Judgment:
F.I. Rebello, J.
1. The present appellants are the heirs of the original defendant and the present respondents are the heirs of the original plaintiffs. The original plaintiffs filed a suit against the original defendant being Civil Suit No. 30/69 before the Court of the Civil Judge S.D., Panaji. The suit was filed under Decree No. 43525 of the Portuguese Rent Legislation then applicable to the area where the suit house was situated. The cause of action insofar as the Plaintiffs were concerned was that the Defendant had failed to deposit the rent reserved and further the rent had also not been paid on time. The original Plaintiffs in paragraph 14 of the plaint claimed an amount of Rs. 8,665.32 on various counts as arrears of rent. The original Defendant contested the claim of the Plaintiffs. The Defendant contended that there was another proceeding between the parties which was disposed by judgment and decree dated 22.12.63 by making some observations. The said observations though pleaded are reproduced herein for the sake of narration:
It is arrived, finally, to the conclusion that the rent of these three rooms is not fixed it being only one that can be fixed. Until that the defendant would be able to be free from the obligation by paying or depositing the rent mentioned in the previous agreement. This account will be or can be adjusted when that proportionate division happens to be made in fact with respective effect, in view of the second clause of the agreement of November, 1961, Therefore, there is no ground to be considered the deposit of the rents effected by the defendant not exonerative.
The Defendant thereafter has pleaded that in the previous suit the Defendant had produced documents regarding deposit of rent upto November, 1962 and that it has not with the intention to conceal something from the plaintiffs because the deposits were made in the Bank. The defendant further pleaded that in terms of the lease contract the original plaintiff was bound to come to the shop of the defendant to recover the monthly rent; that the original plaintiff did not do so inspite of the defendant offering the same to the plaintiff and further that the Defendant was depositing the rents every month and the original plaintiff was acquainted with the fact of deposit of rents. It is further averred that the original plaintiff through his friend Advocate Dattaram Naik sent to the defendant an application mentioning therein all the accounts of deposit with full details for the signature of the original defendant to authorise the original plaintiff to withdraw the amount deposited. In fact, according to the original defendant he had signed the application authorising the original plaintiff to withdraw the amounts deposited. However, the original plaintiff did not move the Court to recover the amounts deposited by way of rent. The defendant further averred that the chalans are in possession of the original defendant.
2. Both the parties led evidence in the matter. The Trial Court was thereafter pleased to dismiss the suit filed by the original plaintiff against which the original plaintiff preferred an appeal to the Court of the Judicial Commissioner. By Judgment dated 31st January, 1981 in First Civil Appeal No. 101/77 the Acting Judicial Commissioner was pleased to set aside the judgment and decree of the trial Court and remand the suit for disposal afresh in the light of the observations made in the judgment. The questions framed by the Court of the Judicial Commissioner were:
(i) Whether the deposits made by the defendant are valid in law; and
(ii) Whether such deposits exempt him from being evicted from the suit premises.
3. The matter on remand was heard by the Civil Judge, S.D., Panaji. The Civil Judge S.D. by judgment dated 11th November, 1987 in paragraph 21 was pleased to hold that the deposits made by the defendant in the Bank were not valid and as such the deposits do not exempt the defendant from eviction from the suit premises. It may be pointed out before the trial Court it was also argued that subsequent to the filing of the proceedings, the provisions of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 had been made applicable to the area where the suit dwelling was situated and as such the provisions of Section 59 would be attracted. The Act will hereinafter be referred to as the Rent Act. The Civil Judge S.D. after hearing the arguments proceeded on the footing that the provisions of Section 32 were attracted and that the original defendant had violated Section 32 of the Rent Act and as such the original plaintiff was not entitled to protection of the Rent Act. It may also be noted that the original plaintiff had expired and his heirs had been brought on record during the pendency of the Civil Suit before the trial Court.
