JUDGMENT
G.F. Couto, J.
1. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner challenges the order dated 29th December, 1978, passed by the third respondent, Deputy Collector, and Rent Controller, Margao, and the judgment dated 16th May, 1986, passed in appeal against the aforesaid Order by the respondent No. 2, the Administrative Tribunal of Goa, Daman and Diu.
2. The first respondents have filed eviction proceedings under section 22(2)(c) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control, Act, 1968, against the petitioner herein and one Zacaria Suleman, their case had been that they are owners in possession of a building known as “Gosalia Building” situated at Vasco da Gama. The petitioner was occupying the godown No. 1 and the said Suleman, the godown No. 8, both situated on the ground floor of the said building, as tenants, on the monthly rent of Rs. 150/- each. It was further the case of the first respondents that Suleman handed over possession of the godown No. 8 to the petitioner in May, 1975 without permission and consent of the first respondents, but the rent of the said godown had been paid since then by the petitioner. The godowns Nos. 1 and 8 are adjoining each other having a common wall. This petitioner broke the wall and fixed a door so as to make both of them intercommunicable without obtaining the consent of the first respondents therefore. On this ground which, according to the first respondents, had caused damage to the building, the eviction of both Suleman and the petitioner was sought. The petitioner and Suleman did not file any written statement and since they remained absent, proceedings were ordered to proceed ex parte against them. On 4th April, 1977, information was brought to the Rent Controller about the death of Suleman and subsequently, the order to proceed ex parte against the petitioner was set aside, but he did not file any written statement. On 11th September, 1978, the first respondents moved an application under section 32(4) of the Rent Control Act on the ground that the petitioner has failed to pay or to deposit the rents after the filing of the eviction proceedings with effect from July 1976. The eviction proceedings had been filed in Court on 6th May, 1976 and the rents from December 1975 to June, 1976 in respect of both the godowns had been deposited in Court by the petitioner on 29th June, 1976. After the filing of the said application under section 32(4) of the Act, a notice was served on the petitioner to show cause against it. Accordingly, the petitioner filed his reply on 24th November, 1978 and took the stand that Suleman had died on 3rd February, 1977 and his heirs had not been brought on record, with the result that the whole proceedings had abated. It was also contended by the petitioner that no order under section 32(4) could be passed since the requirements of section 22(2)(c) of the Act had not been complied with. The petitioner did not show any cause to explain as to why he had not deposited the rents from July, 1976 onwards, at least in respect of the godown No. 1, which had been leased out to him. The first respondents replied to the question of abatement stating that since the proceedings were going ex parte against Suleman, the question of bringing on record the legal representatives of the said Suleman was not arising.
3. The respondent No. 3 in his order dated 29th December, 1978, observed that the challan produced before him was showing that the rents for the months of December, 1975 to June, 1976 had been paid by the petitioner in respect of both the godowns and that no case has been made out to justify why rents fallen due after July, 1976 had not been deposited. In the light of these observations, the Rent Controller ordered the proceedings, to be stopped and directed both the opponents in the proceeding i.e. the petitioner and Suleman, to put the first respondent in possession of the suit godowns within 30 days. Being aggrieved by this order of the Rent Controller, the petitioner moved the second respondent in appeal. The case of the petitioner before the second respondent was that he had paid the rent in respect of the godown No. 1 only and that he has nothing to do in respect of godown No. 8 which was in occupation of the legal heirs of Suleman. The petitioner has taken further the stand that he had paid rents upto June, 1976 as regards the godown No. 8 on behalf of Suleman as he was holding powers of attorney. He ceased to make such payments since on the death of the said Suleman, the powers of attorney had ceased to operate. He also advanced the case that on account of the death of Suleman, the proceedings had abated and in any event, eviction under section 32 of the Act could not have been ordered in view of the amendment to section 22 whereby the benefit of default has been given to the tenant. The Tribunal held that the question of abatement was not arising since the facts of the case clearly were indicating that the petitioner had been accepted by the first respondents as tenant of the godown No. 8 and that Suleman was merely a proforma party. Besides, Suleman has not put up an appearance in the case and the proceedings were going ex parte against him. The Tribunal, therefore, held that since no cause whatsoever had been shown by the petitioner as to why the rent of both godowns had not been deposited by him after July, 1976 till the proceedings were stopped by the Rent Controller, the third respondent was fully justified in ordering his eviction from both godowns under section 32(4) of the Act.
