Bombay High Court
M/S. Ghatge Patel Transport Pvt. Ltd., ... vs Arun U. Salgankar on 4 March, 2025
2025:BHC-GOA:539
2025:BHC-GOA:539
WP-133-2025 (F) W WP-135-2025(F)
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 133 OF 2025 (FILING)
WITH
CIVIL APPLICATION NO.134 OF 2025 (FILING)
WITH
WRIT PETITION NO. 135 OF 2025 (FILING)
WITH
CIVIL APPLICATION NO.136 OF 2025 (FILING)
Ghatge Patel Transport Pvt. Ltd.,
Having registered oice at Pune-
Bangalore Road, Kolhapur,
Maharashtra-406003
And local oice at Ground Floor,
Manjunath Bldg., 18th June Road,
Panaji, Goa, represented herein by
its authorized representative, Shri
Ramchandra G. Naik, son of Shri
Gangaram Naik, major of age,
married, service, Indian National
and resident of House No.148,
Bhatpavani, Aronda, Sindhudurg, .... Petitioners.
Maharashtra-416513.
V/s.
Shri Arun U. Salgankar, son of Shri
Upendra Salgaonkar, 69 years,
Indian National and resident of
House No.128, Manjunath
th
Building, 18 June Road, Panaji,
Goa-403001. .... Respondent.
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4th March 2025
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WP-133-2025 (F) W WP-135-2025(F)
Mr. Sudin Usgaonkar, Senior Advocate with Mr Suraj Naik, Mr
Harihar S. Gaitonde and Mr Aniket Prabhu, Advocates for the
Petitioners.
Mr. S. D. Lotlikar, Senior Advocate with Mr Terence Sequeira,
Mr Sarvesh Sawant, Ms Sailee Kenny and Ms Neha Shirgaonkar,
Advocates for the Respondent.
CORAM : VALMIKI MENEZES, J.
DATED : 4th MARCH, 2025.
JUDGMENT:
Registry to waive objections and register these Petitions and connected Civil Applications.
2. Heard Mr Sudin Usgaonkar, learned Senior Advocate for the Petitioners and Mr. S. D. Lotlikar, learned Senior Advocate for Respondent.
3. Rule. Rule made returnable forthwith. With the consent of the learned Advocates for the parties these two Writ Petitions are disposed of inally.
4. In Writ Petition No.133/2025 (Filing), the Petitioner challenges order dated 28.08.2023 passed by the Principal District Judge, North Goa at Panaji dismissing Civil Miscellaneous Application No.7/2023, rejecting the Petitioner's application for condonation of delay of 136 days in iling a Rent Page 2 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) Appeal to challenge the judgment dated 30.07.2022 passed by the Civil Judge Junior Division, C Court, Panaji in Rent Case No.26/2016/C. he judgment dated 30.07.2022 passed by the Civil Judge/ Rent Controller in the Rent Case, directing eviction of the Petitioners in terms of Section 22(2)(a) and Section 23 of the Goa Buildings (Lease, Rent & Eviction) Control Act, 1968 ("Rent Act") has also been challenged in this Petition.
5. In Writ Petition No.135/2025 the Petitioners have, consequent to being directed by judgment and order dated 30.07.2022 of the Civil Court, to hand over possession of the suit premises, challenged an order dated 11.11.2024 of the Civil Court in Execution Application No.24/2022/C. In this Petition, the Petitioners have further challenged an order dated 02.01.2025 in a Rent Revision Application No.6/2024, passed by the District Judge-II, Panaji, dismissing the Petitioner's Revision Application under the Rent Act, impugned order dated 11.11.2024 of the Civil Court in the aforementioned execution proceedings.
Since all these orders challenged in the above two Writ Petitions arise from the same original eviction proceeding iled by the Respondent landlord against the Petitioners, they are disposed of by a common judgment.