4. Aggrieved by the said judgment and decree of the trial Court, the original defendant preferred appeal before this Court which was numbered as First Appeal No. 10/88. The learned Single Judge by his judgment dated September 24, 1993 was pleased to dismiss the appeal preferred by the original defendant. The learned Single Judge held that it was true that the Plaintiff had not disputed the deposit of rent made by the original Defendant. The learned Judge then proceeded to say that what was disputed by the Plaintiff was the validity of this deposit i.e. the manner and the time of such deposits made which by no means can be said as having been done in accordance with the provisions of the Decree. The Court thereafter noted that though by Judgment dated 22.12.63 in the earlier proceedings the original defendant was permitted to deposit the rents in Court subject to the settlement of accounts and fixation of actual rent that could not dispense the Defendant from making payment of rent directly to the lessor i.e. the original plaintiff now represented by respondents, at least after the decision of the Administrative Tribunal in 1967. It may be noted that the Administrative Tribunal by its order dated 15.4.67 had determined the rent of the premises to be Rs. 96/- per month. The learned Single Judge then proceeded to hold that as the original defendant had not deposited the rents in Court, that the same having not been offered to and refused by the landlord and further the failure in the original defendant notifying the landlord after the deposits were purportedly made, have rendered the said deposits totally invalid in the eyes of law. The learned Single Judge thereafter proceeded to hold that as the deposits made were not valid in the eyes of law and therefore they could not exonerate the appellant from eviction and consequently he could not find fault with the decision of the trial Court. The learned Single Judge also rejected the plea of res-judicata raised by the original defendant based on the proceedings which were disposed of by judgment dated 22.12.63. The learned Single Judge also considered the provisions of Section 59 of the Rent Act and held on consideration of the judgments cited before him that Section 59 was not in the nature of minor modification and/or clarification but a totally new provision and in view of that, provisions of Section 59 could not be attracted to proceedings filed under Decree No. 43525 insofar as eviction on the ground of non-payment of rent. For the aforesaid reasons the learned Single Judge was pleased to dismiss the appeal and uphold the judgment of the trial Court.
5. Shri Dessai, Senior Counsel, appearing on behalf of the appellants, has contended that the judgment of the learned Single Judge has to be set aside. It is his contention that the provisions of Section 59 of the Rent Act were applicable and consequently once the said provisions were applicable then in terms of Section 22(4) of the Rent Act the benefit had to be given to the original defendant, more so considering the fact that it was an admitted position that the original defendant and subsequently his heirs had been continuously depositing the rent earlier in terms of the order of the Civil Judge pursuant to the judgment of 1963 and subsequently by various orders made in the proceedings at various stages of this every proceeding. It is the contention that this was a fit case where the Civil Court ought to have held in favour of the original defendant by granting him time to deposit the arrears of rent. In fact, he points out that there are no arrears, but assuming for the sake of argument, that it is held that the deposits made are not valid in the eyes of law, nonetheless he should have been given time to deposit the same before the Rent Controller whereupon the proceedings against him ought to have been dismissed. Shri Dessai has sought to rely on several judgments. I am not referring to the same as they need not come for consideration and are not relevant for the purpose of disposing of this appeal.
6. Shri Ramani for the respondents, contends that there is no infirmity in the judgment of the learned Single Judge and the learned Single Judge has correctly arrived at the conclusion that the provisions of Section 59(2) of the Rent Act would not be attracted as the provisions pertaining to Section 22(4) of the Rent Act does not amount to minor modification and/or clarification but in fact, is totally a new provision. He relies on the very same judgments cited by him before the learned Single Judge, being Karam Singh Sobti and another v. Pratap Chand and Anr. : [1964]4SCR647 , Brij Kishore and Ors. v. Vishwa Mitter Kapur and Ors A.I.R. 1965 S.C. 1574 : (1966) 1 SCJ 83 : (1961) (2), and S. Kartar Singh v. Chaman Lal and Ors : [1970]1SCR9 . The said judgments of the Apex Court have interpreted a similar provision under Section 57(2) Proviso one of the Delhi and Ajmer Rent Control Act (38 of 1952) which is parimateria with the provisions of Section 59(2) of the Goa Rent Act. Shri Ramani further contends that as held by the learned Single Judge, the original defendant may have deposited the rents, but this was not to the knowledge of the original plaintiff and as the rents have not been tendered to the original plaintiff and the fact of deposit having not been communicated to the landlord, in the eyes of law, it could not be said that the rents have been validly deposited and consequently eviction had to follow and as such the judgment of the learned Single Judge had correctly decided the questions involved in the matter.
