BIJAY KUMAR SINGH & OTHERS versus AMIT KUMAR CHAMARIYA & ANR.

[2019] 13 S.C.R. 1028

[2019] 13 S.C.R.

BIJAY KUMAR SINGH & OTHERS

AMIT KUMAR CHAMARIYA & ANR.

(Civil Appeal No. 7849 of 2019)

BOCTOBER 22, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA]

West Bengal Premises Tenancy Act, 1997:

s.7 – Scope and ambit of – Held: Section 7 provides completeCmechanism for avoiding eviction on the ground of non-payment ofarrears of rent – Provisions of sub-section (2) of s.7 are mandatory– There is an outer limit for extention of time to deposit arrears ofrent in terms of Proviso to sub-section (2) of s.7 – Deposit of admittedarrears of rent along with an application for determination ofdispute is pre-condition to avoid eviction on the ground of non-Dpayment of arrears of rent-tenant cannot take recourse to s.5 ofLimitation Act – Limitation Act, 1963 – s.5.

Dismissing the appeals, the Court

HELD: The provisions of sub section (2) of Section 7 ofEWest Bengal Premises Tenancy Act, 1997 are mandatory andrequired to be scrupulously followed by the tenant, if the tenanthas to avoid the eviction on account of non-payment of arrears ofrent under Section 6 of the Act. There is an outer limit forextension of time to deposit of arrears of rent in terms of theproviso to sub section (2) of Section 7 of the Act. TheFconsequences flowing from non-deposit of rent are contemplatedunder sub section (3) of Section 7 of the Act. Therefore, if thetenant fails to deposit admitted arrears of rent within one monthof receipt of summons or within one month of appearance withoutsummons and also fails to make an application for determinationGof the disputed amount of rate of rent and the period of arrearsand the subsequent non-payment on determining of the arrearsof rent, will entail the eviction of the tenant. Section 7 of the Actprovides for complete mechanism for avoiding eviction on theground of arrears of rent, provided that the tenant takes steps ascontemplated under sub section (2) of Section 7 of the Act andH

deposits the arrears of rent on determination of the disputedamount. The deposit of rent along with an application fordetermination of dispute is pre-condition to avoid eviction onthe ground of non-payment of arrears of rent. In view thereof,tenant will not be able to take recourse to Section 5 of theLimitation Act as it is not an application alone which is requiredto be filed by the tenant but the tenant has to deposit admittedarrears of rent as well. [Para 21][1042-E-H; 1043-A]

Nasiruddin and Ors. v. Sita Ram Agarwal (2003) 2 SCC577 : [2003] 1 SCR 634 – relied on.

B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick(1987) 2 SCC 407 : [1987] 2 SCR 559 – distinguished.

Shibu Chandra Dhar v. Pasupati Nath Auddya and GayaPrasad Kar v. Subrata Kumar Banerjee (2002) 3 SCC617 : [2002] 2 SCR 249; Arjun Khiamal MakhijaniEtc v. Jamnadas C. Tuliani & Ors. Etc. (1989) 4 SCC612 : [1989] 1 Suppl. SCR 380; Monoj Lal Seal v.Octavious Tea & Industries Ltd (2015) 8 SCC 640 :[2015] 6 SCR 791; E. Palanisamy v. Palanisamy (2003)1 SCC 123; Balwant Singh v. Anand Kumar Sharma(2003) 3 SCC 433 : [2003] 1 SCR 653; Vatan Mal v.Kailash Nath (1989) 3 SCC 79 : [1989] 2 SCR 192;Union of India v. Philip Tiago De Gama (1990) 1 SCC277 : [1989] 2 Suppl. SCR 336; Shyamcharan Sharmav. Dharamdas (1980) 2 SCC 151 : [1980] 2 SCR 334;Union of India and Others v. A. K. Pandey (2009) 10SCC 552 : [ 2009] 14 SCR 528 – referred to

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7849of 2019.

