Presented on :6/1/2023

Registered on: 7/1/2023

Decided On : 16/10/2023
Duration:0Years/9 Months/12 Days

IN THE COURT OF THE DISTRICT JUDGE-2

PANAJI, SITTING AT PONDA.
(Before Shri Cholu M. Gauns, District Judge-2, Panaji
sitting at Ponda)

CNR No. :GANG010000662023

Rent Appeal No.3/2023

1. Mr. Neves Ferrao,
Aged 60 years,
Son of late Mr. Francisco Ferrao,
(since deceased through LR’s)

1a. Mrs. Millie Ferrao,

Wife of late Mr. Neves Ferrao,
Aged 79 years, housewife,

RA No. 3/2023 Page 1 of 20

1b. Mr. Neville Ferrao,
Son of late Mr. Neves Ferrao
Aged 52 years, business,

1c. Ms. Maclaine Ferrao

Daughter of late Mr. Neves Ferrao,
Aged 50 years,

2. Mr. Tony Ferrao,

Son of late Mr. Francisco Ferrao,
Aged 79 years, married,

3. Mr. Cyril Ferrao, aged 76 years,

Son of late Mr. Francisco Ferrao,
(since deceased through represented by)

3a. Mrs. Rosaria Dias Ferrao,

Wife of Mr. Cyril Ferrao,
Aged 62 years, housewife,
All resident of House no.8/9/5(5)
Sadar, Ponda Goa. …. Appellants

Vs.

1. Mr. Carlos Fernandes,

Son of Mr. Fernandes,
(since deceased through heirs)

1a. Smt. Santana Fernandes,

Aged 60 years, housewife,
Wife of late Mr. Carlos Fernandes,

1b. Smt. Fatima Fernandes,

Aged 54 years, daughter of late Mr. Carlos
Fernandes and her husband

1c. Shri Wilson Fernandes,

RA No. 3/2023 Page 2 of 20

 Aged 59 years, son in law of
Late Mr. Carlos Fernandes,

1d. Smt. Anita Fernandes,

Aged 52 years,
Daughter of late Mr. Carlos Fernandes,

1e. Smt. Monica Fernandes,

Aged 48 years,
Daughter of late Mr. Carlos Fernandes
And her husband.

1f. Shri Santana,

Aged 50 years, son in law of
Late Mr. Carlos Fernandes,

1g. Shri Nicky Fernandes,

Aged 45 years, son of
Late Mr. Carlos Fernandes,
1h. Smt. Monica Fernandes,
Aged 42 years,
Daughter in law of
Late Mr. Carlos Fernandes,

All c/o Shop no.4, Ferrao Building

Sadar, Ponda Goa. ... Respondents

Appellants represented by Ld. Advocate V. Mauzekar.

Respondent represented by Ld. Advocate S. M. Tendulkar.

RA No. 3/2023 Page 3 of 20

 JUDGMENT
(Delivered on this the 16th day of the month of October, of
the year, 2023).

This is an Appeal filed against the order dated

28/11/2022 passed by Learned Civil Judge Junior Division,

B Court, Ponda in Rent Case no.08/2013/B.

2. The appellants were the applicants and the

respondent were respondent before the Trial Court. The

parties shall be referred in this Judgment as per the status

shown before the Ld. Trial Court.

Brief facts of the case:

3. Appellants are owners of suit shop no.4 located on

ground floor in the building known as “Ferrao Building” at

Ponda. The suit shop is orally leased to the respondent

since 1970, on payment of monthly rent of Rs.150/- and the

last rent fixed was Rs.1000/- from January 2003. The

respondent failed to pay rent of Rs.1000/- per month for 9

months. The respondent also effected material changes to

its premises by affixing collapsible gate. The son of

RA No. 3/2023 Page 4 of 20
applicant no.1c(b) Mr. Nevil Ferrao, wish to start his

business in suit shop. Hence filed an application for

eviction of the respondent from suit shop, before

Additional Rent Controller, Panaji under C.

No.BLDG/ARC/40/2003.

4. In the year 2013, jurisdiction to declare rent matters

was conferred on CJJD, hence matter came to be

transferred to Civil Court Ponda, which came to be

registered under Rent Case no.08/2013/B.