6. he following undisputed facts would require to be referred to, and be considered for deciding the controversy in these Page 3 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) Petitions.
he suit premises which are subject matter of the rent proceedings and the execution proceedings arising therefrom are shops No.3, 4, 5 and 6, situated on the ground loor of Manjunath Bldg., Heliodoro Salgado Road, of 18th June Road, in the city of Panaji. he said four shops were leased to the Petitioner, a registered company, by their original owner late Krishna Janardhan Salgaoncar as one unit for a monthly rent of Rs.1,500/-. A rent proceeding No.ARC/2N/36/87 was iled by late Krishna Salgaoncar on 28.04.1987 seeking eviction of the Petitioners on two grounds, the irst being for non-payment/default in payment of rent and the second was for return of possession of the premises on grounds of personal requirement/occupation by the landlord. his proceeding was dismissed by the Rent Controller, which was challenged in Rent Appeal No.38/2013 before the Administrative Tribunal of Goa, which ultimately, with the conferment of the Appellate jurisdiction on the District Court, acting as the Appellate Board came to be dismissed on 04.02.2015.
7. On 03.09.2015 the successor of the original landlord late Krishna Salgaoncar, the Respondent herein issued a notice to the Petitioner pointing out the non-payment of rent amounting to arrears of Rs.18,000/-. he notice was sent to the Petitioner by the Respondent claiming to be the owner of the suit shops in Page 4 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) allotment in Inventory Proceeding No.38/1987/A conducted on the demise of Krishna Salgaoncar. Further, on 27.08.2016, yet another legal notice came to be issued by the Respondent to the Petitioner calling upon the Petitioner to pay rents to him amounting to Rs.18,000/-, from September 2015 till the notice; no reply came to be given by the Petitioners to this notice, after which on 26.10.2016 the Respondent instituted the present eviction proceedings bearing Rent Case No.26/2016/C before the Civil Judge Junior Division, Panaji on grounds raised under Section 22(2)(a) of the Rent Act, for non-payment of rent and under Section 23 thereof for obtaining possession on the landlord's bonaide requirement. According to the eviction application rents were due and payable by the Petitioner to the Respondent since September 2015. No reply came to be iled by the Petitioners opposing the eviction application on the aforementioned two grounds. So also, the Petitioner admittedly iled no application as required under the provisions of Section 32(1) and (2) of the Act seeking to deposit all arrears of rent, before contesting the matter.
8. Two issues were framed by the Rent Controller/Civil Court, the irst as to whether the applicant proves that he is entitled for an order of eviction on grounds of non-payment of rent, and the second, whether the applicant proves he is entitled to eviction on the ground of requirement for his personal Page 5 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) occupation under Section 23 of the Rent Act. It is not in dispute that throughout the pendency of the eviction application, no rents were deposited from month to month as was required under the provisions of Section 32 of the Rent Act right from 26.10.2016 till disposal of the rent case. It is also not in dispute that none of the arrears of rent due and payable by the Petitioner to the Respondent from May 2013 till October 2016 i.e. until the institution of the rent proceedings.
9. he Civil Court dismissed the application for eviction on 20.01.2018 against which the Respondent preferred Rent Appeal No.3/2018 which was ultimately allowed on 26.11.2018, setting aside the Civil Court's order dated 20.01.2018 and remanding the matter back to decide the case afresh on merits; the parties were directed to appear before the Civil Court on 20.12.2018. he Civil Court then recorded the evidence of the applicant/Respondent herein; no reply or written statement was iled by the Petitioner even then, and with the Petitioner's participation in the proceedings between 18.02.2021 and 06.04.2021, the evidence of the applicant/Respondent herein was recorded. Whilst the witness AW1 was under cross-examination, on 18.02.2021, the Petitioner was given a inal opportunity to cross-examine this witness, and costs of Rs.2,000/- were imposed upon it. On 09.03.2021 the Petitioner remained absent and cross-examination of AW1 was closed. hereafter, on 06.04.2021 Page 6 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) the Petitioner made an application for recall of the order dated 09.03.2021 and an opportunity to cross-examine AW1, but thereafter none appeared for the Petitioner and the application for recall came to be dismissed for default. No defence evidence was led thereafter by the Petitioner despite being given the opportunity. An eviction order came to be passed on 30.07.2022 allowing the eviction application on both grounds. his order was passed in the presence of the Advocate for the Petitioner.