From the Judgment and Order dated 13.05.2016 of the HighCourt at Calcutta in C.O. No. 1942 of 2013.C

With

Civil Appeal No. 7850 of 2019.

Anip Sachthey, Sr. Adv., Anando Mukherjee, Ms. Anjali Chauhan,Ms. Ria Sachthey, Mrs. Sarla Chandra, Advs. for the Appellants.D

Pranab Kumar Mullick, Ms. Soma Mullick, Seba Kumar Deuria,Advs. for the Respondents.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.E

1. The challenge in the present appeals is to an order passed bythe High Court of Calcutta on 13.05.2016 in two separate eviction petitionsfiled by the respondent herein against two tenants.

2. Learned Single Judge has set aside the order dated 10.08.2011whereby an application filed by the appellant under Section 7(2) of theFWest Bengal Premises Tenancy Act, 1997[1] was allowed.

3. The brief facts leading to the present appeals are that therespondent filed an eviction petition against the appellants on the groundof non-payment of arrears of rent in respect of two shops alleging thatinitially, Sudama Singh was tenant on the monthly rent of Rs.45/- andGRs.25/- per month but now the rent payable is Rs.306/- and Rs.174/- permonth. It is the case of the respondent that Receiver was appointed inMoney Execution Case No. 23/1961 and the said Receiver wasdischarged vide order dated 10.02.2009. The respondent demandedarrears of rent but since the amount of arrears at the rate of Rs.306/-

H1 For short the “Act”

per month was not paid, the petition for eviction was filed. The appellantdid not deposit any rent but filed an application to determine the arrearsof rent asserting that they have paid monthly rent up to the month ofJune 1993 to the Receiver. However, the Receiver has not informed theappellants as to the person authorised to collect rent, therefore, theycould not pay it.

4. The learned Trial Court allowed the application, determined thearrears of rent and granted time to pay the arrears of rent so determined.The learned Single Bench set aside the order passed by the Trial Courtas it chose to follow the order passed in CO 1941 of 2013, though anotherCoordinate Bench had taken contrary view in CO 55 of 2014. LearnedSingle Judge found that in the order passed by Coordinate Bench in CO55/2014, no lis was decided and that no principle was laid down whichmay give light to the learned Trial Court to decide the pending litigation.Therefore, the learned Single Judge, decided the matter on merits ratherthan referring it to the larger Bench for decision.

5. In this background, the argument of the learned counselappearing for the appellant is that the High Court has not maintainedjudicial decorum and should have referred the matter to the larger Benchto decide the scope and ambit of Section 7(2) of the Act. We find thatsince short question of law arises for consideration, therefore, withoutgoing into the question as to whether learned Single Judge should havereferred the matter to the larger Bench or not, the question to be decidedby this Court is to bring certainty in respect of scope of Section 7 of theAct.

6. Learned counsel for the appellant contends that the provisionsof Section 7(2) of the Act are pari-materia to Section 17(2) of WestBengal Premises Tenancy Act, 1956[2]which was the subject matter ofconsideration in an earlier judgment of this Court reported as B.P.Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick[3]. Learned counselfor the appellant argued that the Limitation Act, 1963 would be applicableto seek condonation of delay in filing an application under Section 7(2)of the Act. The learned Counsel also placed reliance upon judgmentsreported as Shibu Chandra Dhar v. Pasupati Nath Auddya[4]and GayaPrasad Kar v. Subrata Kumar Banerjee[5]

2 for short the “1956 Act”3 (1987) 2 SCC 407

4 (2002) 3 SCC 617

5 (2005) 8 SCC 14(3)

A7. On the other hand, learned counsel for the respondent submittedthat the judgments in B.P. Khemka, Shibhu Chandra Dhar andGayaPrasad Kar deal with Section 17 of the 1956 Act, wherein, sub section(2A) empowers the court to extend the time specified in sub section (1)or sub section (2). Sub section (2A) is an overriding provision startingwith non obstante clause. There is no such equivalent provision inBthe Act which was enacted while repealing the 1956 Act. It is arguedthat B. P.Khemka has been considered by three Judge Bench judgmentreported as Arjun Khiamal Makhijani Etc vs Jamnadas C. Tuliani& Ors. Etc[6 ]and distinguished the same in view of sub section (2A) ofthe 1956 Act.

