Dinanath Rama Naik, (Since Deceased) Through Legal Heirs and Others Vs. Smt. Prabha Rane - Court Judgment

S.A. BOBDE, J.

Heard Shri A. R. Kantak, learned Counsel appearing for the petitioners and Shri C. A. Coutinho, learned Counsel appearing for the respondent.

2. Since a learned Single Judge, Lavande, J being unable to agree with the judgment of the Division Bench in Mrs. Damayantiben Shivaji Chauhan V/s Dr. Dinesh Parekh and others reported in All India Rent Control Journal 1988(1) 520 having regard to the view taken by the another Division Bench in Maria Madeira e Fernandes V/s Vishnu Mahadeo Kanekar, reported in AIR 1987 Bom. 240 has referred the following question.

“Whether in an appeal preferred by a tenant against an order of eviction passed by the Rent Controller an application under Section 32(4) of the Goa, Daman and Diu Building (Lease, Rent and Eviction) Control Act, is maintainable, at the instance of the landlord on the ground that the tenant has not deposited the rents due during the pendency of the proceedings before the Administrative Tribunal ?”

3. Section 32 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (herein after referred to as 'the Act') reads as follows:

“32. Payment or deposit of rent during pendency of proceedings for eviction.-

(1) No tenant against whom a proceeding for eviction has been instituted by a landlord under this Act shall be entitled to contest the proceedings 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 in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate or revisional authority.

(2) The deposit of rent under sub-section (1) shall be made within such time and in such manner as may be prescribed.

(3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-section(1), the Controller or the appellate or revisional authority, as the case may be, shall, on application made either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited.

(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 proceedings and make an order directing the tenant to put the landlord in possession of the building.

(5) The amount deposited under sub-section(1) may, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf.”

4. According to Shri A. R. Kantak, learned Counsel appearing for the landlord who has sought eviction of the tenant under Section 22(2)(a),(b),(c),(d) and (f) of the Rent Act, a landlord is entitled to make an application under Section 32(h) to stop further proceedings if the tenant has failed to pay or deposit the rent as contemplated by this Section and further obtain an order directing the tenant to put the landlord in possession of the building.

5. In the present case, the Rent Controller passed an order of eviction of the tenant. The tenant preferred an appeal before the Administrative Tribunal. The landlord filed an application under Section 32(4) of the Rent Act enclosing a chart showing the default committed by the respondent. The Tribunal relied on the judgment of this Court in Mrs. Damayantiben Shivaji Chauhan referred to (supra) and dismissed the application for stopping of the proceedings and obtaining possession under Section 32(4) of the Rent Act.

6. A Division Bench of this Court in Mrs. Damayantiben Shivaji Chauhan (supra) took the view that in an appeal filed by the tenant against the decree for eviction, a landlord could not have made an application before the Appellate Court for stopping the proceedings and obtaining possession; and that such an application can only be made before the Rent Controller at the original stage. Therefore, the order passed by the Appellate Tribunal under Section 32(4) of the Rent Act for stoppage of further proceedings and directing the tenant to put the landlord in possession of the premises for failure to pay or deposit the rent before the Rent Controller was without jurisdiction. The Division Bench thus considered the question whether a tenant's appeal or a revision before the Tribunal was not maintainable where the tenant had not paid the rent and any arrears. On a construction of the Section 32 along with Rule 7, it arrived at the following conclusion, vide para 6 of the judgment which reads as follows:

“6. The conclusion in the circumstances is therefore inescapable 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 as the case may be, cannot be dismissed on the ground either of his failure to pay the rent or to deposit it either simultaneously with or after the institution of the appellate or revisional proceedings”.

7. Rule 7 reads as follows:

“7. Time within which and the manner of making a deposit of rent under Section 32. – (1) A tenant against whom proceeding for eviction has been instituted by a landlord under the Act, shall deposit all arrears of rent due in respect of the building within one month from the date on which notice is served on him for the first time about the said proceedings before the Controller (or) the appeal or the revisional proceedings before the appellate or the revisional authority, as the case may be.

(2) The tenant referred to in sub-rule (1) shall deposit the rent which may subsequently become due in respect of the building within fifteen days from the date on which such rent became payable by him.

(3) The provision contained in sub-rules (1) to (3) of Rule 5 shall mutatis mutandis apply to deposits made under this rule.”

