings against his tenant for non-payment of rent only when not only the tenant is in arrears in the payment of rent due by him for a total period of three months, but also he fails to pay or to tender the arrears of rents which are legally recoverable from him within thirty days of the serving of the demand notice. In other words, the tenant can avoid the eviction proceedings in case he pays the rents which are not barred by limitation and can therefore be recoverable by the landlord. Now, the expression 'arrears of rent as are legally recoverable' is not occuring in Section 32 of the Act. On the contrary, Section 32 of the Act speaks only about the payment or deposit of all arrears of rent due in respect of the building. There is, therefore, a clear difference in the language of the two sections. The question therefore is to see whether there is a special reason to differentiate and to classify differently the two situations. Mr. Usgaoncar, as already said, has contended that no sound reason exists to treat differently the two situations, since if no eviction proceedings can lie in the event the tenant pays the rents which are legally recoverable even if he owes to the landlord rent much beyond the period of limitation, then there is no sound reason to force a tenant to deposit all the rents due only for the purpose of resisting or defending an eviction proceedings instituted against him. The argument may appear to be correct and is to some extent enticing. However, on a deeper reading and consideration of the relevant provisions of the law, it would appear that the contention of Mr. Usgaoncar cannot be accepted. First of all, as observed by the Supreme Court in the aforesaid case of Khadi Gram Udyog Trust v. Shri Ram Chandraji Virajman Mandir (supra), there is ample authority for the proposition that though a debt is time barred, it will be a debt due though not recoverable, the relief being barred by limitation. It has been further observed that in Halsbury's Laws of England (3rd Edn.) Vol. 24 at page 205, Article 369, it has been stated that

except in the cases previously mentioned, the Limitation Act, 1939 only takes away the remedies by action or by set off; it leaves the right otherwise untouched and if a creditor whose debt is statute-barred has any means of enforcing his claim other than by action or setoff, the Act docs not prevent him from recovering by those means.

Therefore, since the mere fact that a debt is not recoverable by virtue of the law of limitation does not extinguish the liability or obligation, one has to see, bearing in mind the relevant provisions of the Act and the scheme thereof, whether or not the legislature intended, in Section 32 of the Act, that only the legally recoverable rents were to be deposited or paid so as to enable a tenant in default to resist the eviction proceedings instituted against him. The Act is manifestly a beneficial piece of legislation meant to defend the interests of the tenants. However, while doing so, the Act also intended clearly to safeguard the minimum of the interest of the landlords, namely, the right of the landlord to be paid the rents for the rented premises. Under the scheme of the Act, the tenant is protected against an unjustified and unjust eviction, but, at the same time, the just interests, of the landlords are safeguarded by way of recovering from the tenants the rent due. This being the position it is my considered view that a justification and a sound reason exists to treat in a different manner the situation prior to the institution of eviction proceedings and a situation which arises after the proceedings are initiated. In Section 22(2)(a) of the Act, a cause of action is provided for the eviction of a tenant for non-payment of rent. But, at the same time, a benefit is given to the tenant to avoid his eviction and even the institution of the proceedings by paying to the landlord the rents which are due by him but restricted only to those which are legally recoverable from him. It appears to me that the reason for this provision is that if a landlord for some reason of his own, including negligence, fails to serve a notice on the tenant for the payment of the rents beyond the period of limitation, then he should suffer the consequence of his negligence or largess. However, if, after such notice is given, the tenant, who had been given the benefit of stopping the institution of eviction proceedings, does not take advantage of such a benefit, then there is no reason whatsoever to penalise the landlord. On the contrary, the situation that arises after the institution of the eviction proceedings on the ground of non-payment of rents is completely different. In fact, it appears that, inspite of opportunities given by the law to the tenant, the latter is defiantly not paying the rents. Hence, if the rents are not recoverable only because of the law of limitation, but nevertheless the liability has not been extinguished, then a reason exists to treat him differently and to provide that he can defend or resist the proceedings only if he pays whatever rents are due.