5. On 22/4/2022 applicants filed an application under

section 32(4) of the Rent Control Act, alleging that

respondent persistently defaulted in depositing monthly

rent within stipulated time as required under the law since

the time of commencement of proceedings in respect of

months/period mentioned therein in para (3) of the

application and hence prayed to stop further proceedings

and put applicants in possession of the suit shop.

RA No. 3/2023 Page 5 of 20

6. The respondent contested application by directly

arguing the matter.

7. The Ld. Trial Court heard arguments and by the

impugned Order dated 02/05/2022 dismissed the

application.

8. Being aggrieved by the above Order, the applicants

filed the present appeal on the grounds stated in the

memorandum of appeal.

9. Ld. Advocate V. Mauzekar argued on behalf of the

applicants/appellants. Ld. Advocate S.M. Tendulkar argued

on behalf of the respondent.

10. Short points that arise for my determination are:

1) Whether trial Court erred in dismissing

application under section 32(4) of Rent Act?

Ans: partly affirmative/as per order.

RA No. 3/2023 Page 6 of 20

 REASONS

11. Ld. Advocate Shri V. Mauzekar submitted, a

tenant against whom eviction proceeding is filed can

contest proceeding only if he pays arrears of rent and

continues to pay subsequent monthly rents within time

prescribed under section 17 read with 7 of the Rent

Act/Rules respectively. A tenant is bound to pay monthly

rent on or before 15th of the month next following month of

which it is payable. The respondent failed to pay monthly

rent within prescribed time from the year 2006 onwards

and till year 2022, immediately before filing application the

details of which are mentioned in para 3 of the application.

There is persistent default in paying rents within stipulated

time. Ld. Advocate read relevant part of the impugned

Judgment/Order and submitted the specifics of delay in

making payments is a matter of record and was available

for the court for perusal. In the light of the same finding of

the trial court that it was incumbent upon applicants to

specify specifically as to what is the delay for payment in

the application, the dates as to when the rent was to be

RA No. 3/2023 Page 7 of 20

paid, and dates as to when they were paid by respondent

and that there is no time specified for payment of rent and

no specific date has been fixed and therefore application

fails, is against law contained in section 17 of the Rent Act

and Rule 7 of the Rules. Further findings of the Ld. Trial

Court to ask cause for delay that occurred 16 years back as

observed, is against the facts on record as delay in payment

started in 2006 and it persisted till the year 2022. The trial

court gave said findings on the premise that delay is only

for the year 2006. Ld. Advocate submitted order is perverse

and prayed that the same be quashed and set aside and

application under section 32(4) be allowed.

12. Ld. Advocate S.M. Tendulkar read section 22(4) and

32(4) of Rent Control Act and submitted that both sections

requires tenant to show cause for delay in payment, and

only upon failure to show cause for delay, rent controller is

empowered to pass an order to stop proceedings and order

eviction. To enable tenant/respondent to show cause for

delay in payment of rents it was incumbent upon applicants

RA No. 3/2023 Page 8 of 20
to specify exact delay in payment of rents for the months

indicated in para (3) of the application. The application

under section 32(4) of Rent Act lacks specifics of delay

which was must, therefore trial courts finding referred by

Ld. Advocate for applicants is perfectly correct. Ld.

Advocate further submitted, delay is alleged to have

occurred in 2006 i.e. 16 years back. No prudent man will

remember the reason for delay that happened 16 years back

and as such it has been rightly found by Ld. Trial Judge

that to call upon respondent to explain delay that occurred

16 years back is absurd. Ld. Advocate further submitted

lease was oral. There is no contract fixing date for payment

of monthly rents. Being so, details was necessary which is

lacking. Ld. Advocate submitted trial court order is

perfectly fine and prayed to dismiss the appeal.

13. I have duly considered arguments and material on

record.

RA No. 3/2023 Page 9 of 20

14. Under sub-section (1) of Section 32 of Rent Act,

tenant against whom eviction proceeding is initiated is

under obligation to pay all arrears of rent and continue to

pay/deposit rent which may subsequently become due until

termination of proceedings or else he is not entitled to

contest proceeding.

15. Under sub-section (2), the deposit of such rent must

be made within such time as may be prescribed.

16. Section 17 of the Act prescribes payment of

subsequent rents within time fixed by contract, or, in

absence of such contract by fifteenth day of the month

following the month for which it is payable.