10. Despite the order having been passed in the presence of the Advocate for the Petitioner, no appeal came to be iled to challenge the eviction order. he Petitioner claims that the eviction order actually came to its notice only on 06.12.2022 when the Executing Court issued a warrant of possession to the Petitioner, who was served with the same at the suit shop; the Petitioner claims that on receiving this notice, it iled on 28.12.2022, a Rent Revision No.5/2022 before the Appellate Board/District Court impugning the warrant of possession contained in the order dated 06.12.2022 in Execution Proceedings REXA No.24/2022/C. he said Execution Application came to be iled in November,2022 and the Petitioner claims that it iled objections to the execution proceedings raising grounds that the same were not maintainable as an application under Order 21 CPC; it contended that the provisions of the Mamlatdar's Court Act and provisions of the Page 7 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) Rent Act were applicable to cases of execution. It contended that the Executing Court had no jurisdiction to proceed in terms of Order 21 CPC.
11. It is further a matter of record that in the execution proceedings, the executing Court issued on 06.12.2022, a warrant of possession directing its Bailif to put the decreeholder/Respondent herein, in possession of the suit premises. Attempts by the Bailif to serve notice on the Petitioner and to obtain possession of the suit premises in execution of the decree appeared to have failed.
In the meanwhile, on 28.12.2022 the Petitioner iled a rent revision application No.5/2022 before the District Court/Appellate Board, impugning the warrant of possession issued by the executing Court on 06.12.2022. he Petitioner obtained an interim stay of the execution proceedings, at which time, it was pointed out before the Revisional Court that the Petitioner had failed to challenge the order of eviction dated 30.07.2022 nor had it deposited any arrears of rent before the Revisional Court.
12. Whilst the revision application was pending, the Petitioner then iled an appeal on 03.01.2023 before the District Court/Appellate Board, challenging the order of eviction dated 30.07.2022. With the memo of appeal, an application bearing Misc. Civil Application No. 07/2023 was iled, for condonation Page 8 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) of delay of more than ive months in iling the appeal. he main grounds for seeking condonation of delay cited by the Petitioner before the District Court was that its employee, one Mahesh Gaikwad, who was looking after the case before the Rent Controller and before the Administrative Tribunal till 24.05.2013, had left their services, and consequently they were not aware of the pendency of the proceedings for eviction. Along with the memo of appeal and application for condonation of delay, the Petitioner iled an application seeking to deposit arrears of rent from May,2013 till January 2023 (127 months) amounting to Rs.1,90,500/-; however, the said amount was not tendered either by way of attaching a demand draft or cheque, to the application, nor was any attempt made to seek an order to allow deposit of the arrears of rent, and thereafter from month to month, the rents due and payable to the Respondent, until the appeal was disposed of on 28.08.2023.
13. On 28.08.2023, the District Court/Appellate Board, by separate order, dismissed both, the application for condonation of delay in iling the Appeal (CMA No.07/2023) and the Revision Application No.05/2022 against the order dated 06.12.2022 of the Executing Court, issuing a warrant of possession. hese are the two orders impugned respectively in Writ Petition Nos.134/2025(F) and 136/2025(F).
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14. When the petition irst came up for hearing on 16.01.2025, it was pointed out by this Court to the Petitioner that the petitions were devoid of any statement recording its readiness and willingness to deposit the entire arrears of rent before this Court. Despite bringing this to the notice of the Petitioner, no application was moved to deposit the arrears of rent before this Court. However, it was only during the course of hearing of the petition on 13.02.2025 that learned Counsel for the Petitioner made a statement that the entire arrears amounting to Rs.2,24,000/- accumulated since May 2013 had been deposited before the Executing Court on 05.02.2025. A statement was also made during the course of hearing of the arguments that in the meantime, the Executing Court had executed the warrant of possession and had handed over possession of the suit shops to the Respondent. Nevertheless, the petitions are sought to be heard to test the legality of the orders impugned therein.
15. he orders challenged in Writ Petition No.134 of 2025(F) are of dismissal of the application for condonation of delay of 136 days in iling a Rent Appeal against the eviction order of 30.07.2023 passed by the Rent Controller/Civil Court and to the eviction order of 30.07.2022 itself. Apart from testing whether suicient cause was shown to condone the delay in iling the appeal, considering that the challenge in the petition was also to the eviction order of 30.07.2022 on its merit, this Court has Page 10 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) examined whether there is any merit in the challenge to the eviction order itself; this course was followed to examine whether, if the Petitioners had a strong case on merits, perhaps one could approach the question of condoning delay in iling the appeal with a more liberal approach.