7. Mr. Usgaoncar, has also contended that a second opportunity is given to the tenant by Sub-section (3) of Section 22 of the Act which has been introduced by the amendment. Undoubtedly, the aforesaid Sub-section (3) is giving another opportunity to the tenant to avoid his eviction from the rented premises. However, it is material to note that Sub-section (3) was introduced by the same amendment under which Sub-section (2)(a) was changed and the expression 'legally recoverable' was introduced. Therefore, the question that arises is why the legislature had not introduced or used the same expression 'legally recoverable' in Sub-section (3) and instead had used the expression 'rent due'. The reason appears to be clear and seems to be the one which was given by me in the preceding paragraph. In fact, it appears that since the tenant had not taken advantage of the beneficial provision of Sub-section (2)(a) of Section 22 of the Act, then, if he wants to avoid his eviction he should pay whatever he owes to the landlord, because, in the premises, the landlord should, not be penalised. It is true that the Madhya Pradesh High Court has taken a different view of the matter and has held that if a cause of action arises for the landlord only in case the tenant does not pay the rents legally recoverable when demand notice is served on him, then the defence of the tenant cannot be struck out if after the institution of the proceedings he does not deposit all the rents due. It is as true that the Madhya Pradesh High Court has further held that the tenant is bound to deposit only the amount of the rents which are recoverable. However, the aforesaid rulings of the Madhya Pradesh High Court are based entirely on the provisions of the Madhya Pradesh Accommodation Act, It is, therefore, expedient to advert to the relevant provisions of the aforesaid Madhya Pradesh Accommodation Control Act, 1961. Section 12(l)(a) of the said Act provides that no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except inter alia when the tenant has not paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord. Sub-section (3) of Section 12 lays down that no order for eviction of a tenant shall be made on the ground specified in Clause (a) of Sub-section (1), if the tenant makes payment or deposit as required by Section 13 and Section 13(1) provides that on a suit or proceeding being instituted by the landlord on any of the ground referred to in Section 12, the tenant shall, within one month of the service of writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. It was in the context of the aforesaid provisions of the Madhya Pradesh Accommodation Act that the aforesaid High Court has held in the case of Mankunwar Bai v. Sunderlal Jain (supra) that under Section 13(1) of the said Act it is not necessary for the tenant to pay to the landlord or deposit in Court the amount of arrears of rent, the recovery of which has been barred by limitation and, as such, irrecoverable by the landlord. The reason for so holding was that Section 13(1) has been enacted to afford to the tenant a further opportunity to pay arrears of rent, although he has committed default when the notice of demand was served on him. Now, it is to be noted that the provision similar to some extent to that section of the Madhya Pradesh Act has been introduced by way of the amendment in our Act. The said provision is Sub-section (3). However, while considering all the aspects of the case, as already observed, the legislature, while introducing in Sub-section (2) (a) in the amended Section 22(2) (a) of the Act the expression 'legally recoverable', has deliberately omitted such expression in the new Sub-section (3) and has used the expression 'rent due'. This being so, it appears manifest that the legislature, while intending to give a fresh opportunity to the tenant to avoid his eviction, nevertheless did not intend to enlarge the benefit to the extent of making him free to pay only the legally recoverable rent. On the contrary, it appears that the legislature intended to cause the tenant to pay a price for the fresh opportunity given to him to avoid his eviction, and the price was to deposit or pay all the rents which were due by him. The rulings of the Madhya Pradesh High Court in the case of Ved Prakash Gupta v. Chotalal Harish Chand (supra) and in the case of Mankunwarbai v. Sunderlal Rambharosa, Jain (supra) had reiterated the view taken in the previous decision on the same ground and had only distinguished the ruling of the Supreme Court in the case of Khadi Gram Udyog Trust v. Shrji Ram Chandraji Virajman Mandir (supra) on the basis that the aforesaid ruling of the Supreme Court was made on the background of the provisions of the U.P. Rent Control Act. These rulings of the Madhya Pradesh High Court are not attracted to the facts and circumstances of our case where the mind and intention of the legislature while enacting the Act and the amendment is clearly different. I am, therefore, unable to accept the contention of Mr. Usgaoncar that the expression 'legally recoverable' is to be read in Section 32 of the Act when it provides for the payment or deposit of the arrears of rent due.

8. Irrespective of this aspect of the case, it is to be mentioned that also on a different ground this petition is bound to fail. In fact, the Rent Controller has clearly observed in the impugned order that the petitioners had not shown that they have deposited the rents due for the period commencing in July, 1971 to May, 1973 and also that they have not regularly deposited the rents for the months subsequent to the filing of the eviction proceedings, and further that me petitioners had not offered any explanation for such failure. In the same manner, the Administrative Tribunal has observed in para 7 of the impugned judgment that the respondents herein had contended that the petitioners had not paid the rents from October,. 1978 to February, 1979 and that, though the petitioners had contended that such rents except for the month of October, 1978 had been paid, the records of the Tribunal and the Rent Controller were not proving such payments. In addition, it was observed that the rents for January and February, 1979 had been paid only on March 30, 1979, thus belatedly, and without sufficient cause having been shown. This ground alone justifies entirely an order of eviction under Section 32(4) of the Act. It has been however, urged by Mr. Usgaoncar, relying upon the judgment of the Supreme Court in the case of Miss Santosh Mehta v. Om Prakash : [1980]3SCR325 that a punitive action can be taken only in case it is shown that the tenant acts inter alia, with a mood of defiance or gross neglect and that such neglect or defiance cannot be found in the present case. In the aforesaid case of Miss Santosh Mehta v. Om Prakash, Krishna Iyer J. has observed (at p. 1665 para 3):-

A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a Court, striking out a party's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the Court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power.

Applying these observations to the facts and circumstances of the cass, I am bound to arrive at the finding that the petitioners had been guilty, at least, of gross neglect. In fact, they had failed to deposit or pay the rents from July, 1971 to May, 1973 and they did not deposit regularly the rents even after the eviction proceedings had been instituted. Further, they did not pay the rents, or at least they had not shown that they had paid the rents from October to February 1979 and also they paid belatedly the rents of January and February, 1979 without giving any reasons therefor. Thus, even in the light of the above ruling of the Supreme Court, it appears that the extreme measure of an action under Section 32(4) of the Act was entirely justified and warranted by the conduct of the petitioners themselves,

10. In the result, this petition fails and is consequently dismissed with costs. The Rule stands discharged.


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