17. Sub-Rule (2) of Rule 7 of Rent Act, also prescribes

payment/deposit of rent which may subsequently become

due within 15 days from the date on which such rent

become payable by tenant.

RA No. 3/2023 Page 10 of 20

18. It is not in dispute that suit lease being oral, there is

no time fixed by contract to deposit the rents. Therefore, in

absence of contractual date the tenant would be required to

pay rents which may subsequently become due within

fifteen days from the date on which such rent become

payable by him as provided in second part of Sub-Section

(1) of section 17 of Rent Act and Rule (7) of the Rules.

19. The rents which respondent is required to

deposit/pay as above is determined by Rent Controller in

its Order dated 18/6/2004. The respondent was allowed to

deposit arrears of rent amounting to Rs.8,500/- for period

from January 2003 to May 2004 at the rate of Rs.500/- per

month on or before 30/6/2004 and respondent was

allowed to deposit rents which subsequently became due at

the same rate every month within period specified under

sub-Rule 7(2) of Rent Rules. Thus, the date by which

monthly rents were payable has been already determined

by rent Controller in its order i.e within time fixed under

sub-rule 7(2) of rent Rules. In view of the law contained in

RA No. 3/2023 Page 11 of 20

section 17 and Rule 7, trial courts finding that applicants

failed to aver as to the date on which rents were payable

and that there is no specific date fixed is not correct.

20. As to the specifics of delay in paying rents, same is

grounded in para 3 of the application. It is stated rentals for

the month of February 2006, June 2013 to January 2014,

March to April 2020, month of January to November 2021

onwards. It is further submitted that the respondent is

irregular in making payment of rentals whenever made as

clear from the records of the above case.

21. These are the only details of the delayed payment of

rents averred in the application under section 32(4).

22. Sub-Section 4 of section 32 provides that, if any

tenant fails to pay or deposit the rents as provided under

sub-section (1), the controller or appellant or revision

authority, as the case may be, shall unless the tenant shows

“sufficient cause” stop all further proceedings and make an

RA No. 3/2023 Page 12 of 20

order directing tenant to put the landlord in possession of

the building.

23. Thus, sub-section (4) contains stringent provisions

and have very serious consequences of stopping all further

proceedings and directing tenant to put the landlord in

possession of the building. Therefore, irrespective of the

merits of the case and age of the proceedings, if tenants

commit default or delay in paying subsequent rents, it

enables landlord to walk away with bonanza, of stopping

proceedings and getting possession of building, unless

tenant shows “sufficient cause to the contrary”. Thus,

giving proper opportunity to the tenant to show sufficient

cause to the contrary for delayed payment assumes

importance.

24. In the case of Datta Anant Ghadi V/s Smt.

Guilermina Silveira 2000(1) Goa L.T. 39, Division

Bench of the Hon’ble Bombay High Court at Goa relied

upon Judgment of Divisional Bench of Bombay High Court

RA No. 3/2023 Page 13 of 20

at Goa in the matter of Roque Antonio Judas Tadeu

Caeteno Ribeiro V/s Agnelo Cassiano Neves e Souza and 4

others reported in 1989(2) Goa L.T. 313 on the question

whether provisions contained in section 32(4) of Goa Rent

Act are of mandatory nature or not and Ld. Hon’ble

Division bench summarized ratio of the Judgment of

Roque Rebeiro (supra) in paragraph 12 of its Judgment as

under: “Considering the fact that the said Act is basically a

beneficial legislation with an object of providing control

over the rent to be charged and the eviction of tenant, even

though the provision in section 32 of the said Act are with

the intention to secure regular payment of rent by the

tenants to the landlords pending the proceedings for

eviction, it was held by the Division Bench of this Court

that the said proceedings under section 32(4) are not

mandatory in nature, but are directory. In other words, it is

held that merely because there is default in depositing the

rent by the tenant during the pendency of the proceedings,

that would not automatically result in eviction of the

tenant. On the contrary, the Rent Controller in such

RA No. 3/2023 Page 14 of 20

situation is enjoined to give proper opportunity to the

tenant to show cause against stoppage of the proceedings

on account of default by the tenant in depositing the rent.

Such an opportunity will permit the tenant to put forth his

case against stoppage of the proceedings inspite of the

default and the Controller is bound to consider the

explanation given by the tenant in proper perspective

before deciding either to stop the proceedings or to

condone the default”.

