Presented on :11.07.

2023
Registered on:19.07.2023
Decided on :03.11.2023
Duration: Years/Months/Days
00 03 23

IN THE COURT OF THE AD-HOC DISTRICT

JUDGE-2 (FTC-2) PANAJI
(Before Ms. Saee Prabhudessai, Ad-hoc District Judge-2,
(FTC-2) Panaji)

CNR No.: GANG010015812023

Rent Appeal No. 11/2023

1. Mr. Namdharak N. Nadkarni,

major in age, around 81 years,
Indian National, married, (since deceased)
Represented by his LRs:
a) Kumud Nadkarni(widow),
aged around 80 years
Rent Appeal No.11/2023 Page 1 of 15
 b) Sanjeev Nadkarni (son)
aged around 53 years,
c) Pooja Nadkarni (daughter in law),
aged around 48 years.

all residents of H. No.11/122,

behind Sita Smruti Building,
St. Inez, Panaji, Goa. .… Appellants

Vs.

1. Mr. Ghanasham M. S. Kantak,

(since deceased) 80 years of age,
Indian National, Married,
Businessman, residing at Palm Grove,
B-Bldg., Flat No.G/1, Tonca,
Caranzalem, Goa
represented by his LRs:
1(a) Smt. Sudha G.Kantak,
widow of late Ghanasham Kantak,
aged 81 years, housewife,

1(b) Mr. Vishal G.S.Kantak,

son of late Ghanasham Kantak,
aged 47 years, service, and his wife,

1(c) Mrs. Mayura V. S. Kantak,

aged 34 years, service,

1(d) Mrs. Vandana C. Nadkarni,

daughter of late Ghanasham Kantak,
aged 45 years, housewife,
and her husband,

1(e) Mr. Chandrashekar G. Nadkarni,

aged 49 years, business,

All residents of Plam Grove,

B. Bldg., Flat No.G/1, Tonca,
Caranzalem-Goa. …... Respondents.
Rent Appeal No.11/2023 Page 2 of 15
Appellants represented by Ld. Advocate Shri. Ninad Kamat.
Respondents represented by Ld. Advocate Shri. Laximikant
Halornekar.

JUDGMENT
(Delivered on this the 3rd day of the month of November, of
the year, 2023)

This is an Appeal filed against Order dated

05.06.2023 in Rent Case no.44/2014/D passed by the Ld.

Civil Judge Junior Division, Panaji whereby the application

at exhibit D-4(a) dated 08.05.2015 for deposit of rent, filed

by the respondents was dismissed and the rent eviction

proceedings were directed to be stopped in terms of Section

32(4) of the Rent Act and the respondents were directed to

vacate the suit premises and handover the possession

within 30 days from the date of the Order.

2. The appellants herein are the respondents and the

respondents herein are the applicants in the rent case

before the Trial Court. They shall be referred in this

judgment as per their status before the trial Court.

Rent Appeal No.11/2023 Page 3 of 15

3. The proceedings before the Trial Court were initiated

by the applicants for eviction of the respondents from the

suit premises. Pending the rent case, the respondents filed

the application at exhibit 4(a) for deposit of rent from the

month of September 2010 till March 2015 and future rent.

4. The Ld. Trial Court while disposing the application

for deposit of rent filed by the respondents, passed the

impugned Order stopping the proceedings in terms of

section 32(4) of the Rent Act.

5. Aggrieved by the said Order the present Appeal is

filed on the grounds mentioned in the Appeal memo.

6. At the stage of arguments, oral arguments were heard

from Ld. Advocate Shri. N. Kamat for the Appellants and

Ld. Advocate L. Halornekar for the respondents.

7. I have considered the arguments and the documents

produced on record and the point that arise for my

determination and findings thereon are as under:

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 Sr. Points for determination Findings
No.
1. Whether the Ld. Trial Court
has committed error in passing
the impugned Order ? In the affirmative

REASONS
Point no.1:

8. Ld. Advocate Shri. N. Kamat argued that the

respondents filed application for deposit of rent dated

08.05.2015. The records reveal that pending the

application the matter has proceeded for inquiry. However,

it was informed that the application for deposit of rent was

pending. The Trial Court while deciding the said

application exercised powers under section 32(4) and

stopped the eviction proceedings with direction to the

respondents to vacate the premises. He argued that there

was no application filed by the Landlord under section

32(4) and the Landlord never raised the issue of non-

payment of rent. The respondent was not put to notice

before exercising the powers under section 32(4).