8. In another three Judge Bench judgment reported asNasiruddinand Ors. vs Sita Ram Agarwal[7], it was held that in termsof clause (a) of sub-section (2A) of Section 17 of the 1956 Act, therequisite power to extend the time for deposit of rent on an applicationmade by the tenant is without any restriction. It was further held that theDquestion of application of Section 5 of the Limitation Act, 1963 wouldarise, if the appellant or the applicant satisfies the court that he hadsufficient cause for not making the appeal or application within suchperiod. Section 13(4) of the Rajasthan Premises (Control of Rent andEviction) Act, 1950[8] provides that the tenant shall on the first date ofhearing or, on or before such date, shall deposit in court or pay to theElandlord in court from the date of such determination the amount sodetermined or within such further time not exceeding three months asmay be extended by the Court. Thus, sub-section (4) itself provides forlimitation of specific period within which the deposit has to be made,which cannot exceed three months as extended by this Court. The depositFby the tenant within 15 days is not an application within the meaning ofSection 5 of the Limitation Act, 1963. Since the deposit does not requireany application, therefore, the provisions of Section 5 cannot be extendedwhere the default takes place in complying with an order under sub-section (4) of Section 13 of the Act. It is thus contended that provisions

of the Rajasthan Act are close to the language of Section 7 of the Act.GTherefore, the Limitation Act is not applicable to seek condonation ofdelay in filing an application under Section 7(2) of the Act. It was held asunder:

6 (1989) 4 SCC 612H7 (2003) 2 SCC 577

“15. B.P. Khemka [(1987) 2 SCC 407 : AIR 1987 SC 1010] aroseout of the West Bengal Premises Tenancy Act, 1956 (in short“the West Bengal Act”). In the said case the tenant committeddefault in payment of arrears of rent and the landlord brought asuit for eviction on the ground of default. While the suit was pending,the West Bengal Premises Tenancy (Amendment) Ordinance 6of 1967, which was replaced by the West Bengal PremisesTenancy (Amendment) Act 30 of 1969 came to be promulgatedwith effect from 26-8-1967. The Act gave retrospective effectto the amendments by providing that the amendments made bySection 2 of the Ordinance shall have effect in respect of all suitsincluding appeals which were pending at the date ofcommencement of the Ordinance. The amendments inter aliaenabled tenants who were in default to apply to the court and paythe arrears of rent in instalments and thereby avert their eviction.In pursuance thereof, the tenant deposited the rent. However, hesubsequently committed default in paying monthly rent.Consequently, the defence was struck off on the ground that inpaying the rent for the months of September 1968 and March1969, there had been delay of 44 days and 6 days respectively,which was in contravention of Section 17(1) of the West BengalAct.

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17. This Court in B.P. Khemka case [(1987) 2 SCC 407 : AIR1987 SC 1010] while interpreting the provisions of sub-section (4)held that the proviso makes it clear that if the subsequent defaultis for period of 4 months within period of 12 months, thetenant can claim relief under the sub-section once again. Sincethe default was less than 40 days, this Court held that under thesaid proviso, the delay could be condoned.”

9. The reliance is placed upon Monoj Lal Seal v. Octavious Tea& Industries Ltd[9], E. Palanisamy v. Palanisamy[10], and BalwantSingh v. Anand Kumar Sharma[11]as to when the statutory provisionscan be said to be directory or mandatory.Learned counsel for the

8 for short the “Rajasthan Act”.9 (2015) 8 SCC 640

10 (2003) 1 SCC 123

11 (2003) 3 SCC 433

Arespondent referred to various orders passed by the Calcutta High Court,taking view that non-deposit of arrears of rent will result in dismissalof the application under Section 7 of the Act.