16. he main submission advanced by the learned Senior Advocate Shri Sudin Usgaonkar for the Petitioner, were the following:
a. hat the Rent Controller has answered the two issues framed on the ground of eviction in favour of the landlord without addressing itself to the evidence on record. He submits that the Rent Controller has failed to consider that he had no jurisdiction to proceed with the passing of its order on the ground of bonaide requirement of the landlord, since that ground was not available to the Respondent, the premises being a commercial premise, not covered by the provisions of Section 23 of the Rent Act. It was further submitted that as on the date of the passing of the order of eviction, the judgment of this Court in Alcon Construction (Goa) Pvt. Ltd. v/s. State of Goa1 striking down the provision of Section 23 (1)(b) of the Rent Act restricting the recovery of possession 1 2023 (3) ALL MR 433, Page 11 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) for bonaide requirement of the landlord, only to residential premises, had not been passed;
consequently the judgment of eviction to the extent that it directed eviction on the basis of grounds under Section 23 of the Rent Act was without jurisdiction.
b. It was submitted that since the landlord had never iled an application for closing proceedings and seeking a direction from the Rent Controller under sub-Section 4 of Section 32 of the Rent Act for non-deposit of rent, there was no need for the Petitioner to deposit rent from month to month, either before the Rent Controller during pendency of the eviction application, or before the Appellate Board during the pendency of the appeal. No application having been iled by the landlord under Section 32, it could not be contended by the landlord now, in these proceedings that the appeal of the Petitioner was barred from being entertained, not only on the ground of limitation but for want of deposit of the arrears of rent.
c. It was then submitted that the application for condonation of delay contains suicient reasons to constitute cause to condone delay, and without considering these reasons, the District Court had rejected the application for condonation in a single paragraph, holding that the Petitioner was represented Page 12 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) by an Advocate before the Rent Controller hence there was no ground to allow the application. It was submitted that the District Court has, without making reference to the various averments in the application for condoning delay, dismissed the application; this is thus a case of total non-consideration of the record.
d. hat the Execution Application having been iled in the form provided under Order 21 CPC, in the light of the fact that the provisions of the Mamlatdar's Court Act and the Rent Rules themselves providing for the mode of execution, such proceedings were not maintainable under Order 21 CPC. he Executing Court ought to have rejected the Execution Proceedings as the same were without jurisdiction; consequently, the order issuing a warrant of possession was without jurisdiction.
17. Opposing the admission of the petitions the learned Senior Advocate Shri Saresh Lotlikar for the Respondent landlord advanced the following submissions:
a. hat subsequent to the judgment of this Court in Alcon Construction (Goa) Pvt Ltd (supra), the provision of Section 23 of the Rent Act would permit a landlord to recover possession for his own bona ide requirement even if the premises were commercial premises. He submits that recovery of possession for bonaide Page 13 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) requirement of the landlord is permissible even for a commercial premises and the provisions of Section 23 would equally apply to a residential building as it would to a commercial premises.
b. It was further argued for the Respondent landlord that the Petitioner has never deposited any rent from month to month during the pendency of the entire proceedings before the Rent Controller since October 2016 till its disposal on 30.07.2022. Consequently, the proceedings ought to have been stopped by the Rent Controller under Sub-section 4 of Section 32, and the Petitioner tenant ought to have been directed to put the Respondent landlord in possession of the premises. Further, it is the Respondent's submission that even while iling the appeal on 03.01.2023, the Petitioner has not tendered the deposit of the entire arrears of rent admittedly payable since May 2013, and just an application to deposit rent was made without actually tendering the arrears of rents by presenting a cheque or demand draft and seeking orders to deposit the said amount. Reliance is placed on a full Bench judgment of this Court in Dinanath Rama Naik v/s. Prabha Rane2 and on Leelali Javerbhai Mavany v/s. Maria Bemvinda da Costa3 in support of this submission.
