E.S. Da Silva, J.
1. The challenge in this petition is the judgment of the Administrative Tribunal, Goa, Daman and Diu at Panaji, dated 22-10-1990, in Eviction Appeal No. 13 of 1987 which has affirmed the judgment and order of the Addl. Rent Controller dated 30-10-1986 in Case No. Rent/ARC/28/80. By the aforesaid judgment the Addl. Rent Controller has allowed respondent No. 1's (hereinafter referred to as the respondent) application under section 32(4) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction.) Control Act, 1968 (hereinafter referred to as the Act), in eviction proceedings filed by her against the petitioner for failure to pay rents and consequently dropped the proceedings directing the petitioner to hand over vacant possession of the suit premises to the respondent within a period of four months from the date of his order.
2. The case of the petitioner is that he is a tenant in respect of a portion of the ground floor of the building known as 'Serrao Building' situated at Fontainhas, Panaji, bearing House No. 116 of Municipal Ward No. 6 which building is owned by the respondent on payment of Rs. 200/- p.m. as monthly rent. Sometime in the year 1980 the respondent filed an application to the Rent Controller, Panaji, under section 22 of the Act, praying for the petitioner's eviction on the ground of failure to pay the rents regularly and also illegally sub-letting without the consent of the respondent. The eviction application was registered by the Controller and in his reply the petitioner denied that any arrears of rents were due to the respondent and also that she had sublet the premises to any person. It was the petitioner's case that the premises were continued to be occupied by members of his own family. When the petitioner filed her reply to contest the respondent's application for eviction she sought permission of the Controller to deposit all the arrears of rents due for the period from May 1980 to December 1980 in the sum of Rs. 1716/- which amount was actually deposited by the petitioner. Thereupon eviction proceedings continued and evidence of the respondent was in progress. At that stage the respondent moved an application to the Addl. Rent Controller, on 1-2-1982, purported to be an application under section 32(4) of the Act seeking to stop the proceedings on the ground that the petitioner had not deposited rents from September 1981 onwards. The Addl. Rent Controller gave a notice to the petitioner on this application and posted the matter for reply and arguments on 1-3-1982. On that day the Addl. Rent Controller was not present because he had been transferred and nobody was appointed to the post till July 1982. However on 27-7-1982 the Rent Controller took up the matter which was pending in the file of the Addl. Rent Controller without giving any notice to the petitioner and disposed of the matter by allowing the respondent's application under section 32(4) and consequently stopping the whole proceedings on its merits. The petitioner then filed a writ petition in the High Court, being Writ Petition No. 206/B/1982, challenging the order of the Rent Controller which was allowed by judgment of this Court dated 27-9-1983 whereby the said order was quashed and set aside and the matter was remanded to the Addl. Rent Controller for further action. At that stage the respondent filed another application under section 32(4) on 24-2-1984. In this application the respondent complained of several defaults of the petitioner in paying the rents timely, being in the year 1981 in respect of rents regarding the month of October while in respect of the year 1982 it was contended that no rents were paid within time in that year for the months of February and March and thereafter, from May 1982 onwards till January 1984, rents had been paid only on 22-2-1984. The petitioner filed her reply to this application on 30-4-1984 wherein she has sought to justify the non-payment of rents within the prescribed time limit. It was stated by the petitioner in that reply that so far the rent for the month of October 1981 the allegation that the same has not been deposited within time and therefore the respondent was entitled to the benefit of section 32(4) of the Act the same was not tenable under the law as the applicant has withdrawn the rent deposited and thereby waived her right. As regards the failure to deposit the rents for the months of February and March 1982 within time, it was stated that the same remained to be deposited bona fide as the Court of the Addl. Rent Controller, Panaji, was not functioning during the relevant time. With regard to the rent for the months from May 1982 onwards it could not be deposited also because the matter was already pending before the High Court in a writ petition in connection with the order illegally passed by the Rent Controller dropping the proceedings under section 32(4) of the Act. In the circumstances the petitioner stated that there was sufficient cause for not stopping the proceedings as prayed for by the respondent. Thereupon the Addl. Rent Controller passed the judgment dated 30-10-1986 which was subsequently upheld by the Administrative Tribunal vide its judgment dated 22-10-1990 which are both impugned in this petition.