10. We do not find any error in the order passed by the HighCourt. One of the grounds of the eviction in terms of the Section 6(1)(b)Bof the Act is default in payment of rent for three months within theperiod of twelve months, or for three rental periods within the period ofthree years where the rent is not payable monthly. It is Section 7 of theAct which provides for an opportunity to the tenant to make the paymentof arrears of rent, to avoid an order of eviction on account of its non-payment. The relevant provisions of Section 7 of the Act read as under:C

“7. When tenant can get the benefit of protection againsteviction.—(1) (a) On suit being instituted by the landlord foreviction on any of the grounds referred to in Section 6, the tenantshall, subject to the provisions of sub-section (2) of this section,pay to the landlord or deposit with the Civil Judge all arrears ofrent, calculated at the rate at which it was last paid and upto theend of the month previous to that in which the payment is madetogether with interest at the rate of ten per cent per annum.

(b) Such payment or deposit shall be made within one month ofthe service of summons on the tenant or, where he appears in theEsuit without the summons being served upon him, within one monthof his appearance.

(c) The tenant shall thereafter continue to pay to the landlord ordeposit with the Civil Judge month by month by the 15th of eachsucceeding month, sum equivalent to the rent at that rate.

(2) If in any suit referred to in sub-section (1), there is any disputeas to the amount of the rent payable by the tenant, the tenantshall, within the time specified in that subsection, deposit with theCivil Judge the amount admitted by him to be due from him togetherwith an application for determination of the rent payable. No suchdeposit shall be accepted unless it is accompanied by an applicationfor determination of the rent payable. On receipt of the application,the Civil Judge shall, having regard to the rate at which rent waslast paid and the period for which default may have been made bythe tenant, make, as soon as possible within period not exceedingone year, an order specifying the amount, if any, due from the

tenant and, thereupon, the tenant shall, within one month of thedate of such order, pay to the landlord the amount so specified inthe order:

Provided that having regard to the circumstances of the case anextension of time may be granted by the Civil Judge only onceand the period of such extension shall not exceed two months.

(3) If the tenant fails to deposit or pay any amount referred to insub-section (1) or sub-section (2) within the time specified thereinor within such extended time as may be granted, the Civil Judgeshall order the defence against delivery of possession to be struckout and shall proceed with the hearing of the suit.

(4) If the tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no order for delivery of possessionof the premises to the landlord on the ground of default in paymentof rent by the tenant, shall be made by the Civil Judge, but he mayallow such cost as he may deem fit to the landlord:

Provided that the tenant shall not be entitled to any relief underthis subsection if, having obtained such relief once in respect ofthe premises, he again makes default in payment of rent for fourmonths within period of twelve months or for three successiverental periods where rent is not payable monthly.”

11. The Act has repealed the 1956 Act which had almost similarprovisions as contained in Section 7(1) and 7(2) of the Act, but the materialdistinction is of sub sections (2A) and (2B) inserted by West BengalPremises Tenancy (Amendment) Ordinance No. IV of 1967. This wasreplaced by West Bengal Premises Tenancy (Amendment) Act 30 of1969 with effect from 26.08.1967, giving retrospective effect to theamendments which were made applicable to all suits, including appeals,which were pending before commencement of the Ordinance. Subsections (2A) and (2B) so inserted read as thus:

“(2A) Notwithstanding anything contained in sub-section (1) orsub-section

(2), on the application of the tenant, the Court may, by order,-

(a) extend the time specified in sub-section (1) or sub-section

(2) for the deposit or payment of any amount referred to therein;

(b) having regard to the circumstances of the tenant as also ofthe landlord and the total sum inclusive of interest required to bedeposited or paid under sub-section (1) on account of default inthe payment of rent, permit the tenant to deposit or pay such sumin such instalments and by such dates as the Court may fix:

Provided that where payment is permitted by instalments suchsum shall include all amounts calculated at the rate of rent for theperiod or default including the period subsequent thereto up to theend of the month previous to that in which the order under thissub-section is to be made with interest on any such amountcalculated at the rate specified in sub-section (1) from the datewhen such amount was payable up to the date of such order.