2 AIR 2012 Bom 189 3 AIR 1973 GDD 41 Page 14 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) c. It was further submitted that the contention that the delay in iling the appeal before the District Court was due to the fact that the Petitioner was unaware of the pendency of the Rent Proceedings since their Oicer Shri Mahesh Gaekwad had left their services, was patently false as the proceedings were throughout contested and the Advocate of the Petitioner was present on the date the eviction order was passed. Further, the Petitioner, after receiving the warrant of possession on 06.12.2022, chose not to ile an appeal to challenge the eviction order but instead iled Rent Revision Application to challenge the warrant of possession, and it was only after it was pointed out to the District Court in these proceedings, that there was no challenge to the eviction order, that the Petitioner iled an appeal on 03.01.2023 seeking condonation of delay on false grounds.
18. I have gone through the records and proceedings of the Rent Case, the proceedings in Appeal and Revision as also the Execution Application. Since the question was raised, as to whether eviction proceedings on the grounds set out in Section 23 of the Rent Act seeking recovery of possession for bonaide requirement of the landlord are maintainable in relation to a commercial premises, this submission would have to be dealt with irst.
Page 15 of 304th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) As the provision stood, on the date of passing of the impugned order for eviction, i.e. 30.07.2022, apparently the provision of Section 23 of the Rent Act permitted eviction of a tenant on grounds of bonaide personal requirement only in relation to a residential building and in relation to a non- residential building used for keeping a vehicle or adapted for such use. However, the vires of the provision of Section 23, which restricted its application only to a residential premises was challenged before this Court in Alcon Construction (Goa) Pvt Ltd. (supra), which was decided on 07.02.2023, striking down the provisions to the extent of the use of the words 'residential' and the words 'which is used for the purpose of keeping a vehicle or adapted for such use'. he relevant part of the judgment is quoted below:
'92. he Rule is disposed of in each of these Petitions by making the following order:
(a) he portion in Section 23(1)(b) of the Goa Buildings (Lease, Rent & Eviction) Control Act, 1968, namely "which is used for the purpose of keeping a vehicle or adapted for such use", is struck down.
Similarly, the word "residential" in Section 23(3) is also struck down. Consequently, it is declared that the provisions of Section 23 of the said Act entitle a landlord to seek eviction of his/her tenant from non- residential buildings on the ground of bonaide requirement;
(b) In Writ Petition No. 726/2017, judgments and orders dated 18.10.2016 and 31.08.2017 made by the Rent Controller and the Appeal Court is set aside, and Page 16 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) the Rent Case No. 25/2013/C is remanded to the Rent Controller for fresh determination in accordance with Law and by following the directions in paragraph 89 of this Judgment and order;
(c) In Writ Petition No. 811/2019, the judgments and orders dated 01.09.2018 and 26.04.2019 made by the Rent Controller and the Appeal Court are set aside, and the Rent Case numbered as Regular Civil Suit No. 25/2014/I is remanded to the Rent Controller for fresh determination in accordance with Law and by following the directions in paragraph 90 of this Judgment and order;
(d) In Writ Petition No. 377/2019, the Rent Controller is directed to dispose of the Rent Case instituted by the Petitioner by considering the relief in terms of clause (a) above and the directions in paragraph 91 of this Judgment. All contentions of all parties on merits, except the issue of the constitutionality of Section 23, are left open;' Consequently, the provisions of Section 23 would apply to any premises, and the law as declared in Alcon Constructions (supra) would relate back to the date of the original registration, which in this case was the date of enforcement of the Rent Act with efect from 30.09.1969. As a result, the eviction order could have been passed by the Rent Controller, even though at the relevant time the decision of Alcon Constructions was not rendered, and as of today been upheld, on the basis that the provision of Section 23 equally apply to a commercial premises.
19. Having held that eviction proceeding under Section 23 for bonaide requirement of the Landlord is permissible even with Page 17 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) respect to commercial premises, the other issue which raises a question of maintainability, as argued by the Petitioners was that the Execution Application of the eviction order could not have been iled as an execution under Order 21 CPC. his objection to the maintainability of the execution proceeding, which is subject matter of Writ Petition 135 of 2025(F) was raised, contending that the Rent Act provided for a procedure for taking possession of a premises in the execution of an eviction order under Rule 13 of the GDD Buildings (Lease, Rent and Eviction) Control Rules, 1969(he Rules).
20. Rule 13 of the Rent Rules reads as under:
"13. Procedure for taking possession of the building and procedure for disposal of articles.-- Whenever an order is passed under the Act by the Controller or the Administrative Tribunal directing the taking of possession of any building or eviction of any person in occupation of any building, the following procedure shall be adopted in this behalf:-
(I) he Controller may authorise in writing a subordinate oicer, to take possession of the building or evict the person in occupation from the building, as the case may be.