3. Mrs. Agni, learned Counsel on behalf of the petitioner, has submitted that when on the day of the application under section 32(4) the tenant had already deposited the entire arrears of rents irrespective of the delay in making such deposit and without prejudice of her having not shown any cause for this delay, it was not permissible for the Addl. Rent Controller to exercise his discretion under section 32(4) of the Act and stop the proceedings as sought by the respondent. The learned Counsel contended that the petitioner in respect of acts of this case was fully covered by the judgment delivered by this Court in the case of Satyavijay Anna Tandel v. Administrative Tribunal of Goa, Daman & Diu, : (1990)92BOMLR580 . The learned Counsel urged that this judgment covers three types of cases namely (i) when an application under section 32(4) is made and only thereafter the tenant comes and pays then assures further payment regularly. In that case according to learned Counsel no order of eviction could be made only because the tenant had defaulted or delayed in making timely payments in the past. (ii) when an application under section 32(4) is made and even then the tenant fails to deposit inspite of an opportunity given to her to effect the payment and also fails to explain the failure to deposit or pay the rents due in arrears. In this case, learned Counsel contended, eviction could be ordered. The learned Counsel urged that only when the tenant did not pay he had to explain as to why the payment was not being done. (iii) when on the date of the application of the landlord the tenant had already deposited all the arrears of rents then due. In that case there was no question of the Rent Controller passing an order of eviction or stopping of the proceedings as it would amount to virtually evicting the tenant without a trial. In that case, learned Counsel stated that there was also no need for the tenant to justify or even explain the delay. On the point of applicability of the ratio of a judgment on facts of each case so as to bring the petitioner's case within the purview of the aforesaid judgment in Satyavijay Anna Tandel's case, reliance was placed in the case of Tribhovandas Purshottamdas Thakkar v. Radial Motilal Patel and others, : [1968]1SCR455 , wherein it has been held that precedents which enunciate rules of law from the foundation of administration of justice under our system and therefore a Single Judge of High Court is ordinarily bound to accept as correct judgments of courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of the Supreme Court for reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law. Thus in considering whether a precedent of a Court of co-ordinate authority is binding, reference to section 165 of the Evidence Act is irrelevant. Undoubtedly, every judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved. But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgment and not by the facts of that case. The learned Counsel has also drawn my attention to another decision in the case of B. Shama Rao v. Union Territory of Pondicherry, : [1967]2SCR650 . This was for the purpose of showing that a decision is binding not because of its conclusion but in regard to its ratio and the principles laid down therein.
4. It was next submitted that the period for which the petitioner has paid the rents late would have to be bifurcated into two parts, being on one side the rents which had been paid during the time when proceedings were pending before the Rent Controller and the other being rents in respect whereof late payments were made during the proceedings before the High Court. In this regard it was urged that the moment the order dated 27-7-1982 was passed by the Rent Controller in the original application under section 32(4) the proceedings came to an end. Therefore after the proceedings were over the petitioner could not have deposited the rents in the Court of the Rent Controller and hence any failure in timely depositing the rents during that period had to be held as due to sufficient cause. The learned Counsel contended that, after the first order was passed by the Rent Controller on 27-7-1982, Writ petition No. 206/B/82 was filed sometime in September 1982 which was disposed by judgment dated 27-9-1983. The learned Counsel by relying on the provisions of section 32(1) and section 32(4) has urged that only in case where liability under section 32(1) could be sought to be enforced by a landlord then the remedy under section 32(4) would be available to him. It was submitted that, in terms of section 32(1), the liability for the tenant to pay rents or to deposit them would lie until the termination of the eviction proceedings. According to learned Counsel proceedings instituted by the respondent against the petitioner had terminated by the judgment of Rent Controller dated 27-7-1982. Hence an application under section 32(4) moved by the respondent in those proceedings which was available to her only when such proceedings were pending could not be enforced by the landlord after the proceedings had ended. The learned Counsel further submitted that subsequently proceedings were instituted by the petitioner in this connection before the writ Court. However it could not be said that during the period of these writ proceedings the petitioner's liability could be enforced under section 32(4). Learned