7. We have heard counsel at length. It may be noted that there is no dispute that the proceedings were initiated under the provisions of the Decree No. 43525 which was the law applicable insofar as the eviction from the rented premises. It is also not disputed that during the pendency of the proceedings the provisions of the Rent Control Act were extended to the area where the premises were situated. There is also no dispute that the right to rescission of the contract on the ground of non-payment of rent arises if the tenant fails to deposit the rent as required by the provisions of the said Decree. Article 47 of the said Decree as translated will however have to be considered and it is being re-produced hereinbelow:
Article 47 : The right to the rescission of the contract on the grounds of non payment of rents expires as soon as the delay is put to an end the moment the lessee makes a payment or deposits the rents or the rent and indemnity, as may be the case, upto the time of contesting the suit which is pending.
In other words the Article 47 provides that before filing the written statement if rents are deposited the proceedings on the ground of non-payment of rent have to be rejected. This provision of the Portuguese law is akin to the provisions of Section 114 of the Transfer of Property Act which provides for relief against forfeiture for non-payment of rent. The said provision is also being reproduced as it is necessary for the purpose of deciding the issue arising in this appeal.
114. Relief against forfeiture for non-payment of rent. - Where a lease of immovable property has been determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.
The next relevant provision to be relied upon is Section 59(2) of the Goa Rent Act which is the provision pertaining to repeals and savings :
59. Repeals and savings. - (1) . . . .
(2). notwithstanding the repeal of the laws by Sub-section (1), all suits and other proceedings under a repealed law pending at the commencement of this Act before any court or authority shall be continued and disposed of in accordance with the provisions of the repealed law as if that law had continued in force and this Act had not been passed;
Provided that in any such suit or proceeding for the fixation of fair rent or for the eviction of a tenant from any building, the court or other authority shall have regard to the provisions of this Act;
Provided further that the provisions for appeal under the repealed law shall continue in force in respect of suits and proceedings disposed of thereunder.
8. Section 57(2) along with the proviso to the Delhi and Ajmer Rent Control Act is also being reproduced as it has a bearing on the issue to be decided in this appeal:
57.(2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed:
Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply, the court or other authority shall have regard to the provisions of this Act.
The language used in Section 59 of the Goa Rent Act and more so the first proviso to Section 59(2) of the Goa Rent Act and the language of proviso to Sub-section (2) of Section 57 of the Delhi and Ajmer Rent Control Act are in parimateria. The said proviso along with the section came up for consideration before the Apex Court which has interpreted the said sub-section along with the proviso in various judgments which will be adverted to later on. For the purpose of discussion certain provisions of Section 22, are also material and consequently are being reproduced:
22(1) - A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
(2) If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied -
(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;
(4) In any proceeding falling under Clause (a) of Sub-section (2), if the Controller on an application made to it is satisfied that the tenant's default to pay, tender or deposit rent was not without reasonable cause, he may, notwithstanding anything contained in Sub-section (3) or in Section 32, after giving the parties an opportunity of being heard, give the tenant a reasonable time, to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected.