(2) he oicer so authorized shall, at any time between the hours 8 a.m. to 7 p.m., visit the building and intimate in writing the person in actual possession of the building and the landlord, if he is residing in the same building or near about, that he will take possession after expiry of twenty four hours from the time of giving the said intimation, unless before the expiry of the said period, vacant possession of the building is handed over to him, or as the case may be, the person to be evicted Page 18 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) vacates the building. After the expiry of the period aforesaid, the oicer shall take possession of the building or evict the person in occupation of the building and may use such force as may be reasonably necessary for that purpose.
(3) If free access to the building is not aforded to the oicer authorised under sub--rule (1), he may after giving reasonable warning and facility to withdraw to any woman not appearing in public according to the custom of the country, remove or open any lock or bolt or break open any door or do any other act which in his opinion is necessary for taking possession of the building or evicting the person in occupation of such building.
(4) If at the time of taking possession of the building or evicting the person in occupation of the building, it is found that the building contains any furniture or any other articles which are not in the nature of permanent ixtures of the building, the oicer authorised under sub-rule (1) shall make a panchanama of such furniture and articles and as far as possible keep them locked in one room and put a seal thereon. He shall also submit a report alongwith the panchanama to the Controller.
(5) he Controller shall cause a notice to be pasted on the prominent place on the outer side of the building, calling upon the owner of the furniture and articles found in the building, to establish his ownership of the said furniture and articles and to carry them away within one month from the date of the notice. If the furniture or articles are not removed within the aforesaid period of one month, the Controller may cause the same to be sold by auction and to credit the sale proceeds to Government.
(6) he provisions of the foregoing sub-rules shall mutatis mutandis apply to the order passed by the Administrative Tribunal directing the taking of possession of any building or eviction of any person in Page 19 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) occupation of any building."
21. he provisions of Sub Rule 1 of the Rules empower the Controller to authorize a subordinate oicer to take possession of the building and evict the person in such occupation. Such oicer authorized by the Controller, may in terms of Sub Rule 2 evict the person in occupation of the premises and may use such force as may be reasonably necessary for that purpose. In the present case, since the powers of the Rent Controller under the Rent Act has been conferred upon the Court the Civil Judge Junior Division, it is the Bailif of that Court, when authorized under Sub Rule 1, who could exercise such force as would be reasonably necessary to execute the order of eviction.
22. his provision must be read with the powers conferred under Section 50 of the Rent Act, which reads as under :
"50. Execution of orders.-- An order made under this Act by any original, appellate or revisional authority directing the taking over of the possession of any building or the eviction of any person in occupation of any building shall be executable by that authority as a decree of a civil court and for this purpose that authority shall have all the powers of a civil court."
23. Section 50 of the states that an eviction order shall be executed by the authority as a decree of the Civil Court and for that purpose, the authority (in this case the Civil Judge) shall have all powers of a Civil Court. What this means is that an application for execution of an order, in whatever form it be iled, Page 20 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) would be executed by the Civil Court using all powers available to it under order 21 CPC in addition to the powers speciied in Rule
13. his does not mean that the Civil Court must follow the entire procedure provided under Order 21, but what the provision of Section 50 does, is to place at the disposal of the Rent Controller, all powers vested in a Civil Court to enforce its decree. I therefore hold that the application for execution was maintainable in whatever form iled and the Civil Court has exercised its powers, both under Section 50 and under Rule 13 in the manner provided by law. he Execution application must therefore be held to be maintainable.
24. Having held that the Execution application bearing No. 26/2022/C was maintainable, the impugned order dated 11.11.2024, passed by the Civil Judge Junior Division and the order dated 02.01.2025, passed by the District Court in dismissing Rent Revision No. 6/2024 and upholding order of 11.11.2024, is hereby conirmed. here is no inirmity of whatsoever in the application of the aforementioned provisions of law by both these Courts, warranting interference in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Consequently, Writ Petition No. 135/2025(F) is dismissed. In view of the dismissal of this petition Civil Application No.136/2025(F) also stands dismissed.