Counsel sought to impress upon me that when proceedings are before the writ Court there cannot be said that a situation under section 32(1) exists and therefore the remedy under section 32(4) cannot be availed of by the landlord. Thus the petitioner's failure to deposit rents within the prescribed time from 27-7-1982 till the judgment of the High Court in W.P. No. 206/B/82, dated 27-9-1983, is to be held as justified by good and sufficient cause on account of her bona fide belief that after the order of the Rent Controller, dated 27-7-1982, no application could be filed by the respondent under section 32(4) which pre-supposes the existence and/or pendency of eviction proceedings. The learned Counsel has drawn my attention in this regard to a judgment of the Division Bench of this Court in the case of Mrs. Damayantiben Shivaji Chauhan v. Dr. Dinesh Parekh and others, A IR 1988 CJ 520. This was a case under the Act and while dealing with its section 22(2)(a) and 32(1) read with Rules 7 and 8 of the Rules a suit had been filed by the landlord against the tenant on the ground of non-payment of rents which was decreed by the Rent Controller under Order 8, Rule 10 C.P.C. as the tenant did not file written statement. In the appeal moved by the tenant no arrears of rent were deposited with the filing of the appeal nor subsequent rents were paid. On the question as to whether the appeal was or not maintainable under section 32(1) the Court held that since the tenant is given an option under sub-section (1) either to pay the rent directly to the landlord or to deposit it with the authority concerned and since no rules have been made under sub-section (2) for deposit of the rent when the tenant prefers appeal or revision, his appeal or revision could not be dismissed on the ground of his failure to pay rent or to deposit it either simultaneously with or after the institution of the appeal or revisional proceedings. Further, on the point of the application of the landlord under section 32(4) for stoppage of further proceedings during the pendency of the appeal by the tenant when asking to be put in possession as the tenant failed to pay or deposit before the Rent Controller without sufficient cause which application had been allowed by the Appellate Court, it was also laid down that no application could have been presented before the Tribunal on the ground that the tenant had either failed to pay or deposit the rent in time before the Rent Controller. The Court observed that the provisions of sub-section (4) are special and the order to be passed under the said provision is of an interlocutory nature. Thus the order had to be passed by the authority before whom the proceedings are pending if it was satisfied that not only there was a failure to pay or deposit the rent but also that there was no sufficient cause for such failure. The Court observed in this regard that admittedly no such application was made before the Rent Controller when the proceedings were pending before him and that he alone could have taken cognizance of such application and passed an order under that provision. Hence no application for an order under the said provision could have been made before the Appellate Tribunal and the Tribunal could not have passed an order on that ground. Therefore the order passed by the Appellate Tribunal on the application in question was without jurisdiction and therefore illegal. Learned Counsel submitted that two propositions of law could be carved out of this ruling, being one to the effect that when there is an appeal filed by the tenant against the order of his eviction in proceedings under section 32(4) there was no liability for the tenant to deposit the rents due during the pendency of the appeal or even to pay rents to the landlord while the other was that where there are defaults in payment or delay in paying rents by the tenant when proceedings lie before the Rent Controller he alone could decide about these defaults and hence the appellate Court could not adjudicate about the defaults before the Rent Controller. Being so obviously the Rent Controller could not decide about defaults committed by the tenant in proceedings either before the Appellate Court or any other Court. It was urged that these submissions have been advanced for the purpose of showing that if there was no liability for the tenant to pay or deposit rents during the pendency of the appeal filed by him against the order of the Rent Controller directing his eviction consequent upon stopping of the proceedings, for equal reasons there could be no such liability for the tenant to pay or deposit rents during proceedings pending before the Writ Court. The second reason was that if it was not so the Rent Controller would be entitled to decide any case of default occurring not only in proceedings pending before him but also in proceedings which were not before his Court even after the Rent Controller's order dated 27-7-1982. Hence in the light of the ratio of the judgment of the Division Bench cited above the Rent Controller had no jurisdiction to cause the eviction of the petitioner by stopping the proceedings at the instance of the respondent consequent upon his application under section 32(4) with regard to defaults allegedly committed by the petitioner from July 1982 to September 1983 when the judgment of this Court was pronounced in W.P. No. 206/B/82.
