Setting aside ex-parte eviction decree for defective service restores suit without requiring prior rent deposit under Section 32; deposit mandatory only to contest merits at trial, upholding natural justice.

JUDGMENT :

NEELA GOKHALE, J.

1. Rule made returnable forthwith. By consent of both the parties, the matter is being heard finally. Learned Counsel appearing for the Respondents waive notice.

2. By way of the present Petition, the Petitioners seek to quash and set aside the Judgment and Order dated 26^th March 2025 passed by the Appellate Court (FTC-Mapusa) in Rent Appeal No. 7/2022 and the Order dated 6^th May 2022 passed by the Trial Court at Mapusa in Civil Misc. Application No. 25/2018/F setting aside the ex-parte Judgment and Decree dated 5^th January 2018 in Rent Case No. 3/2016/F. The Petitioners further seek restoration of the ex-parte Judgment and Decree dated 5^th January 2018, passed in favour of the Petitioners in Rent Case No. 3/2016/F, along with all the consequential benefits and execution rights arising therefrom. There are other reliefs sought by the Petitioners.

3. The facts of the case in brief are as under:

3.1. The Petitioners are the landlords, and the Respondents are the legal heirs of the deceased tenant. The Petitioners filed an application against the Respondents for eviction and recovery of arrears of rent under Section 22 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, (‘Rent Control Act’), seeking eviction of the tenants on the ground that rent for 64 months had remained unpaid and the tenants were in default of the payment of the rent. The said application was numbered as Rent Act Suit No. 03/2016/F. The said suit was decreed ex-parte by Judgment and Decree dated 5^th January 2018, wherein the Respondents were directed to vacate the suit premises and hand over the possession of the suit premises to the Petitioners. They were also directed to pay arrears of rent amounting to Rs. 45,500/- to the Petitioners and further rent from the date of filing the case till the vacant possession of the suit premises was actually handed over to the Petitioners.

3.2. Pursuant to the said ex-parte Judgment and Decree dated 5^th January 2018, the Petitioners filed a Regular Execution Application bearing No. 6/2018/F. The Executing Court issued notices to the Judgment Debtor, i.e. the Respondents herein, of the Execution Application. It is alleged by the Respondents that neither the notice of the Civil Suit nor the notice of the Execution Application was received by them at the addresses furnished by the Petitioners to the Court as the addresses of the Respondents. However, they learnt of the pendency of the Execution Application when they received a notice of the said Execution Application served to him on the suit premises. It was at this point in time that the Respondents learnt that a Suit had been instituted by the Petitioners for their eviction, which had been decreed ex-parte leading to the Petitioners filing the Execution Application.

3.3. The Respondent appeared before the Executing Court and also filed an application for setting aside the ex-parte Judgement and Order dated 5^th January 2018 passed in Rent Act Suit No. 3/2016/F and also sought restoration of the said Suit for him to put forth his defense.

3.4. After hearing both sides, the Executing Court, by its Order dated 6^th May 2022, set aside the ex-parte Judgment and Decree passed by it in Rent Act Suit No. 3/2016/F and restored the Suit to its original file to be decided on merits. The Petitioners challenged this Order dated 6^th May 2022 before the Appellate Court, i.e. the District Court (FTC) at Mapusa. The Appellate Court, after hearing both sides, was pleased to dismiss the Appeal by its Judg