(2B) No application for extension of time for the deposit or paymentof any amount under clause (a) of sub-section (2A) shall beentertained unless it is made before the expiry of the time specifiedtherefor in sub-section (1) or sub-section (2), and no applicationfor permission to pay in instalment under clause (b) of sub-section(2A) shall be entertained unless it is made before the expiry ofthe time specified in sub-section (1) for the deposit or payment ofthe amount due on account of default in the payment of rent.”

12. This Court, while considering the above provisions of the 1956EAct in B.P. Khemka held as under:

“11. Since the Ordinance came to be replaced long after by theAct, Section 5 of the Ordinance was not reproduced in the Actbecause it had served its purpose. What is, however, of significanceis that Section 5 of the Ordinance entitled the appellant to file anapplication under Section 17(2-A)(b), in the suit filed by the firstrespondent which was pending then. Unfortunately, the High Courthas looked only into the Act and not the Ordinance and that ishow Section 5 of the Ordinance has escaped its notice. WhenSection 17(2-A) and Section 5 of the Ordinance are read conjointlyit may be seen that it was the intention of the legislature to extendthe benefit of subsection (2-A) to all pending suits and appealsirrespective of the fact whether the time limit of one monthprescribed under Section 17(1) had expired or not. No otherconstruction is possible because any other construction would havethe effect of rendering otiose Section 5 of the Ordinance…..

12. If it was the intention of the legislature to restrict the benefitsgiven under Section 17(2-A) to only those tenants against whomsuits had been filed within one month prior to the promulgation ofthe Ordinance, there was no necessity to give retrospectivity tosub-section (2-A) under Section 5 of the Ordinance. It has,therefore, to be held that all tenants against whom suits or appealswere pending on the date of the promulgation of the Ordinancewere entitled to seek the benefit of Section 17(2-A) by filing anapplication within one month from the date of promulgation of theOrdinance. The High Court was, therefore, in error in holdingthat the application under Section 17(2-A)(a) was itself notmaintainable. If the High Court’s view is to be accepted it wouldthen amount to asking the appellant to perform the impossible i.e.asking the appellant to file an application under Section 17(2-A)(b)which came into force on August 26, 1967 within one month fromApril 6, 1967 when the suit summons was served. Therefore thefirst question has to be answered in favour of the appellant. Theresultant position would then be that insofar as the payment ofarrears for the period ending February 29, 1968 is concerned, theappellant had complied with the orders of the court under Section17(2-A)(b) and was therefore entitled to claim the benefit ofSection 17(4).”

13. The said judgment was followed in Shibu Chandra Dharconsidering the 1956 Act. The judgment in Gaya Prasad Kar is alsointerpreting the provisions of the 1956 Act.

14. However, another three Judge Bench judgment in ArjunKhiamal whileexamining provisions of the Bombay Rents, Hotel andLodging House Rates Control Act,1947[12] considered the judgmentreported as Vatan Mal v. Kailash Nath[13], dealing withtheRajasthanAct,held that Section 13(a) of the Rajasthan Act was to confer benefits onall tenants against whom suits for eviction on the ground of default ofpayment of rent were pending. Such judgment was not found to beattracted in view of mandatory provisions contained in Section 12(3)(a)of the Bombay Act. The judgment in B.P. Khemka was found not to beof any assistance for the same reason.