5. Although ex facie the argument is indeed very attractive it is however impossible to accede to the impeccable logic behind the forensic skills of the learned petitioner's Counsel. Admittedly the Writ Court is neither an appellate or revisional Court and the proceedings in writ jurisdiction are not appellate or revisional proceedings to the extent that these are not continuation of the proceedings of the trial Court. However, the aftermath of the decision of the Writ Petition N. 106/B/82 in the instant case has caused the restoration of the position which was prevailing prior to the filing of the writ i.e. the status quo ante and everything having returned to a situation which was existing at the time the order dated 27-7-1982 was passed, in other words, when the judgment of the Writ Court, dated 27-9-1983, was delivered proceedings under section 32(1) are also deemed to have been restored and hence section 32(4) became again available to the respondent. Hence the liability of the petitioner to pay rents due was also revived. On the other hand, since writ proceedings were not appellate proceedings the petitioner was bound and liable to discharge his obligations even during pendency of the writ proceedings and thus his failure to pay rents due or deposit them during the period the proceedings were pending, either with the Rent Controller or the Tribunal is likely to make him incur in the liability under action 32(4). In my view the import of the ratio of the decision in Mrs. Damayantiben Shivaji Chauhan's case cannot have the effect of precluding or defeating the respondent's right to avail of the benefits of section 32(4) once the petitioner was not able to satisfy as to why he had not timely paid or deposited the arrears of rents due during the pendency of the eviction proceedings. That apart there is liability to effect this payment or deposit as per law in respect of the period prior to the filing of the Writ Petition No. 206/B/82 as well as after the order of its disposal was passed on 27-9-1983.
6. Further, as rightly contended by Mr. Lotlikar, learned Counsel for the respondent, it is a settled position that section 32(4) is by itself an independent ground of eviction of a tenant different from the grounds provided in sections 22 and 23 of the Act. Therefore it is legitimate to presume that a tenant may expect that any application under section 32(4) would be considered by the trial Court at the most with the same approach and lenient view which the Act, as a beneficial legislation sought to protect the interest of the tenants, seems to contemplate namely in its provisions of sections 22 and 23. A tenant cannot expect a more lenient approach and claim additional benefits or extra protection so as to permit him to commit defaults in respect of payment of rents during the pendency of eviction proceedings when an application under section 32(4) has been filed by a landlord without bothering to give any explanation or show sufficient cause in respect of these defaults. Indeed under section 22, when an eviction application is filed the tenant can get free from the consequences if he effects the deposit of the rents within thirty days. This is a specific provision meant for this purpose. However, in respect of section 32(4), there is no such provision to enable the tenant to continue defaulting in the payment of rents for months together without sufficient cause and then claim that a benefit similar to the one provided in section 22 and which is not provided in section 32 should be extended to him. On the contrary, the law as it stands seems to contemplate a situation wherein the proceedings are bound to be stopped and eviction of the tenant be ordered if during those proceedings the tenant has committed default in the payment of arrears of rents without showing sufficient cause. Thus it is obvious that the tenant cannot indulge in making deposits of the rents at his own free will and claim thereafter that an application filed by the landlord seeking an order of stopping of the proceedings and the summary eviction of the tenant on the ground of default in paying the rents during the pendency of the eviction application should be dropped irrespective of the fact as to whether he gives reasons for the default or not. Hence I find no merit in the submissions of the learned petitioner's Counsel in this regard which are therefore to be discarded.
7. The next proposition advanced by the learned Counsel for the petitioner is that this Court has time and again laid down the principle that what is relevant in an application under section 32(4) is not the question of finding out whether there is sufficient cause not to pay arrears of rents admittedly due during the pendency of the eviction proceedings but whether there is sufficient cause to stop the proceedings. Learned Counsel besides the ruling already referred to in Satyavijay Anna Tandel's case has relied in this respect on the case of Shri Joao Xavier Pinto v. Shri Oswald J.C. Velho and others, : 1987(1)BomCR113 , wherein it has been laid down that sub-section (4) of section 32 provides a cause being shown by the tenant which must however be a sufficient cause not for the purpose of 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 and thus there need not be over emphasis on the fact that the Act is enacted for the purposes of giving protection to tenants and arresting their eviction by rapacious landlords. It is equally true that section 32 has been enacted to protect the interest of the landlord to secure rents from cantankerous tenants who fail to pay or deposit before the Controller or the appellate or the revisional authorities so that landlords are not driven to file different proceedings for recovery of rents in another forum. Another decision which has been cited by learned Counsel on the point is in the case of Roque Antonio Judas Tadeu Caetano Ribeiro v. Angela Cassiano Nevese Souia-& 4 others, 1989(2) GLT 313. This was again for the purpose of showing that section 32(4), while directing that the Controller or the appellate or revisional authority shall stay all further proceedings and make an order directing the tenant to put the landlord in possession of the building if the tenant fails to pay or deposit the rent as mentioned in section 32, further lays down that such an order shall be made 'unless the tenant shows sufficient cause to the contrary'. That means that the tenant is entitled to satisfy the Court that circumstances exist in view of which the Court ought not to make an order under sub-section (4) of section 2 against him. While upon every default that the tenant allegedly commits the landlord may apply for being put in possession and the tenant is entitled to show cause to the contrary, it is for the Court to consider whether the cause shown by the tenant is sufficient or not &ad; whether the order prayed for by the landlord should be made or not. In exercise of the discretion it is necessary for the Authorities under the Act to bear in mind the scheme of the Act.