4. Mr. Rebello, the learned Counsel appearing for the petitioner, contends that both the Rent Controller and the Tribunal had erred in passing the impugned orders, for they foiled to appreciate that the proceedings as instituted against two separate tenants were not maintainable. Mr. Rebello urged that in the scheme of the Act, separate proceedings were required to obtain the eviction of the petitioner and of the said Suleman, specifically when it is the case of the first respondents themselves that they were separate tenants in respect of the godowns No. 1 and 8 respectively, paying each of them, a rent of Rs. 150/- per month. He further submitted that the case of the first respondents was that the petitioner has broken the wall and by way of door, connected both the godowns. If this is the case, the learned Counsel submitted that it was not open to the first respondents to file a single proceedings for eviction against two different tenants. Secondly, he contended, in any event, on the death of Suleman, his legal representatives had not been brought on record and therefore, even if the proceedings as instituted were maintainable, the fact remains that the decree passed was not possible to be executed against the petitioner alone, for the proceedings had by virtue of the provision of Rule 12 of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control, Rules 1969, abated in respect of Suleman. Then, he further contended that in the scheme of the Code, the relationship is always between a landlord and a tenant and, as such, the provision of section 32(4) of the Act, could not have come into play against two tenants at the same time. He finally submitted that in any case, since the case of the first respondents themselves is that the petitioner was the tenant in respect of godown No. 1 and Suleman the tenant as regard the godown No. 8, the order of the Administrative Tribunal ordering the eviction of the petitioner from the godown No. 8 is without jurisdiction. In support of this last contention, reliance was placed on the decision of this Court in Tejoomal Lakhmichand & others v. M.J. Talegaonkar, . He also submitted that at any rate, the order of the Rent Controller was both against the petitioner and Suleman and therefore, the Tribunal was not justified in the absence of any appeal or review, to change the said order making it only against the petitioner.
5. As against this, Mr. Dias, the learned Counsel appearing for the first respondents, contended that the joining of the cases against the petitioner and Suleman was entirely permissible in view of the provision of Order 1, Rule 3(b), C.P.C. which provides that all persons may be joined in one suit as defendants where, if separate suits were brought against such persons, any common question of law or fact would arise. Mr. Dias submitted that in the petition for eviction, the first respondents had specifically averred that the petitioner was occupying the godown No. 1 and Suleman had handed over possession of the godown No. 8 to the petitioner somewhere in the month of May, 1975 and that thereafter, the rent has been paid to the first respondents by the petitioner. He further submitted that there is no provision in the Rent Control Act requiring a written agreement for the constitution of a sub-tenancy. In fact, section 22(2)(b)(i) gives a ground for eviction if the tenant without the written consent of the landlord transfers his right under the lease or sub-lets the entire building or part thereof. The first respondents chose not to act under the said ground and filed the eviction proceedings on the ground of damages caused to the building. This being the case, it is obvious that the arguments advanced by the learned Counsel for the petitioners that the proceedings had abated on account of the death of Suleman, are not well-founded. Mr. Dias, further contended that if at all there was a misjoinder of the parties or misjoinder of the causes of action, since no objections to it had been raised at the earliest opportunity, the same were to be held as waived by virtue of the provisions of Order 1, Rule 13 and Order 11, Rule 7 C.P.C. The learned Counsel then submitted that the petitioner has not filed any written statement and has not therefore, denied that Suleman had without the permission of the first respondents handed over possession of the godown No. 8 to him and that thereafter, he had been paying the rent of the said godown to the first respondents. The petitioner has also not explained why after having deposited the rents from December, 1975 to June, 1976, for both the godowns, had failed to deposit the rents upto the death of Suleman, which occurred on 3rd February, 1977, if at all he had deposited the rents in respect of the godown No. 8 as a power of attorney holder for the said Suleman. Mr. Dias contended that in these circumstances, where it clearly emerges from the pleadings themselves, that although initially the leases were separate, the first respondents had accepted the petitioner as a tenant also of the godown No. 8, both the Courts below were justified in holding the view that the pleadings had not abated on the failure in bringing on record the legal representatives of Suleman. The learned Counsel finally observed that it is not denied that the petitioner has not shown any cause as to why the rents for both the godowns had not been deposited from July, 1976 onwards.
6. In para 2 of the application for eviction, the first respondents alleged that the petitioner is occupying the godown No. 1 and Suleman was occupying the godown No. 8 as tenants and on the monthly rent of Rs. 150/- each. He further averred that Suleman handed over possession of the said godown to the petitioner in the month of May, 1975 without the consent of the first respondents, but inspite of that, the rents in respect of the said godown were paid by the petitioner. After that, in para 3 the first respondents averred that the petitioner has broken the common wall and opened a door connecting the godowns Nos. 1 and 8 and thereby has caused damage to the building. It was on this ground that the proceedings were filed against the petitioner and Suleman. Strictly speaking, as rightly contended by Mr. Rebello, two separate eviction proceedings would be justified in the facts of the case, but this does not, at any rate, mean that the proceedings as instituted were not maintainable. Order I, Rule 3 C.P.C. indeed provides that all persons may be joined in one suit as defendants, where inter alia. If separate suits were brought against such persons any common question of law or fact would arise. From the facts averred in the petition for eviction, it is evident that the same question of fact and of law would arise in separate eviction proceedings if filed against the petitioner and Suleman. This being so, it was permissible for the first respondents to file a single proceeding for eviction of the petitioner and Suleman. It may be also pointed out that the petitioner chose not to file any written statement and to object to the alleged misjoinder of defendants. Therefore, by virtue of Order I, Rule 13, it is to be deemed that any such objection was waived. Similarly, if there is a misjoinder of causes of action, the objection is deemed to have been waived as provided in Order II, Rule 7, C.P.C.
