1987 Supreme(Bom) 57

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
M.L. Pendse G.D. Kamat, JJ.
Maria Madeira e Fernandes (Smt.).... Appellant.
Versus
Vishnu Mahadeo Kanekar.... Respondent.
Letters Patent Appeal No. 14 of 1984, decided on 5-2-1987.
Advocates appeared :
J. Dias Sr.C. with Smt. S. Albuquerque, for appellant.
F. Rebello, for respondent.

Headnote:Sections 22 (2) (a) and 32 (4)- The word Contest occurring in Section 32 -Construction of-Scope of Section 32-Sectlon envisaged to protect Interest of landlord as against object of Rent Act to afford protected to tenant- With that view amendment in Section 22 as contained in Section 22(3) and Section 22(4) to remove hardships of tenants in proceedings under Section 22(2)(a).

       It is for the tenant to satisfy by showing cause against the application filed against him and showing cause can only mean filing the written statement or appropriate defence. All that Section 32 mentions is that no tenant against whom proceeding for eviction bas 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 unless be has paid. The word contest here cannot be construed narrowly to hold merely filing a written statement or defences. The word contest will have to be construed in a broad sense to mean every stage of the proceedings till its culmination. For instances the word contest would embrace in it filing of the written statement, cross-examination of the landlord and his witnesses, leading defence evidence and arguments On merits before the final order is made by the Controller. In our view if a restricted meaning in given to the word contest to mean only filing of the written statement, it can bring about unforeseen difficulties in the way of the landlord and also undesirable results.

       The section is envisaged by the legislature to protect the interests of the landlord to secure the rents from cantankerous tenants as that the landlord is not driven to file another proceeding for recovery of rents in another forum.

       For instance in an eviction proceedings a tenant with a view to contest makes an application within 30 days of the date of service of summons on him and deposits the arrears and at some stage files his written statement and once having done that be thereafter refuses to payor deposit the recurring tents due. Can he be permitted to say that Section 32(4) is not applicable as he has already filed the written statement land thereby permitted to contest the proceedings? Obviously the answer is no having regard to the language and scheme of Section 32. Therefore, the word contest will have to be given its due meaning to include all the stages of the proceedings required to be taken by the contesting tenant till the proceedings are finally concluded. What, therefore, applies to the proceedings before the Controller would also apply before the appellate and also before the revisional authority and no tenant can be made to get away without depositing the arrears or recurring rents. In the view of the matter to the Courts to run away from it by taking a stricter view of the matter. Judges ought to be more concerned with the context, colour and content of the statutes. The object of the Rent Act is to control eviction and thereby afford protection to the tenant. Section 22 was amended in 1976 to remove hardship that came in the way of the tenants. The amendment as contained in Sections 22(3) and 22(4) are designed to afford more and more chances to the tenant to stop his eviction. Viewed thus, the expression Reasonable cause appearing in Section 22(4) must be construed having regard to the object of the Act. While exercising discretion the Controller has to find out whether the tenant has defaulted for the first time or is it a persistent feature, whether it is bona fide or contumacious; whether it is done to harrass the landlord or otherwise in short, what has to be found is whether on the facts and circumstances of the case there is reasonable cause for non-payment.

       Sections 22 (3) and (4)- In consonance with object of Rent Act, amendment made in Section 22 as contained in sub-sections (3) & (4) to remove hardship of tenants that came in his way in eviction proceedings against him - Expression reasonable cause appearing in Section 22 (4)-Construction of.

       Section 22 (4) enjoins upon the tenant to show reasonable cause and if controller is satisfied, the Controller can require the tenant to pay to the landlord or deposit in his Court all the amounts due up to date and reject the application for eviction of the tenant. It is needless to mention that welfare statutes must of necessity receive broad interpretation when legislation is designed to give relief, it is not open to the Courts to run away from it by taking a stricter view of the matter. Judges ought to be more concerned with the context, colour and content of the statutes. The object of the Rent Act is to control eviction and thereby afford protection to the tenant. Section 22 was amended in 1976 to remove hardship that came in the way of the tenants. The amendment as contained in Sections 22(3) and 22 (4) are designed to afford more and more chances to the tenant to stop his eviction. Viewed thus, the expression Reasonable Cause appearing in Section 22 (4) must be construed having regard to the object of the Act. While exercising discretion the Controller has to find out whether the tenant has defaulted for the first time or is it a persistent feature, whether it is bona fide or contumacious ; whether it is done to harass the landlord or otherwise in short, what has to be found is whether on the facts and circumstances of the case there is reasonable cause for non-payment.