25. he next question to be answered is whether on grounds raised in Writ Petition No.134/2025(F), the impugned order Page 21 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) dated 28.08.2023 dismissing the application for condonation of delay in iling an appeal and order dated 30.07.2022 ordering eviction of the Petitioner calls for an interference.
Having held that the provision of Section 23 is equally applies to a commercial property, the main question to be decided is whether the two grounds set out in the eviction application for seeking eviction of the Petitioner had been made out based on evidence led by the Respondent and considered by the Rent Controller/Civil Court.
26. he irst ground on the basis of which eviction was sought was for non-payment of arrears of rent amounting to Rs.18,000/-, calculated at the rate of Rs.1,500/- per month. Admittedly, a notice dated 27.08.2016 was issued by the Applicant to the Petitioner on 27.08.2016, which was duly received but no payment of arrears of rent was directly made to the landlord nor was it deposited before the Rent Controller in terms of Section 17 of the Rent Act. here was also no denial to the quantum of arrears due. When the eviction proceedings were served on the Petitioner, no written statement came to be iled, but the Petitioner's name, at least in their application dated 13.01.2025 before the Appellate Court that their representative/employee Mahesh Gaikwad, who looked after the matter was regularly depositing rent before the Rent Controller from month to month till 24.05.2013. If this be true, by the very statement of the Page 22 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) Petitioner, it was admittedly in arrears of rent, prior to the iling of the rent proceedings, from 24.05.2013 till 25.10.2016 when the eviction proceedings were instituted pursuant to notice dated 27.08.2016.
27. In terms of Section 32(1) of the Rent Act, 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 unless he has paid to the landlord or deposited with the Controller all arrears of rent up to the date of deposit, and he shall continue to pay or deposit such rent which subsequently becomes due, until termination of the proceedings. In the present case, admittedly the arrears were due from 24.05.2013 (for May,2013) till 25.10.2016 when the proceedings were instituted, and were not deposited before the Rent Controller in terms of Section 32(1) of the Rent Act.
28. Further, the provision of Section 32(1) of the Act mandates the deposit of rent from month to month during the course of the proceedings, meaning thereby, the Petitioner was required to continue depositing rent at the rate of Rs.1,500/- for every month it became due from October 2016. Obviously, the statement made by the Petitioner in the application dated 03.01.2023, more speciically in paragraphs 3 and 4 thereof would demonstrate that there was total non-compliance with this provision.
Page 23 of 304th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) Under sub-Section 4 of Section 32 of the Rent Act, when a tenant defaults in the deposit of rent for every month, during the pendency of the proceedings, the Rent Controller on his own would be required to call upon the tenant to show suicient cause to the contrary, and such a cause is not shown, stop further proceedings and make an order directing the tenant to put the landlord in possession of the building. Here again, based on the fact admitted by the tenant that the Petitioner in the application dated 03.01.2023, no deposit was made of rent through out pendency of the proceedings. hus, the Rent Controller on his own motion ought to have stopped proceedings; this position has been airmed by the judgment of this Court in Leelali Javerbhai Mavadi v/s. Maria Da Costa reported in AIR 1973 Goa Daman and Diu 41 where, at paragraph 4 thereof it is held that the Rent Controller or Appellate Tribunal, as the case may be has the power under Sub-Section 4 of Section 32 of the Rent Act to, suo motu exercise this jurisdiction and stop proceeding where rent has not been deposited by the provisions of sub-Section (1) of Section
32.
28. In the present matter, instead of stopping proceedings, the Rent Controller has decided this issue on merit in the absence of evidence to the contrary being led by the Petitioners. After considering the evidence led by the landlord and considering the fact that it is an admitted position that not a single payment of rent or its deposit was done during the course of the proceedings, Page 24 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) or even a deposit of the arrears of rent, the ground for eviction for non-payment of rent under Section 22 was clearly made out.
29. Further, in terms of sub-section 4 of Section 32, when any eviction order is challenged before the Appellate board in revision or in appeal, the Appellant or revision petitioner is mandated to tender, along with the memo of appeal, all evidence of rent till the iling of the appeal and deposit the same, and continue depositing from month to month rents due to the landlord, during the pendency of the appeal or revision. A Full Bench of this Court, in Dinanath Rama Naik(supra), deciding a reference made in the following terms:
"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?"
