SUMATI K SHIRODKAR Vs. TEREZINHA SERRAO

JUDGEMENT

(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. 1s (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 petitioners 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 petitioners case that the premises were continued to be occupied by members of his own family. When the petitioner filed her reply to contest the respondents 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 respondents 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 and Diu) 1990 (XCII) Bombay Law Reporter 580. 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 petitioners case within the purview of the aforesaid judgment in Satyavijay Anna Tandels case, reliance was placed in the case of (Tribhovandas Purshottamdas Thakkar v. Radial Motilal Patel and others) A. I. R. 1968 S. C. 372, 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) A. I. R. 1967 S. C. 1480. 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.