S.A. BOBDE, J.

Heard Shri A. R. Kantak, learned Counsel appearing for the petitioners and Shri C. A. Coutinho, learned Counsel appearing for the respondent.

2. Since a learned Single Judge, Lavande, J being unable to agree with the judgment of the Division Bench in Mrs. Damayantiben Shivaji Chauhan V/s Dr. Dinesh Parekh and others reported in All India Rent Control Journal 1988(1) 520 having regard to the view taken by the another Division Bench in Maria Madeira e Fernandes V/s Vishnu Mahadeo Kanekar, reported in AIR 1987 Bom. 240 has referred the following question.

“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 ?”

3. Section 32 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (herein after referred to as 'the Act') reads as follows:

“32. Payment or deposit of rent during pendency of proceedings for eviction.-

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, subject to such conditions as may be prescribed, be withdrawn by the landlord on application made by him in that behalf.”

4. According to Shri A. R. Kantak, learned Counsel appearing for the landlord who has sought eviction of the tenant under Section 22(2)(a),(b),(c),(d) and (f) of the Rent Act, a landlord is entitled to make an application under Section 32(h) to stop further proceedings if the tenant has failed to pay or deposit the rent as contemplated by this Section and further obtain an order directing the tenant to put the landlord in possession of the building.

5. In the present case, the Rent Controller passed an order of eviction of the tenant. The tenant preferred an appeal before the Administrative Tribunal. The landlord filed an application under Section 32(4) of the Rent Act enclosing a chart showing the default committed by the respondent. The Tribunal relied on the judgment of this Court in Mrs. Damayantiben Shivaji Chauhan referred to (supra) and dismissed the application for stopping of the proceedings and obtaining possession under Section 32(4) of the Rent Act.

6. A Division Bench of this Court in Mrs. Damayantiben Shivaji Chauhan (supra) took the view that in an appeal filed by the tenant against the decree