29. Dinanathh Rama Naik(supra) answers this reference as to whether the provision of sub-Section (4) of Section 32 would be applicable as a condition precedent to maintain the appeal has answered the reference made to in the following terms:
"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 Page 25 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) 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 fulfils his obligation of paying the rent due as a condition of his seeking protection of the rent. The Page: 359section 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 Page 26 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) 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."
30. In the present case, though the Petitioner iled an application to deposit of arrears of rent along with the appeal, there was no tender of the deposit of arrears of rent or any attempt made to deposit the arrears of rent even before this Court when the petition came up for hearing. It was only after this was pointed out to the Petitioner, that the Petitioner deposited the arrears of rent of Rs.2,34,000/- before the Rent Appellate Board from May, 2013 to December, 2024, on 05.02.2025. his conduct of the Petitioner of failing to deposit the arrears of rent or the rents due from month to month before the Appellate Court, in terms of the ratio of Full Bench of this Court in Dinanath Rama Naik(supra) would disentitle the Petitioner to any relief in appeal.
31. he certain ground urged in the eviction case was bonaide requirement of the landlord for his own use. Evidence led by the landlord which was not challenged in the cross-examination. he Rent Controller has considered the evidence and concluded that from the deposition of the witnesses, the landlord was in possession of an extremely small shop in the city of Panaji which Page 27 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) was not suicient for conducting his business and for that reason sought to recover possession of the suit shops. In the absence of any evidence led to the contrary by the Petitioners to show that the requirement of the landlord has not bonaide, the evidence was accepted and eviction on this ground was also ordered. No inirmity can be found in the reasoning of the eviction order passed by the Rent Controller of either on these grounds.
33. he application for condonation of delay in iling the appeal was dismissed by the impugned order on 28.08.2023 mainly on the ground that the application contains patently false statements. he application states that one Mahesh Gaikwad was looking after the proceedings before the Rent Controller and after he left the services of the Petitioner, the Petitioner was not aware of the status of the case. he Petitioner claimed that he became aware only when they were served with the warrant of possession issued by the executing Court.
34. hese statements are, on the face of the application untrue. he application itself states that Mahesh Gaikwad was pursuing the rent case and deposited rent until 24.05.2013, after which he left the job. he present rent case was instituted only on 25.10.2016. Obviously therefore the said Mahesh Gaikwad was appearing in earlier rent case which was ultimately dismissed and deposited rent therein until 24.05.2013, and as obviously not Page 28 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) attended the second rent proceeding. In the present rent proceeding, the proceeding sheet itself records the presence of an Advocate to represent the Petitioner in the order of eviction dated 30.07.2023 itself records the eviction order being pronounced in open Court in the presence of Shri V. Shirodkar, Advocate appearing for the Petitioner. he Petitioner therefore had complete knowledge of the proceedings on 30.07.2023. Despite having this knowledge the Petitioner did not iled any appeal until 03.01.2024, more than ive months after knowing the eviction order is passed. he averments in the application for condonation of delay are patently false and there is actually no explanation whatsoever ofered in the application, for condoning delay. he Appellate Tribunal has correctly considered all these facts in the impugned order dated 28.08.2023 and has rejected the application. he reasons recorded in the application for refusing to condone delay are based on the record and no fault can be found with the same.
36. For all the aforementioned reasons, I ind no reason the exercise supervisory jurisdiction of this Court under Article 227 of the Constitution of India and accordingly the petitions stand dismissed. In view of the dismissal of the Writ Petitions, all connected applications stand disposed of. No costs.
he Respondent No.1 would be entitled to all the rents deposited by the Petitioner before the District Court in execution Page 29 of 30 4th March 2025 ::: Uploaded on - 24/03/2025 ::: Downloaded on - 29/03/2025 00:39:31 ::: WP-133-2025 (F) W WP-135-2025(F) proceeding No.24/2022/C. he amount deposited on 05/02/2025 before the executing Court in executing proceeding No.24/2022/C is Rs.2,24,000/-. he Executing Court shall transfer this amount to the bank account of Respondent No.1 which shall be provided by Respondent No.1 through a plain application, supported by his Aidavit. he said amount shall be released/transferred within four weeks of passing this order, and on such application providing the details of the bank account being iled by the Respondent No.1/Decree holder.
VALMIKI MENEZES,J.
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