9. Proviso to Section 57(2) of the Delhi and Ajmer Rent Control Act came up first for consideration before the Apex Court in the case of Section Kartar Singh v. Chaman Lal and Ors. (Supra). The Apex Court while considering the second proviso, in para 10 has observed as under:
We had said earlier that had Sub-section (2) of Section 57 stood by itself without the provisos, then the incontestable position would have been that the present case would be governed by the provisions of the Control Act of 1952. The question before us is, does the first proviso to Sub-section (2) make a change in the position and if so, to what extent? The first proviso states inter alia that in the matter of eviction of a tenant from any premises to which Section 54 does not apply, the court or other authority shall have regard to the provisions of the Control Act of 1958. Section 54 need not be considered by us as it merely saves the operation of certain enactments which do not apply to the premises under our consideration. What is the meaning of the expression 'shall have regard to the provisions of this Act' (meaning the Control Act of 1958)? Does it mean that the proviso takes away what is given by Sub-section (2), except in the matter of jurisdiction of the civil court to deal with an eviction matter which was pending before the Control Act of 1958 came into force? We are unable to agree that such is the meaning of the first proviso. We think that the first proviso must be read harmoniously with the substantive provision contained in sub-section (2) and the only way of harmonising the two is to accept the view which the Punjab High Court has accepted, namely, that the words 'shall have regard to the provisions of this Act' merely mean that where the new Act has slightly modified or clarified the previous provisions, these modifications and clarifications should be applied. We see no other way of harmonising Sub-section (2) with the first proviso thereto.
There is therefore a clear pronouncement of law by the Apex Court that in interpreting the language of the first proviso what is to be considered is whether the section sought to be relied upon is a mere modification and/or clarification. If that be the case then in terms of the proviso, the provisions in the new Act can be applied to pending proceedings filed under the old Act. In the case before the Apex Court what was being considered was the issue of sub-letting. However, the Apex Court had no occasion to consider whether in fact, the said provisions would amount to a minor modification or clarification as the matter was disposed of on other issues. However, the matter came up for consideration once again before the Apex Court in the case of Brij Kishore and Ors. v. Vishwa Mitter Kapur (Supra). In this case what was in issue before the Apex Court was some alterations and/or changes made in the suit premises by the tenant without the permission of the landlord and/or changes which were contrary to the conditions imposed by the Delhi Improvement Trust. Though notice was given the position was not restored. It however seems that during the pendency of the proceedings the alterations and/ or changes were removed and/or so made as not to affect any of the conditions imposed by the authorities. During the pendency of the proceedings, the old Act came to be repealed by the Delhi and Ajmer Rent Control Act wherein the relevant provision was as under. In order to decide the point that has been raised before us it is necessary to set out the corresponding section in the present Act which is Section 14. The relevant part of this section is in these terms:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;
14(11). No order for the recovery of possession of any premises shall be made on the ground specified in Clause (k) of the proviso to Sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.
The Apex Court while disposing of the matter considered the provisions of Section 114-A of the Transfer of Property Act. Section 114-A like Section 114 provides for relief against forfeiture in certain cases including a case where after notice where the tenancy had been determined for forfeiture of breach of express condition by notice, the lessee fails within reasonable time to remedy the breach. The Apex Court held that even under the old Act the provisions of Section 114-A were available to the Controller. In the instant case during the pendency of the proceedings the so called illegal constructions had been removed by the lessee. The Apex Court held that in view of the provisions of Section 114-A the Court had jurisdiction to grant relief of forfeiture against such breach. Thereafter considering the amendment brought about by Section 14(11), the Apex Court came to the conclusion that the said clause was merely in the nature of minor modification or clarification to the power which the Court had and consequently Section 14(11) would apply to the proceedings. Considering the judgment of the Apex Court in Brij Kishore v. Vishwa Mitter's case, can it be said that the provisions of Section 22(4) amount to a minor modification or clarification? Under the Decree No. 43525 itself the Court under Section 47 could have dismissed the application if the tenant had deposited the arrears of rent before filing of the written statement. Section 114 of the Transfer of Property Act similarly so provides giving to the Court power to avoid forfeiture of tenancy if the rents in default have been paid or security has been given. What Section 22(4) provides is that such a power is extended even at the final hearing of the matter if the Controller is satisfied that the failure to deposit or pay was on account of reasonable cause. In other words, it amounts to a minor modification to the power that the Court already had, be it under Section 47 of the Decree No. 43525 or for that matter under Section 114 of the Transfer of Property Act. We are unable to accept the case of Shri Ramani that Section 22(4) is totally a new provision and does not amount to a minor modification or clarification. In view of the above and in view of the proviso to Section 59(2) the provisions of Section 22(4) were applicable and the Civil Court was bound to consider the said provisions while disposing of the suit filed by the original plaintiff.