It was urged by the learned Counsel that although an application under section 32(4) was made by the respondent on 24-2-1984, however, the petitioner has effected the payment of arrears of rent two days prior to that on 22-2-1984. Therefore there was no question of her being penalised for her past conduct. It was contended that so far rents in respect of months of February, 1982 and March 1982 were required to be paid in March 1982 and April, 1982 respectively, the petitioner has pleaded that such rents could not be paid only because the Rent Controller's Court was not functioning at the relevant time. With regard to the rents from May 1982 to September 1982 in respect where of rents were deposited by the petitioner only in February 1984 the cause shown by the petitioner was the pendency of the Writ Petition No. 206/B/82. This, according to learned Counsel, was to be held as sufficient cause. After the judgment was passed on 27-9-1983, the learned Counsel argued, the delay in paying or depositing the rents in respect of the months of September, 1983 to February, 1984 should also be condoned in the light of the ratio of Satyavijay Tandel's case mentioned above. Thus, since the petitioner had deposited the arrears of the rents before the respondent's application under section 32(4) and assured regular payment in future which he has done till now, the question of the petitioner showing cause in any default committed by her in either paying/or depositing the rents could not arise at all. It was submitted that the present behaviour of the petitioner, right from 1984 till now, should also be considered as a relevant circumstance to indicate that her conduct in the past was also not cantankerous. Therefore, even assuming that the petitioner had been irregular in the past, however her past conduct consequent upon the fact of her having paid all the arrears could not justify her being penalised with the consequence of a summary eviction under section 32(4).
8. In order to appreciate the contentions of the learned Counsel in this regard as well as the other submissions canvassed by her along with her first proposition it must be borne in mind that first of all in the facts of this case the explanation given by the petitioner for committing default in timely paying or depositing the rents accrued in respect of each and every month is entirely false. Mr. Lotlikar appears also to be on a sound footing when he complains that the so called explanations given by the tenant are not of her own initiative but on the advice other Counsel i.e. based on legal advice which however could not come out of the legal requirement according to which a tenant is always expected to pay regularly rents to the landlord during the pendency of the proceedings. With regard to the rent of October 1981, indeed the justification sought to be given by the petitioner is untrue because at no time the respondent had withdrawn the rent allegedly deposited by the petitioner in respect of that month. But even if he had done so that could not make any difference so far his rights are concerned to avail of the benefits of section 32(4). Similarly, in respect of the rents of February and March 1982, the explanation sought to be given by the petitioner has also been shown as absolutely incorrect and lacking bona fide. The argument that the Rent Controller's Court was not functioning and therefore she was unable to deposit the rents due is to be deemed as negativated by the fact that the petitioner herself has approached the same Court inspite of the Rent Controller being not available in the month of April 1982 and deposited the rent of February 1982. This is inspite of the fact that at that time the rent regarding March 1982 being already due. To be seen that even if the rent of March not being payable at that time there was however no justification for the petitioner to subsequently effect the payment of March rent only in the month of June 1982 when, it appears, rent of both months of March and April were deposited by the petitioner in the Court of the Rent Controller. Further, there is also no explanation and much less sufficient justification for the petitioner to pay or deposit the rents with regard to May 1982 only in February 1984. In the circumstances the cause sought to be shown by the petitioner that writ proceedings were pending, when admittedly such proceedings were filed only in October 1982, could not be accepted. Thus it follows that rents of May, June, July, August and September 1982 had been all fallen due much prior to the filing of the Writ Petition No. 206/B/82. Mr. Lotlikar has drawn my attention to the fact that even bifurcating the rents into two groups, being one in respect of May and June 1982 and the other covering months of July, August and September 1982, after the order of the Rent Controller dated 27-7-1982 stopping the proceedings came to be passed, the rents in respect of months of May and June, 1982 had already fallen due when the said order was delivered. But, as far as the mental attitude of the tenant in respect of the rents for the entire period from May 1982 to September 1982 which she admittedly failed to pay or deposit in time, the case is to be treated however in the same footing because it has not been denied by the petitioner that she came to know about that order dated 27-7-1982 only in the month of September 1982, after which the Writ Petition No. 206/B/82 was filed in October 1982.