7. Coming now to the next submission of Mr. Rebello, it is true that the first respondents had come out with a case that the petitioner and Suleman were separately tenants of godowns Nos. 1 and 8, respectively. But, it is also true that they further advanced a case that Suleman had handed over possession of the godown No. 8 to the petitioner and though this was done without obtaining their prior permission, they had been accepting the payment of rent for the said godown made by the petitioner. This was not at all denied by the petitioner and, on the contrary, gets corroboration by his conduct itself, for he deposited the rents of December, 1975 to June, 1976 in respect of both the godowns in Court without specifying in what capacity the rents, specially those of godowns No. 8, were being deposited. This much was necessary if, as he later alleged, he has acted on behalf of Suleman as his attorney, while making the deposit of rents of godown No. 8. This omission in making such clarification taken together with his stopping to deposit the rents from July, 1976 onwards as regards both the godowns, although Suleman had died on 3rd February, 1977, conclusively establishes, as rightly pointed out by Mr. Dias, that he has not made the deposit of the rents of the godown No. 8 on behalf of Suleman as his attorney, but on his own behalf, for other wise there was no reason for his non-depositing the rents in respect of the godown No. 8 upto the date of the death of Suleman. No further evidence is required in this connection, since the above facts speak by themselves and constitute clear admissions on the part of the petitioner. They indeed clearly indicate and prove, as rightly held by the Tribunal, that the first respondents had accepted the petitioner as a tenant of the godown No. 8 as well. In the circumstances, what both the Rent Controller and the Tribunal held as regards the non-abatement of the whole proceedings on account of the failure in bringing on record the legal representatives of Suleman, appears to be correct and does not warrant the interference by this Court. I may however, say that, at the most, in view of the provision of Rule 12 of the Rent Control Rules, the abatement, if any, would have only been in respect of Suleman and never in respect of the petitioner. Thus, in any event, the alleged abatement would not help the petitioner, for he would not have locus standi to challenge the order of eviction as regards the godown No. 8.
8. As pointed out by the Tribunal, the petitioner had not explained why he stopped depositing the rents from July, 1976 to the date of the impugned order of the Rent Controller. Therefore, though an opportunity was given to him to show cause why the proceedings should not be stopped under section 32(4) of the Act, he failed to do so and, as such, the Controller was fully justified in passing the said order dated 29th December, 1978. The Tribunal was, therefore, entirely correct in affirming the order of eviction, at least in respect of the petitioner. However, Mr. Rebello contended that the Tribunal has altered the order of the Rent Controller although there was no appeal or review filed to the extent that the eviction instead of being in respect of the petitioner and Suleman was made only against the petitioner and regarding both the godowns Nos. 1 and 8. He contended, placing reliance on the judgment of this Court in Tejoomal’s case (above) that the Tribunal has acted without jurisdiction while making the said alteration and in giving a finding that the petitioner was a tenant of the godown No. 8 as well specially when this is clearly against what has been averred in the application of eviction itself. In Tejoomal’s case, this Court observed that it is well-settled that jurisdiction has to be decided upon the averments in the plaint and therefore, if any averments to a particular effect are made, the Court is not entitled on the basis of the evidence adduced by the parties, to consider the facts in the evidence which are not alleged in the pleadings for passing the decision. The view expressed in Tejoomal’s case is not at all questioned, but what is to be decided is whether the said observations are applicable to the facts and circumstances of the case. In my view, the said observations cannot be applied to the facts of the case before me, for the first respondents had alleged in the application for eviction that initially, the lease has been created separately with the petitioner and Suleman in respect of the said godowns No. 1 and 8, but later on, i.e. in May, 1975, Suleman has handed over possession of the godown No. 8 to the petitioner and although this has been done without prior permission of the first respondents, the later had accepted the rents paid by the petitioner in connection with the said godown No. 8. These being the averments made in the application for eviction, it, would appear that the findings of the Rent Controller and the Tribunal are based on the pleadings themselves and not on the evidence adduced by the parties. Therefore, and considering that in view of this factual position the Tribunal recorded a finding that the petitioner had been accepted as a tenant also in respect of godown No. 8, there is no infirmity in the decision of the Tribunal in ordering the eviction of the petitioner alone from both the godowns No. 1 and 8. In any event, even if I were to accept the submission of Mr. Rebello in this connection, the only effect thereof would be that the impugned judgment of the Tribunal is to be modified to the extent that the order of the Rent Controller directing both the petitioner and Suleman to put the first respondents in possession of the godowns Nos. 1 and 8 is to be restored. This being so, I do not think that the inference of this Court will be justified at all and that the judgment of the Administrative Tribunal should be modified.
9. The result is that this writ petition fails and is consequently, dismissed. The rule is accordingly discharged with costs.