25. Thus, as laid down by Hon’ble Division bench in case

of Roque Rebeiro (supra) read with mandate of sub-section

4 of section 32, the tenant is required to be given proper

opportunity to show cause against stoppage of the

proceedings on account of default in payment/deposit of

rents, to enable tenant to put forth his case against

stoppage of proceedings.

26. The “proper opportunity to show cause” referred to in

the judgment (supra) would require details of the defaults

RA No. 3/2023 Page 15 of 20

on each default projected by landlord as a ground for

stoppage of proceedings.

27. In case in hand applicant has indicated multiple

instances of delayed deposit of rents for number of months

in para 3 of the application ranging from year 2006 to

2022. The respondent in his submissions has denied

alleged delayed deposit/payment of rents. He has claimed

that he has regularly paid the rents. He has stated

applicants have not specified, as to what was the delay, if

any in depositing rents for the period/months indicated in

the application so as to enable him to file detail reply. Ld.

Trial Court upheld above objections of the respondent and

held that it was incumbent upon applicant to state as to

what the delay was in depositing rents. The applicant

cannot expect court to go into all records and find out if

there is delay and asked respondent to explain. Above

finding is based on the facts and as such cannot be faulted.

RA No. 3/2023 Page 16 of 20

28. It can be seen from above that Ld. Trial Court upon

examining application felt, application under section 32(4)

contains no specifics of default/delay to enable it to call

upon respondent to explain delay. This difficulty expressed

by Ld. Trial court demonstrate that though respondent was

served with the copy of the application for stoppage of

proceedings filed under section 32(4) of the Rent Control

Act, which then has been replied by the respondent there

was no proper show cause by the court calling upon

respondent to explain cause to the contrary within meaning

of sub-section 4 of section 32 and the ratio laid down by

Division Bench in Roque Rebeiro Case (supra). In its reply

respondent has contested application of the applicants

prominently on the said point.

29. While hearing of this appeal, Ld. Advocate for the

appellants realizing this lacuna has filed an

application/memo placing on record the chart of deposit of

rentals by the respondent during pendency of the

proceedings. This application came to be granted by this

RA No. 3/2023 Page 17 of 20

court by order dated 29/8/2023 whereby the appellant was

allowed/permitted to produce on record said chart for the

purpose of ready reference.

30. I have gone through the chart and found that it

contains all specifics/details of multiple defaults/delay in

payment/deposit of rents by respondent which are

indicated in para 3 of the application. This chart was not

filed before the trial court. There was no opportunity for

the trial court to appreciate said chart and call upon

respondent to show cause for the alleged default/delay in

payment/deposit of rent.

31. In the matter of Rosy Manwindra and another

V/s Audhut Govind Tilve 2019(1) Goa CP 271, similar

chart was produced, for the appreciation of the court to

arrive at just findings on delay/default in

depositing/paying subsequent rents. The specifics of

delay/default in depositing rent in my opinion is necessary

to enable court to call upon respondent/tenant to show

RA No. 3/2023 Page 18 of 20

cause for delay/default in depositing rents, which trial

court could not do for want of chart. Since now proper

chart is available, to enable trial court to call upon

respondent to show cause to the contrary, without further

appreciating the matter on merits, I find that this is a fit

case to remand matter to the Ld. Trial Court to re-decide

the application under section 32(4) of the Rent Control Act.

32. In view of the above, my answer to the point for

determination is partly in affirmative and the following:

ORDER

The impugned order is quashed and set aside.

The matter is remanded to Ld. Trial Court to re-

decide application under section 32(4) of Rent Act, after

giving show cause notice to the respondent as

contemplated under section 32(4), based on the

specifics/details of default of payment/deposit of rents

indicated in para (3) of the application and specifically

reiterated in the chart produced in this revision for ready

reference. This chart shall be placed on the records of the

RA No. 3/2023 Page 19 of 20

trial court to enable trial court to issue specific and proper

show cause to the respondent to show to the contrary.

Parties shall appear before the trial court on

23/10/2023 at 10.am.
Digitally signed
Proceedings closed. CHOLU by CHOLU
MOGA GAUNS
MOGA Date:
GAUNS 2023.10.16
12:51:18 +0530
(Cholu M. Gauns)
District Judge-2, Panaji,
Sitting at Ponda.
Dated: 16/10/2023
Sf*

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