9. There is considerable merit in the learned Counsel's submission in this regard. The record shows that the order of the Rent Controller dated 27-7-1982 was stayed by this Court only on 16th October, 1982 and from that day it may be conceded that the petitioner might have gathered the impression that he, as a tenant, need not have to deposit the rents subsequent to that stay because it appears that there was no order passed by the High Court also to effect such deposit. However it is impossible to believe that the petitioner might have thought that on account of this stay he was not bound to pay the rents to the landlord at all. As rightly contended by Mr. Lotlikar, the obligation of the tenant to pay rents after the eviction order of the Rent Controller was stayed by the High Court, became more compelling to the petitioner not only as a duty towards the landlord but also in respect of the Court itself which had protected the tenant by staying the order of the Rent Controller. To think otherwise or differently by itself reflects the petitioner in a very bad light disclosing her state of mind and showing her as a cantankerous defaulter. It seems that the petitioner while failing to effect the payment or deposit of the rents due after the stay granted by this Court of the order of eviction passed by the Rent Controller has sought to take advantage and tried to capitalise the very fact of that stay in her own exclusive benefit in detriment of the respondent/landlord in clear breach of her obligation in respect of a lease agreement which was still in force. But, even assuming that the petitioner's liability to pay or deposit the rents due stood suspended during the pendency of the writ proceedings and therefore for defaults which occurred during his period liability under section 32(4) could not be saddled on her, it is clear that nobody has sought to get the petitioner penalised under section 32(4) on account of this default. The argument raised by the petitioner's learned Counsel in this regard appears to be fallacious since nowhere the respondent has made the fact of failure in paying or depositing arrears of rent from May 1982 to September 1983 as the sole ground to evict the petitioner from the suit premises under section 32(4) of the Act. The petitioner had not been able to deny that, at least after the judgment in W.P. No. 206/B/82 was passed in September 1983, she had to pay the rents already due or deposit the same immediately when proceedings for eviction had been restored consequent upon the judgment dated 27-9-1983. However the record shows that the arrears of rent were deposited by the petitioner neither in September or October 1983 but only in February 1984. Thus, the reason of the pendency of the writ petition advanced by the learned Counsel cannot stand after-September 1983.
10. In my view, there appears to be a reason to accept as good the respondent's learned Counsel's contention that here is a case of a persistent defaulter whose default was in the nature of a recurring default and this inspite of the petitioner having been alerted and put to guard in respect of the consequences which could arise to her in case she continued to fail to timely pay the rents due during the pendency of the eviction proceedings. The petitioner had already faced in the past a similar application under section 32(4) which however has not been pressed by the respondent. Therefore it could not lie in the petitioner's mouth to say now that it was an instance of stray default or default for a short duration or even a bona fide default. On the contrary the position as it is depicted from the whole behaviour of the petitioner is typically a position of a cantankerous is defaulter which has put up false explanations going to the extent of even denying her status of a tenant of the respondent and consequently her liability to pay rents to the respondent/landlord.
11. In this regard Mr. Lotlikar has urged that inspite of the petitioner after depositing the rents in arrears on 22-2-1984, had canvassed on the basis of Satyavijay Tandel's judgment that her legal obligations were fulfilled with this deposit still her subsequent conduct cannot be said as bona fide and amounting to her assuring that she would continue paying regular rents in future. The facts of the case show that after the deposit the petitioner made an application to amend her written statement on 30-4-1984 seeking to introduce a new ground of defence and claimed that she was not a tenant of the respondent because at the time the lease was executed in her favour the respondent/landlord had not complied with the provisions of section 4 of the Act by giving notice of the vacancy of the premises to the Controller. Thus, according to the petitioner, the lease itself was invalid and she was not bond to pay rents to the respondent. Therefore the Rent Controller had no jurisdiction to entertain any case of eviction of the petitioner. Further this application came to be dismissed by the Rent Controller and her objection overruled by order dated 30-7-1984. Notwithstanding this rejection the petitioner moved another application before the Rent Controller on 12-10-1984 praying that the objection and the issue raised by her should be adjudicated again on merits and finally decided after recording evidence. However this application was disallowed by the Rent Controller by order dated 6-11-1985. It was only then that the respondent's main application under section 32(4), which was stopped, could be heard by the Rent Controller and consequently the hearing was postponed for more than one year on frivolous and false pleas raised by the petitioner which were not even argued by her learned Counsel before this Court. None of these facts disclosed by Mr. Lotlikar could be disputed by the petitioner's learned Counsel who, however, had made a case to justify the petitioner's conduct on the ground that a point of jurisdiction raised by her does not necessarily reflects against her conduct or affects the petitioner's bona fides. It was urged that by so acting the petitioner only sought to avail whatever law points which could be opposed to preempt the attempts to seek for the petitioner's summary eviction on the strength of proceedings under section 32(4). The learned Counsel then urged that, inspite of the objections, the petitioner went on depositing the rents due regularly from February 1984 and there is also nothing on record to show that the respondent suffered any prejudice on this count since the petitioner did not oppose that the rents deposited be withdrawn by the respondent.