       It is true that the application dated 10th July, 1980 lacks specific prayer as required under Section 22 (4) but from the allegations made therein it is required to be found out whether there was reasonable cause on his part. In our view, therefore, taking all the facts and circumstances of the case, that application of the respondent-tenant could be treated as an application under Section 22 (4). Court therefore, directs the Rent Controller, to decide this application and consider the facts disclosed and if necessary, record evidence and decide whether there was reasonable cause on the part of the tenant not to pay the rents to the appellant-landlady. If the Controller accepts the application of the respondent tenant then obviously the appellant-landlady cannot succeed on the ground under Section 22 (2) (a), in which case the Controller may proceed to decide the appellant landladys application for eviction on the ground of damage to the premises and nuisance.

       Sections 22 (3), (4) and 32-Section 32 to be invoked by tenant in case of eviction proceedings on any of grounds under Section 23 or Section 30-Beneficient facility provided to tenant under Section 22 (3) and (4) only available as against ground spoken to under Section 22 (2) (a)-Two provisions of viz., subsections (3) and 4 of Section 22 by their nature are entirely different and operate 00 two different places.

       Sub-section (4) of Section 22 it must be held that this sub-section is entirely a distinct and separate provision in favour of the tenant to come before the Controller at any time by an application saying that his default to pay and tender or deposit the rent was not without reasonable cause and that be is prepared to pay and tender the rents due on/or before such date as the Controller may fix and if such application is accepted by the Controller the proceedings for his eviction come to an end. Whereas in subo section (3) of Section 22 a limit of 30 days from the date of the receipt of the summons bas been prescribed for a tenant to payor deposit the arrears of rents together with the cost of the application, there is no such limit prescribed in subsection (4) of Section 22. The common feature of sub-section (3) and subsection (4) of Section 22 is the acceptance of the position of being in arrears of rent but by their nature these two provisions are entirely different and operate on two different planes. Irrespective of whether the tenant is in default or not under sub-section (3) he merely indicates his willingness to deposit the rent and agrees to pay the cost and gets out of the eviction and the proceedings are terminated there and then only. But under sub-section (4) the tenant shows cause as to why his default should be condoned as it is for the Controller in his judicial discretion to accept the cause shown by such tenant and reject the application of the landlord and the tenant is not even required to plead that he is paying the cost of the application There is no time limit nor limit on number of application to be made sub-section (4), therefore, is entirely independent and again distinct from sub-section (3) of Section 22. We accord with the view taken by a Bench of this Court in the decision of Shaikh Ibrahim Shaikh Mohamed v. Joao Andrade-e-Souza, in Letters Patent Appeal No. 52 of 1983 decided on 5th December 1984. In this case the tenant had made an application for deposit of arrears of rent and recurring rents Later on applied for termination of the proceedings but, however the application failed to mention that he was agreeable to pay the cost and secondly that application was filed beyond 30 days from the date of service of the summons of the proceedings on him. The authorities did not grant relief to the tenant holding that it could not be held to be an application under sub-section (3) of Section 22. The petitioner was ordered to be evicted on merits. The orders of the authorities were challenged in a writ petition which was dismissed in limine by a Single Judge. Though his Letters Patent Appeal was dismissed on facts on the case, the Letters Patent Bench held on interpretation of Section 22 that firstly the purpose of deposit of arrears of rent under Section 32 and under Section 22 (3) are quite distinct. Secondly it was held that sub-section (4) of Section 22 and sub section (3) of that section operate on different planes. It was so held because sub-section (4) of Section 22 applies at any stage of the eviction proceedings notwithstanding sub-section (3) of Section 22 or for that matter Section 32 nor it sets out any time limit for making an application nor it prohibits filing of any number of applications. The argument that subsection (4) of Section 22 would apply even to a defaulter in applying under sob-section (3) was rejected and it was clearly held that they are two independent sections. It is not possible to depart from his position.

       What therefore emerges is that Section 32 is independent of Section 22. The same is to be invoked by the tenant in case he wants to contest the proceedings of eviction filed against him be that on any of the grounds under Section 23 or under Section 23 or 30. The beneficent facility provided to the tenant under sub-section (3) of Section 22 is only available as against the ground spoken to under Section 22 (2) (a) when invoked by the landlord and similar is the case to avail of the provision under Section 22 (4) but in two different circumstances. However in the former case the question of admitting fault or showing cause for default does not arise and in the latter case sufficient cause for default is required to be shown and there is no time limit prescribed. In any case, therefore. Section 32 has no application at all. It, therefore, further transpires that Section 22 is by itself a self contained Code and affords added facility of protection against eviction sought on the ground of non-payment of rents and that too de hors Section 32. Section 22 therefore operates in the field created by itself and there is therefore fully agreement with the view expressed by the Division Bench in Letters Patent Appeal No. 52 of 1983.