Rent Appeal No.11/2023 Page 5 of 15

9. He stated that a show cause notice is required to be

issued to the respondent before such powers are exercised.

By passing such Order the Ld. Trial Court has not only

violated the scheme of the act which is a beneficial

legislation but also violated the principles of natural justice.

He stated that before exercising such powers the Trial

Court was required to be satisfied that the conduct of the

respondents was contumacious, cantankerous and that the

default was willful. No opportunity was given to the

respondents to show cause and therefore the Appeal be

allowed. He placed reliance on the decision in the case of

Vassant Tukaram Parab v. Aurolina Gomes

[MANU/Mh/0153/2013].

10. Per Contra Ld. Advocate Shri. L. Halornekar argued

that the Order was passed as the respondents were not

depositing the rent and for continuous default of rent.

11. Section 32(4) of the Rent Control Act reads thus-

“32. Payment or deposit of rent during

pendency of proceedings for eviction.—

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 (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

Rent Appeal No.11/2023 Page 7 of 15

 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,
subjected to such conditions as may be prescribed,
be withdrawn by the landlord on application made
by him in that behalf”.

12. Thus the plain reading of the above provision clearly

shows that the tenant has to be given opportunity to give

sufficient reasons for the default.

13. Further in the case of Vassant Tukaram Parab

(supra) the Hon’ble High Court has held that in case of

default of deposit of rent the respondent is always entitled

to file application under section 32(4) of the Rent Control

Act and the tenant is entitled for show cause notice on that

ground.

14. In the case of Mariano Silveira v. Antonio

Silveira [1995(1) BCR 487] the Hon’ble Bombay High

Court has held that the discretionary power under section

Rent Appeal No.11/2023 Page 8 of 15

32(4) is exercisable only in relation to cantankerous and

contumacious defaulters and/or in case of congenital and

compulsive litigant who inspite of given opportunity to

behave is resisting the payment of rent due only to harass

the Landlord.

15. In the present matter it is an admitted fact that no

application under section 32(4) was filed by the Landlord

and no opportunity was given to the tenant to show cause

as per the mandate of the provision of section 32(4).

16. Therefore, before exercising the powers under section

32(4), the respondent is required to be given an

opportunity to explain the default and the power can be

exercised only if there is willful default and the conduct of

the tenant has been contumacious, cantankerous etc.

17. The Ld. Trial Court in the impugned Judgment has

relied on the decision of the Hon’ble Bombay High Court in

the case of Roque Antonio Judas Tadeu Caetano

Ribeiro v. Angelo Cassiano Neves e Souza [1989 (2)

G.L.T 313] where according to the Trial Court it was

Rent Appeal No.11/2023 Page 9 of 15

observed that the word “shall” is used in sub section 4 in

the context of the tenant right to show cause to the

contrary, must be read as “may”.

18. This view of the learned trial court is completely

perverse as in the said judgment the Hon’ble High Court

has no where held as above. The relevant part of the

Judgment reads thus-

“Section 32(4) while directing that the Controller or

the appellant or revisional authority shall stop all
further proceedings and make an order directing the
tenant to put the Landlord in possession of the
building, if the tenant fails to pay or deposit the rent
as mentioned in Section 32, further lays down that
such an order shall be made “unless the tenant
shows sufficient cause to the contrary”. That means
that the tenant is entitled to satisfy the Court that
circumstances exist in view of which the Court ought
not to make an order under Sub-section(4) of Section
34 against him. If every default, however
unintentional, whether willful or due to
circumstances beyond the control of the tenant were
to be a ground to make an order against him, then
the provision giving the tenant an opportunity to
show cause would become superfluous. Though the
Rent Appeal No.11/2023 Page 10 of 15
 word “shall” is used in Sub-section (4), in the context
of the tenant’s right to show cause to the contrary, it
must be read as “may” and as vesting discretion in
the Rent Controller, the appellant and revisional
authority, as the case may be, to make an order
stopping all further proceedings and directing the
tenant to put the landlord in possession of the
building only after taking all the facts and
circumstances into consideration. It is not
mandatory for the Rent Controller to put the
landlord in possession under Section 32(4) no sooner
than a default is committed by a tenant”.