12. I am again in difficulty to understand what the petitioner's learned Counsel means when she contends that raising of flimsy legal points and thus protracting the due course of law does not amount to mala fide obstruction which has caused the respondent's main application under section 32(4) being delayed to be heard on merits for more than one year. This by itself has to be held not only as legally but also materially prejudicial to the respondent as a result of the petitioner's filing applications manifestly inconsistent with the stand throughout taken by her all along the litigation which was being entertained with the respondent right from the year 1980. This being the position I am satisfied that, when the petitioner admittedly deposited the arrears of rents due from May 1982 onwards only in the month of February 1984 it cannot be said that while doing so by the petitioner has so done bona fidely inspite of the previous defaults in paying the arrears of rents and that by her conduct she was assuring to the respondent smooth future payments of rents due. When the petitioner has disputed her status of tenant of the respondent and consequent liability to pay rents the question of bona fides and assurances does not and cannot arise. To this extent also the petitioner is not able to claim that she is covered either by the letter or spirit of the judgment in Satyavijay Tandel's case.
13. Now and while dealing with the aforesaid judgment in : (1990)92BOMLR580 must say that the observations made by the learned Single Judge have to be considered on the basis of the peculiar facts of that case and accepted only to the extent that they were required to decide the case on its facts. In my view the judgment is perfectly distinguishable and cannot be held as laying down an absolute proposition in law. It is therefore incumbent to find out what is the real ratio decidendi in the aforesaid case as there cannot be any dispute that in the matter of obiter dicta the same is binding on the courts only when such observations are made by the Supreme Court and not by any High Court. In the case in question the learned Judge appears to have taken into consideration various circumstances, namely, the fact that even at the time of making the application under section 32(4) one of the applicants filed an affidavit in which it was stated that the eviction proceedings had been instituted without her consent and that when evidence was given in these proceedings she herself admitted having received the rents from the lessee upto March 1981. The ruling also proceeded on the basis that the lessee continued to pay rents to one of the co-lassoers even during the pendency of the eviction proceedings and thus the rents had been actually paid by the tenant upto December 1982. However, when thereafter the lessors refused to accept further rents the lessee began sending the rents due by M.O. from January 1983, onwards which again were refused by the lessors. Thereupon only in November 1983 that the lessors filed eviction proceedings on certain ground being one of them the ground of arrears of rent. It is in this context that the learned Judge has held that section 32(4) should be resorted to sparingly since the same order aimed to check contumacious conduct on the part of the tenant. Further the decision was also given on the particular fact held by the Court that on the date of the application under section 32(4) the tenant had already- deposited all the arrears of rents due and therefore there was no question of the Rent Controller passing any further order. Besides, various other considerations were referred to by the learned Judge, namely, the fact that there was nothing to show as to what type of inquiry had been held by the Controller under section 32(3) whereby the tenant disputed the rents due and also the substance of the record showing that the tenant continued depositing the rents from time to time. The other consideration which was borne in mind by the Rent Controller is that the delay complained of was only of nine days. It is on the strength of this fact that the learned Judge has held that under section 32(4) the Controller gets jurisdiction to stop all proceedings and to evict the tenant summarily only if the tenant fails to deposit the rent amount and further fails to show sufficient cause as to why eviction order should not be passed against him. This, in my view, is the real ratio decidendi of the judgment strongly relied by the petitioner's learned Counsel. The observations made by the learned Judge in the said judgment that if the tenant on receipt of the show cause notice under section 32(4) pays the entire arrears due and assures further payment regularly there can be no order of eviction just because he had delayed in depositing in the past and therefore there is no question of the Rent Controller passing any further order virtually evicting the tenant without a trial are to be read and construed in the spirit of the legal requirement which enjoins that the tenant who has failed to pay the arrears of rents in time during the pendency of the eviction proceedings must show cause why further proceedings should not be stopped. Obviously a different reading of the judgment would render meaningless the provisions of section 17 