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Judgment
J.A. Patil, J.—In this Letters Patent Appeal, the appellant has impugned the Order dated 23.6.95 passed by the learned Single Judge of this High Court in Writ Petition No. 140/95, whereby he summarily dismissed the said Petition filed by the present appellant challenging the Order dated 31.1.95 passed by the Administrative Tribunal. The appeal involves an interesting but important question of law and it is to the effect as to whether in an eviction proceeding under the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 (hereinafter referred to as the Rent Act for short), failure on the part of the applicant/landlord to bring on record the legal representatives of the deceased tenant after the recording of evidence is concluded, renders the order/decree of eviction a nullity. This question has arisen out of the following facts:
Deceased Remedio D''Souza was the landlord of the suit premises. Respondents Nos. 1(a) and 1(b) are his legal heirs. One Mrs. Helena Rodrigues was a tenant in the suit premises. She had however, sub-let the same to the present appellant who, in turn, sub-let the same to deceased respondent No. 2 Babuso Mulgaonkar. Deceased Remedio D''Souza filed an application before the Addl. Rent Controller u/s 22(2)(b)(i) of the Rent Act for evicting the tenant Mrs. Helena Rodrigues and the two subtenants namely the present appellant and deceased respondent No. 2, alleging that the sub-letting was without his written consent. The proceeding was contested by the tenant and the sub-tenants who filed a joint written statement and also led some oral evidence. During the pendency of that proceeding, death occurred to the tenant Mrs. Helena Rodrigues on 14.8.84. However, recording of evidence was already completed on 4.7.84. The proceeding was pending for quite sometime even thereafter but the legal representatives of deceased Helena Rodrigues were not brought on record by the landlord. An application on behalf of the two sub-tenants was moved before the Addl. Rent Controller contending that the whole proceeding had abated and praying for passing necessary order to that effect. The Addl. Rent Controller however rejected that application and proceeded to hear arguments on both the sides, on the main application. The arguments were heard on 9.10.86 and 14.10.86. Thereafter by Order dated 17.12.86, the Addl. Rent Controller allowed the landlord''s application and gave the following direction:
The respondents are hereby directed to hand over vacant possession of the suit premises to the applicant within a period of 90 days from the date of this order. This order is applicable also to the legal representatives of deceased respondent No. 1, if any.
Feeling aggrieved by this order, both the sub-tenants filed Eviction Appeal No. 15/87 before the Administrative Tribunal at Panaji which dismissed the same on 31.1.95 and gave the appellants (sub-tenants) 90 days time to vacate the suit premises. Before the Administrative Tribunal also the contention was raised that the proceeding had abated as the legal representatives of deceased Helena Rodrigues were not brought on record, but the Tribunal did not find favour with the said contention. Consequently the present appellant filed Writ Petition No. 140/95 in this Court. The learned Single Judge at the time of admission of Writ Petition No. 140/95 filed by the appellant observed that the two authorities below had appreciated the evidence and arrived at their conclusion on merits and in accordance with law and, as such, the said Writ Petition did not deserve to be admitted. Dealing with the contention regarding failure to bring on record the legal representatives of deceased Helena Rodrigues, the learned Judge observed:
It is not necessary to examine this controversy at this stage in view of the fact that the writ petitioner herein himself did not implead the heirs and legal representatives of Mrs. Helena Rodrigues in Eviction Appeal No. 15/87. The order of eviction passed by the two authorities below is executable against the writ petitioner who has lost the above referred proceedings on merits of the controversy on all counts....
Consequently, the learned Single Judge summarily dismissed the Writ Petition filed by the appellant.
Shri Lotlikar, the learned Advocate for the appellant, submitted before us that the order of eviction is a nullity since the legal representatives of the deceased tenant Mrs. Helena Rodrigues were not brought on record. According to him, the whole proceeding had thus become infructuous. Shri Lotlikar further submitted that under the Rent Act there cannot be any proceeding directly between the landlord and the sub-tenant. The proceeding has to be only between the landlord and tenant and, therefore, on failure of the landlord to bring the heirs of Mrs. Helena Rodrigues the proceeding for eviction became incompetent. Referring to the observations made by the learned Single Judge that the present appellant did not implead the heirs of Mrs. Helena Rodrigues in the appeal filed before the Tribunal, Shri Lotlikar submitted that there was no occasion for the appellant to do so. He pointed out that persons who were not parties before the original Court could not have been joined by the appellant for the first time before the Appellate Court. Nobody appeared on behalf of the respondents.
Section 58 of the Rent Act empowers the Administrator to make rules to carry out the purposes of the Act. It further states that the Rules, inter alia, provide for the procedure to be followed and the powers that may be exercised by the Controller, Rent Tribunal, Appellate Board and Administrative Tribunal in performance of their functions under the Act and also the application for bringing on record legal representatives of deceased persons who were parties to the proceeding. Accordingly, Rules called the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules, 1969 (for short Rules, 1969) have been framed. Rule 9 provides for procedure to be followed by the Controller, the Rent Tribunal, the Appellate Board and the Administrative Tribunal in all enquiries and proceedings under the Act. Sub-rule (1) in substance enumerates the particulars which are required to be stated in an application under the Rent Act. Sub-rules (2), (3) and (4) are relevant for our purpose and they read as under:
(2). In all enquiries and proceedings commenced on the presentation of an application under Sub-rule (1) or under any other provisions of the Act or the rules, the Controller or the Rent Tribunal shall exercise the same powers as the Mamlatdar under the Goa, Daman and Diu Mamlatdar''s Court Act, 1966, and shall follow the provisions of the said Act as if the Controller or the Rent Tribunal were a Mamlatdar''s Court under the said Act and the application presented was a plaint u/s 7 of the said Act.