19. Therefore the Hon’ble High has held that the power

of the rent Controller of stopping the proceedings is

discretionary and not mandatory. It is nowhere held that

the tenant’s right to show sufficient cause is not necessary

under law.

20. Further, in the above decision the Hon’ble Bombay

High Court has also held that it is not mandatory for the

Rent Controller to put the Landlord in possession under

section 32(4) no sooner than a default is committed by a

tenant. Some of the factors which would be relevant for

Rent Appeal No.11/2023 Page 11 of 15

exercising the power under section 32(4), would be

whether he default is for a short period or for long period;

whether the default is willful or unintentional; whether the

default is stray or persistent; whether payment was made at

the earliest opportunity or after cantankerous contest;

whether the default or bona fide or to harass the landlord.

21. In the case of Joao Pinto v. Oswald Velho

[1990(1) GLT 116] the Hon’ble High Court has held that

section 32 has been enacted to protect the interest of the

Landlord to secure rents from cantankerous tenants who

fail to pay or deposit rent before the Controller or the

Appellant or Revisional Authorities so that the Landlords

are not driven to file different proceedings for recovery of

rent in another forum.

22. As per section 32 the tenant is entitled to make an

application for deposit of rent pending rent proceedings

and as per sub section 4 of section 32 only if the tenant fails

to pay or deposit the rent, unless the tenant shows

sufficient cause to the contrary the Controller or the

Rent Appeal No.11/2023 Page 12 of 15

Appellant or the Revisional Authority is entitled to stop the

proceedings and direct the eviction of the tenant.

23. Though, the above decisions were relied by the Ld.

Trial Court, no opportunity was given to the respondent to

explain the delay or the default in payment of rent. The

Ld. Trial Court while deciding the application for deposit of

rent at exhibit 4(a) has held that the respondent is

constantly irregular and also considered the other

applications filed by him at exhibit 4 and exhibit 13.

24. In the present matter, the Landlord never filed

application under section 32(4). Before, exercising powers

under section 32(4), while deciding application under

section 32(1), the Ld. Trial Court did not issue any show

cause notice or opportunity was given to the respondent to

explain the delay in depositing the rent. Such, opportunity

in my view was necessary in order to come to a conclusion

that the conduct of the tenant is contumacious or

cantankerous and the default is willful.

Rent Appeal No.11/2023 Page 13 of 15

25. None of the decisions relied by the Ld. Trial court lay

done the proposition the power under section 32(4) can be

exercised without giving the tenant opportunity to show

sufficient cause. As rightly argued by Advocate N. Kamat

the failure on the part of the Ld. Trial Court to give

opportunity to the tenant to explain the delay has lead to

violation of principles of natural justice as the tenant was

not put to notice before the power of section 32(4) was

exercised against him.

26. On this ground itself, I am of the view that the

impugned Order suffers from great error and cannot be

sustained and the matter has to be remanded back to fresh

decision of the application at Exhibit 4(a) which was

dismissed mainly by applying the power under section

32(4). Hence, point for determination is answered in

affirmative.

27. In view of above, I pass following :

ORDER

The Appeal is allowed.

Rent Appeal No.11/2023 Page 14 of 15

 The Order dated 05.06.2023 passed by Civil Judge

Junior Division, Panaji in Rent Case no.44/2014/D is

quashed and set aside.

Trial Court is directed to hear the application at

exhibit 4(a) afresh. Records and Proceedings of rent case

to be forwarded to the Trial Court.

Parties to appear before the Trial Court on

30.11.2023 at 2.30 p.m

Proceedings closed.

Pronounced in the open court.

(Ms. Saee A. Prabhudessai)

Ad-hoc District Judge-2,
(FTC-2), Panaji
Panaji.
Dated:03.11.2023
*ys

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