10. That brings us to the question whether in fact the original defendant had shown reasonable cause as to why he should not be evicted. Shri Ramani invites our attention to a decision of the Division Bench of this Court in the case of Shri Shaik Ibrahim Shaik Mahamad. Panaji - Goa v. Shri Joao de Andrade e Souza and others 1990 (2) L.T. 425. From the said judgment Shri Ramani contends that to avail of the benefit of Section 22(4) of the Rent Act the tenant must admit that he was in arrears of rent and had not deposited the arrears on account of reasonable cause. Shri Ramani points out that in the instant case the tenant is not claiming that he had not deposited, but on the contrary the tenant's case is that he had deposited the rent. Shri Ramani therefore contends that the provisions of Section 22(4) cannot apply to the facts of the case and that the original plaintiff now the respondent cannot avail of the benefit of Section 22(4) of the Rent Act. A reading Section 22(4) of the Rent Act shows the if that Controller is satisfied that the tenant's default to pay, tender or deposit rent was not without reasonable cause he may, notwithstanding anything contained in Sub-section (3) and/or in Section 32 after giving the parties an opportunity of being heard give the tenant reasonable time to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender the application shall be rejected. It is thus clear that the Rent Controller assumes jurisdiction where the tenant shows reasonable cause for default to pay, tender or deposit. In the instant case the argument on behalf of the original plaintiff throughout has been that the deposit made by the original defendant are non est. In other words they are no payments in the eyes of law. If they are no payments in the eyes of law, then surely the provisions of Section 22(4) of the Rent Act are immediately attracted. Even if it is held in the instant case that the Appellant had made payments by depositing them in the Treasury/Bank can it be said that the appellant herein cannot avail of the benefit under Section 22(4) of the Rent Act? Section 22(4) is a provision to avoid forfeiture. In the instant case on a perusal of the judgment of the learned Single Judge it can be seen that the respondents themselves have not disputed that the amounts have been deposited. The dispute is the manner of payment and/or deposit and it is on chat count that the learned Single Judge arrived at a conclusion that the appellant has entitled to be evicted. The finding of the learned Single Judge on that count cannot be faulted, for if under the Decree No. 43525 the tenant did not pay or make payment as contemplated by the provisions of Decree No. 43525 the plaintiff/landlord was entitled to a decree for eviction. However, on the provisions of Section 22(4) of the Rent Act being made applicable, the Rent Controller had power to avoid forfeiture by giving the tenant reasonable time to deposit the arrears. In fact it may be pointed out that earlier under the Goa Rent Act there was no provision to avoid forfeiture on the ground of non-payment of rent which has been subsequently brought in by Section 22(3) of the Rent Act. On the contrary, such a provision was contained in Section 47 of Decree No. 43525. From the records we find that the original plaintiff to the knowledge of the original defendant and or his representatives has been depositing the rent earlier pursuant to the order of the Court in 1962 and after 1967 he continued to so deposit. Thereafter he has been depositing under some order of the Courts. This therefore is a case where the original Defendant has shown reasonable cause and therefore he is entitled to the benefit of Section 22(4) of the Rent Act. The trial Court did not give the benefit to the appellant on the ground that the appellant/original Defendant had violated the provisions of Section 32 of the Rent Act. The learned Single Judge did not give the benefit on the ground that the provisions of Section 22 were not applicable. We find ourselves unable to subscribe to the view of either the trial Court or of the. learned Single Judge for the reasons aforesaid. We are therefore of the opinion that the original plaintiff and the present appellant is entitled to the benefit of Section 22(4) of the Goa Rent Act.