12 for short the “Bombay Act”

13 (1989) 3 SCC 79

A15. This Court in Nasiruddin also considered the question as towhether provisions of statute being directory or mandatory woulddepend upon the language implied therein, and referred to judgmentreported as Union of India v. Philip Tiago De Gama[14]. This Courtalso examined the judgment in Shyamcharan Sharma v. Dharamdas[15],wherein it was found that there is no restriction in M.P. AccommodationBControl Act, 1961[16] to condone delay to deposit the arrears of rent,whereas, the discretion available to the court under the Rajasthan Act islimited. For the same reason, it was found that in terms of the DelhiRent Control Act, 1958[17], the court has power to extend the time todeposit arrears of rent. This Court held as under:

“31. We may further notice that in Shibu Chandra Dhar v.Pasupati Nath Auddya [(2002) 3 SCC 617] which also aroseout of the West Bengal Premises Tenancy Act, it was held thatunder sub-section (2-A) of Section 17 of the Act, the court has apower to extend the period for depositing the rent in the event ofDdefault by the tenant to deposit the rent within stipulated time.This Court further held that if court has no power to extendthe time, then in cases of small default beyond the reason ofthe tenant, the time cannot be extended.

32. It is interesting to note that in Ganpat Ladha v. SashikantEVishnu Shinde [(1978) 2 SCC 573 : (1978) 3 SCR 198] this Courtwhile interpreting similar provisions occurring in Section 12(3)(a)of the Bombay Rents, Hotel, Lodging House Rates Control Act,1947 (hereinafter referred to as “the Bombay Rent Act”) held:(SCC p. 580, para 11)

F“Section 12(3)(b) does not create any discretionary jurisdictionin the Court. It provides protection to the tenant on certainconditions and these conditions have to be strictly observed bythe tenant who seeks the benefit of the section. If the statutoryprovisions do not go far enough to relieve the hardship of thetenant the remedy lies with the legislature. It is not in the handsGof courts.”

14 (1990) 1 SCC 277

15 (1980) 2 SCC 151

16 For short the “M.P. Act”

H17 For short the “Delhi Act”

Thus under the Bombay Rent Act only on certain grounds thecourt can exercise its discretionary power and not on othergrounds.”

16. While examining as to when the provision of statute is to betreated as directory or mandatory, this Court held in Nasiruddin casethat if an act is required to be performed by private person within aspecified time, the same would ordinarily be mandatory but when publicfunctionary is required to perform public function within time-frame,the same will be held to be directory unless the consequences thereofare specified. It was held as under:

“37. The court’s jurisdiction to interpret statute can be invokedwhen the same is ambiguous. It is well known that in given casethe court can iron out the fabric but it cannot change the textureof the fabric. It cannot enlarge the scope of legislation or intentionwhen the language of the provision is plain and unambiguous. Itcannot add or subtract words to statute or read something into itwhich is not there. It cannot rewrite or recast legislation. It is alsonecessary to determine that there exists presumption that thelegislature has not used any superfluous words. It is well settledthat the real intention of the legislation must be gathered from thelanguage used. It may be true that use of the expression “shall ormay” is not decisive for arriving at finding as to whether thestatute is directory or mandatory. But the intention of the legislaturemust be found out from the scheme of the Act. It is also equallywell settled that when negative words are used the courts willpresume that the intention of the legislature was that the provisionsare mandatory in character.

38. Yet there is another aspect of the matter which cannot be lostsight of. It is well-settled principle that if an act is required to beperformed by private person within specified time, the samewould ordinarily be mandatory but when public functionary isrequired to perform public function within time-frame, thesame will be held to be directory unless the consequences thereforare specified. In Sutherland’s Statutory Construction, 3rd Edn.,Vol. 3, at p. 107 it is pointed out that statutory direction to privateindividuals should generally be considered as mandatory and thatthe rule is just the opposite to that which obtains with respect topublic officers. Again, at p. 109, it is pointed out that often the

question as to whether mandatory or directory constructionshould be given to statutory provision may be determined by anexpression in the statute itself of the result that shall follow non-compliance with the provision.

xxx

40. Thus, on analysis of the aforesaid two decisions we find thatwherever the special Act provides for extension of time orcondonation of default, the court possesses the power therefor,but where the statute does not provide either for extension oftime or to condone the default in depositing the rent within thestipulated period, the court does not have the power to do so.