(3). The Appellate Board in deciding appeals under the provisions of the Act shall have the same powers and shall follow the same procedure as is provided for in deciding appeals under the Civil Procedure Code, 1908.
(4). The Administrative Tribunal in deciding an appeal or a revision application under the provisions of the Act, shall have the same powers and shall follow the procedure provided for in this behalf in the Goa, Daman and Diu Administrative Tribunal Act, 1965, as if the appeal of the revision application was filed under the said Act.
It will thus be seen that so far as the proceedings before the Rent Controller are concerned, their procedure is governed by the Mamlatdar''s Court Act, 1966. It therefore follows that the provisions of the CPC will not apply to the proceedings under the Rent Act pending before the Controller. This is however not so with regard to the appeals which are filed before the Appellate Board. The procedure for deciding the appeals will be governed by the Civil Procedure Code. The Administrative Tribunal in deciding an appeal or revision application under the Rent Act is however required to follow the procedure prescribed in the Goa, Daman and Diu Administrative Tribunal Act, 1965.
Section 18 of the Mamlatdar''s Court Act inter alia, enumerates the issues which the Mamlatdar shall decide while dealing with different types of suits or applications which he is empowered to decide. Sub-Section (3) of Section 18 is relevant and it reads as under:
(3). The Mamlatdar shall make or cause to be made a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds. The memorandum shall be signed by the Mamlatdar, read over or explained to the witness and his signature obtained thereon.
Sub-Section (4) inter alia states that where the Mamlatdar''s finding upon the issues for which he shall briefly record his reasons, is in favour of the plaintiff, then he shall make such an order. It will thus be seen that the procedure laid down by Section 18 of the Mamlatdar''s Court Act does not contemplate a stage of argument. It appears that after the substance of evidence of witnesses is recorded, the Mamlatdar has to record his findings on the relevant issues. In the instant case death occurred to the tenant on 8.8.1984 after recording of evidence was over on 4.7.84. Thus the inquiry was concluded before the death of the tenant.
Section 52(1) of the Rent Act states that any application made, appeal preferred or proceeding taken, under the Act by or against any person may, in the event of his death, be continued by or against his legal representatives. Rule 12 of the Rules, 1969 lays down the procedure for bringing on record legal representatives of deceased persons. Sub-rule (3) of Rule 12 in substance states that where one or more respondents dies then an application to bring the legal representatives of the deceased respondent has to be made within 60 days from the date of the death of the deceased respondent and where no such application is made within the prescribed time, the proceeding shall abate as against the deceased respondent. In the instant case no such application was ever made by the applicant landlord. Therefore, in the normal course, the proceeding before the Additional Rent Controller as against the deceased tenant Mrs. Helena Rodrigues would have abated. However, in view of the Sub-rule (5), the proceeding is saved from being abated. Sub-rule (5) of Rule 12 reads as under:
(5). Notwithstanding anything contained in the foregoing sub-rules there shall be no abatement by reason of death of either party between the conclusion of the hearing and the pronouncement of the judgment, but judgment in such case be pronounced notwithstanding the death and shall give the same force and effect as if it had been pronounced before the death took place.
It may be recalled that Mrs. Helena Rodrigues died on 8.8.84 whereas the hearing was concluded on 4.7.84, that is before the conclusion of hearing, Though the arguments were heard in October, 1986, it cannot be said that hearing was concluded on 14.10.86. As pointed out above the Mamlatdar''s Court Act does not contemplate a stage of argument, and hearing concludes with the recording of evidence only. Although the Additional Rent Controller has heard the arguments after the death of the tenant, they cannot form part of "hearing" under the Rules, 1969 and an item of procedure contemplated by Section 18 of the Mamlatdar''s Court Act. Hearing of arguments will have thus to be regarded as an additional facility or opportunity to the parties, not warranted or contemplated by the said Act. Consequently it follows that the respondent tenant having died between the conclusion of the hearing and the pronouncement, of the judgment, there was no abatement of the proceeding as contended by Shri Lotlikar.
The Learned Single Judge dismissed the Writ Petition not on this ground but on the ground that the present appellant himself did not implead the heirs and legal representatives of the tenant Mrs. Helena Rodrigues in Eviction Appeal No. 15/87.
Shri Lotlikar submitted before us that there was no occasion for the appellant to implead the heirs of deceased Mrs. Helena Rodrigues in the Eviction Appeal since they were not brought on record in the proceedings before the Rent Controller. He pointed out that persons who were not parties before the original Court could not have been joined by the appellant for the first time before the Appellate Court. We do not find any substance in it. Normally, it is for the plaintiff to bring on record the heirs of the deceased defendant. In the instant case, the applicant/landlord failed to bring'' the legal heirs of the deceased defendant tenant on record during the pendency of the proceeding before the Additional Rent Controller. But since appeal before the Administrative Tribunal was filed by the present appellant, he could have moved the Tribunal for permitting him to bring on record the legal heirs of the tenant Mrs. Helena Rodrigues. At any rate, the appeal under the Rent Control Act without impleading the tenant or his/her legal heirs would not be competent.
In the result, we see no merit in this Letters Patent Appeal and hence we dismiss the same with no order as to costs.