of the Act and Rule 7 of the Rules apart from the very provision of section 32(4) of the Act which could not be certainly the view of the learned Single Judge of this Court. Besides, as submitted by Mr. Lotlikar, a different reading of this judgment would mean that the same appears to have been passed in curiam of a judgment earlier delivered by a Division Bench of this Court in the aforesaid case of Roque Antonio Ribeiro, 1989(2) G.L.T. 313. The learned Counsel has drawn my attention that the Court has expressly held in that judgment that under the contractual tenancy, the tenant is obliged to pay rent on the stipulated date and there is no provision under the Act which absolves him of that obligation. Even during the pendency of the eviction proceedings the tenant continues to be under an obligation to pay the stipulated rent regularly . Further section 32 of the Act renders the tenant liable for eviction even during the pendency of the proceedings if he commits default in payment of rent without reasonable cause . The rent has to be deposited within such time and in such manner as may be prescribed. The obligation to pay the arrears of rent and to continue to pay monthly rent is thus a statutory oblivion imposed upon the tenant as a condition for allowing him to contest the proceedings and the failure to discharge that obligation is made a sufficient ground to order his eviction even during the pendency of these proceedings. There is no provision in the Act which denies to the landlord the right to move the Rent Controller to put him in possession upon failure of the tenant to pay rent regularly during the pendency of the proceedings. Whether it is obligatory upon the Rent Controller to pass an order to put the landlord in possession no sooner than the tenant commits default is a matter to be considered separately but certainly there is no specific provision which takes away the right of the landlord to move the Rent Controller under section 32(4) to put him in possession of the building upon the tenant's default. Receipt of rent by the landlord during the pendency of proceedings without anything more does not amount to waiver. Thus if an application under section 32(4) filed by the landlord cannot be dismissed on the ground of waiver and that inspite of the landlord during the pendency of the proceedings having received the rents deposited by the tenant and not losing his right to request the Court, under the said sub-section (4) of section 32, to stop all proceedings and to seek a direction against the tenant to put him in possession of the building, it is obvious that the tenant cannot be said as entitled to preempt or defeat the landlord's right, by simply or merely depositing the rents in arrears prior or after the filing of the application under section 32(4), without showing sufficient cause for the delay.
14. In the case of Manmohan Hgur v. Surya Kant Bhagwani, : AIR1989SC291 the Supreme Court has observed that the Court must from a proper perspective judge the question whether the delay or failure to deposit the rents in terms of order under section 13 of the Act has been property explained and if that delay has been properly explained, then the Court has a discretion to excuse the delay. But if the delay has not been properly explained then the Court has no discretion. In construing this question the Court, in the scheme of the administration of justice, must take a constructive and purpose-oriented approach. Then the element of discretion comes into play though not in the form of directory or mandatory provision bat in considering whether the delay was properly explained or not. If the delay is explained then there is no delay and the Court in such a case cannot strike off the defence. If, on the other hand, the delay is not explained or the explanation is one which is not acceptable to the Court, then the Court must strike out the: defence and there is no discretion.
15. On the point of habitual defaulter this Court has also observed in the case of Mukesh Sawadia v. Vindo Gupta, : AIR1986Bom247 , that in this regard the tenant's mental attitude to remain in arrears has to be judged not from his subsequent conduct in effecting the payment of arrears of rents but from the conduct of non-payment of rents when the rents are due. It is thus this mental attitude of a tenant which should be a decisive factor to determine his real mind and/or his propensity to commit default.
16. In this view of the matter I hold that in the facts and circumstances of the case we are certainly dealing with a tenant whose attempts to explain her quasi habitual and continued delays in paying rents in time to the landlord have been shown as false in each and every case. Therefore to say the least, it does not appear to me to be a case in which this Court should interfere with the concurrent findings of facts given by the two Courts below which have held that there was no sufficient cause shown by the petitioner .to delay any regular and timely payment of rents to the landlord. In such circumstances the jurisdiction under Articles 226 and 227 of the Constitution does not appear to be warranted or justified.
17. Noting survives in this petition which is therefore bound to be rejected. Rule is accordingly discharged with costs.