11. Section 22(4) of the Rent Act provides for reasonable time to be given to deposit or tender the rents to the landlord. In the instant case the defendant/appellant has been depositing rents in various forums. What Section 22(4) requires is an opportunity to the tenant to pay to the Controller. If therefore the benefit of Section 22(4) is to be given to the defendants/presents appellant the original defendants present appellants bound to pay all the arrears to the original plaintiff and now his successors.
12. The Judgment cited by Shri Ramani in the case of Kuldeep Singh v. Ganpat Lal and Anr. : AIR1996SC729 , is of assistance inasmuch as it shows that a deposit is a valid deposit in the eyes of law if the deposit is made by satisfying the provisions pertaining to deposit.
13. We have been informed at the Bar that Shri Jacinto Carlos Rosando dos Romedlos Furtado, respondent No. 2 has been appointed as Head of the Family in the Inventory proceedings and he represents the estate of the deceased original plaintiff. The appellant therefore to pay all arrears of rent in the hands of respondent No. 2 which will discharge the appellant insofar as the payment of rents are concerned. We have, with the assistance of the counsel, also quantified the rent that has become due and payable. We have quantified the rent upto September 30,1996, along with other demands as made in the plaint which have been rounded off to the nearest figure of Rs. 42,500/-. The landlord has been denied the rent for a long period of time for no fault of his. We therefore feel that the interest of Justice requires that some interest must be paid to the landlord. We quantify the same at Rs. 7500/-. In the instant case no doubt the appellant has succeeded, but that is purely on a Technical question on the interpretation of the proviso to Section 59. We are also of the view therefore that the appellant must bear the costs throughout. We therefore quantify the costs right from the trial Court to this Court in an amount of Rs. 2500/-. The total amount therefore due and payable by the appellant to the respondents to be paid in the hands of respondent No. 2 is Rs. 52,500/- which the appellant is bound to pay in the hands of respondent No. 2 by demand Draft on or before 30th October, 1996, irrespective of the fact whether such deposit by the appellant is received or recovered by him. The appellant on paying the Bank Draft in the hands of respondent No. 2 is permitted to withdraw the amounts lying in various Courts as well as in the Government Treasury and/or State Bank of India.
14. We are also informed that certain other proceedings for eviction of the appellants are pending before the Rent Controller. We make it clear that disposal of this application in no manner will interfere and/or affect the proceedings pending. Benefit given to the appellants herein will not in any manner affect the proceedings pending before the Rent Controller which shall be decided on their own merits.
15. We therefore pass the following order:- For the foregoing reasons, Letters Patent Appeal No. 7/95 is allowed and the judgment dated September 24, 1993 passed in First Appeal No. 10/88 and judgment and decree dated 11.11.87 in Civil Suit No. 30/69/D are set aside and consequently Civil Suit No. 30/69 stands dismissed. The appellant to pay to the respondents in the hands of respondent No. 2 as Head of the Family by Demand Draft the arrears of rent quantified at Rs. 42,500/- from January, 1962 to 30th September, 1996 with a further sum of Rs. 7500/- as interest quantified on the said sum. The appellant also to pay costs in the Suit, First Appeal and Letters Patent Appeal to the respondents which are quantified at Rs. 2500/-. All the above amounts to be paid by Demand Draft on or before 30th October, 1996. The appellant is permitted to withdraw the amounts deposited by him as rents in the various Courts as well as in the Government Treasury and/or State Bank of India.