In other words, the Division Bench has held that since sub-section (2) of Section 32 provides for deposit of rent in such a manner as may be prescribed and that since no rules have been framed for prescribing the manner in which the rent may be deposited by the tenant when the tenant preferred an appeal or revision cannot be dismissed on the ground of his failure to pay the rent. Thus, in effect the prohibition enacted by sub-section (1) that the tenant was not entitled to contest the proceedings or any proceedings before the Controller or any appellate or revisional authority unless he pays rent will not operate in an appeal or revision by the tenant. The learned Single Judge who referred the matter has noticed the other view taken by the Division Bench in the case of Maria Madeira e Fernandes V/s Vishnu Mahadevo Kanekar, AIR 1987 Bom. 240 in which it is held that Section 32 is applicable to the proceedings not only before the Rent Controller but also before the appellate and revisional authority and no tenant can be allowed to get away without depositing arrears of rent. The other judgments have been brought to our notice which are consistent with the view taken in Maria Madeira e Fernandes' case ( supra ). It is however not necessary to refer to those decisions.

8. The question that falls for determination is whether in an appeal preferred by the tenant against an order of eviction, the landlord can apply for the stoppage of the proceedings and delivery of the possession on the ground that the tenant has not deposited the rent due during the pendency of the appeal before the Administrative Tribunal?. Section 32 (1) enacts an unequivocal prohibition restraining against the tenant from contesting the proceedings for eviction whether before the Controller or any appellate or revisional authority or to prefer an appeal or revision under the Act unless he has paid to the landlord or deposits with the Controller or the appellate or revisional authority, all the arrears of rent in respect of the building up to the date of the payment and continues to pay or deposit such amount until the termination of the proceedings. In short, it disentitles the tenant from contesting the proceedings for his eviction unless he has paid and continues to pay the rent. The intention of this provision is to prevent multiplicity of proceedings whereby the landlord who is seeking eviction is compelled to institute other proceedings against the tenant for recovery of the rent. The provision also intends to ensure that a tenant fulfills his obligation of paying the rent due as a condition of his seeking protection of the rent. The Section expressly applies to all stages of the proceedings of eviction and up to the termination of the proceedings before the appellate or revisional authority. In terms, Section provides that the tenant cannot contest the proceedings or prefer any appeal or revision under the Act unless he has paid the rent to the landlord or deposited with the authority before whom the proceedings are pending and continues to do so till the termination of the proceedings before the Controller or the appellate or revisional authority. There is thus no scope for construing the provision in a manner that enables a tenant to withhold the rent if he has filed an appeal against his eviction as held in Mrs. Damayantiben Shivaji Chauhan's case. It is notable that the tenant is so prohibited, not depending on whether he is an appellant or an respondent in the appeal or revision but against him qua his character as a tenant against whom a proceeding for eviction has been instituted by the landlord. Thus, a tenant against whom a proceeding for eviction has been instituted by the landlord is not entitled to contest the proceedings before any appellate or revisional authority or even to prefer an appeal or revision unless he has paid all arrears of rent and continues to do so till the termination of the proceedings.

9. Mr. C. A. Coutinho, learned counsel appearing for the tenant has submitted that in Maria Madeira e Fernandes V/s Vishnu Mahadeo Kanekar and other cases that a tenant intend to deposit rent and the landlords had filed an appeal. It is not possible to accept this contention in view of the unequivocal obligation cast on the tenant to make the payment of rent to the landlord or deposit the same before the Rent Controller or the appellate or revisional authority. Section 32 lays down as a condition that “no tenant shall be entitled to contest the proceedings 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..............” These words clearly indicate that Section 32 cast an obligation on the tenant to pay the rent even when the tenant files an appeal or revision under the Act and not only when a landlord files such an appeal or revision.

10. We would note here the observations made in the judgment reported in (2003) 1 SCC 123 in the case of E. Palanisamy V/s Palanisamy ( Dead) by Lrs. and others, wherein it has been held that the rent legislation is normally intended for the benefit of the tenants. At the same time, the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters. The tenant has to observe the procedure as prescribed in the statute. Strict compliance with the procedure is necessary and the tenant is not entitled to deviate from the procedure as stipulated in the rent statute.

11. The Division Bench in Mrs. Damayantiben Shivaji Chauhan's case has observed that Rule 7 which prescribes the time and manner of making deposit of rent does not apply to the case of a tenant who has filed an appeal. That, therefore, it cannot be said that there is any Rule which governs the deposit of rent, since no manner is prescribed. This view, is not acceptable since the head note of the Rule prescribes the time limit and the manner for making deposit of the rent under Section 32. Section 32 wants a clear prohibition against a tenant to prefer an appeal or a revision unless he has paid to the landlord or deposit with the authority all arrears of rent. Then the time and manner is provided by this provision. The payment must be simultaneously with or before the appeal or revision is preferred and should be either directly to the landlord or deposits with the authority. This is probably why Rule 7 does not deal with a case where the tenant files an appeal. In this view of the matter, we answer the question in the affirmative and hold that an application under Section 32(4) of the Rent Act is maintainable at the instance of the landlord on the ground that the tenant has not deposited the rent due in an appeal preferred by the tenant against an order of eviction passed by the Rent Controller. Accordingly, the Writ Petition shall be placed before the appropriate Bench for disposal.