41. In that view of the matter it must be held that in absence ofsuch provisions in the present Act the Court did not have thepower to either extend the period to deposit the rent or to condonethe default in depositing the rent.”

D17. Further, three Judge Bench of this Court in judgmentreported as Union of India and Others v. A. K. Pandey[18] held asunder:

“15. The principle seems to be fairly well settled that prohibitiveor negative words are ordinarily indicative of mandatory natureEof the provision; although not conclusive. The Court has toexamine carefully the purpose of such provision and theconsequences that may follow from non-observance thereof. Ifthe context does not show nor demands otherwise, the text of astatutory provision couched in negative form ordinarily has tobe read in the form of command. When the word “shall” isFfollowed by prohibitive or negative words, the legislative intentionof making the provision absolute, peremptory and imperativebecomes loud and clear and ordinarily has to be inferred as such.There being nothing in the context otherwise, in our judgment,there has to be clear ninety-six hours’ interval between the accusedGbeing charged for which he is to be tried and his arraignment andinterval time in Rule 34 must be read as absolute. There is apurpose behind this provision: that purpose is that before theaccused is called upon for trial, he must be given adequate time togive cool thought to the charge or charges for which he is to be

tried, decide about his defence and ask the authorities, if necessary,to take reasonable steps in procuring the attendance of hiswitnesses. He may even decide not to defend the charge(s) butbefore he decides his line of action, he must be given clear ninety-six hours.”

18. The judgment in B.P.Khemka is in respect of statute givingpower to condone delay without any fetters. The amendments carriedwith retrospective effect inter alia enabled tenants who were in defaultto apply to the court and pay the arrears of rent in instalments and therebyavert their eviction. In pursuance of the amendments, the tenant depositedthe rent. However, he subsequently committed default in paying monthlyrent. Consequently, the defence was struck off on the ground that inpaying the rent for the months of September 1968 and March 1969,there had been delay of 44 days and 6 days respectively, which was incontravention of Section 17(1) of the West Bengal Act. This Court heldthat the proviso makes it clear that if the subsequent default is for aperiod of 4 months within period of 12 months, the tenant can claimrelief under the sub-section once again. Since the default was less than40 days, this Court held that under the said proviso, the delay could becondoned. Provisions of M.P. Act and of Delhi Act are also similar.19. Sub section (1) of Section 7 of the Act relieves the tenantfrom the ejectment on the ground of non-payment of arrears of rent ifhe pays to the landlord or deposits it with the Civil Judge all arrears ofrent, calculated at the rate at which it was last paid and up to the end ofthe month previous to that in which the payment is made together withinterest at the rate of ten per cent per annum. Such payment or depositshall be made within one month of the service of summons on the tenantor, where he appears in the suit without the summons being served uponhim, within one month of his appearance.

20. Therefore, sub section (1) deals with the payment of arrearsof rent when there is no dispute about the rate of rent or the period ofarrears of rent. Sub section (2) of the Act comes into play if there isdispute as to the amount of rent including the period of arrears payableby the tenant. In that situation, the tenant is obliged to apply within timeas specified in sub section (1) that is within one month of the receipt ofsummons or within one month of appearance before the court to depositwith the Civil Judge the amount admitted by him to be due. The tenant isalso required to file an application for determination of the rent payable.

ASuch deposit is not to be accepted, unless it is accompanied by anapplication for determination of rent payable. Therefore, sub section (2)of the Act requires two things, deposit of arrears of rent at the rateadmitted to be due by the tenant along with an application for determinationof the rent payable. If the two conditions are satisfied then only theCourt having regard to the rate at which rent was last paid and forBwhich tenant is in default, may make an order specifying the amountdue. After such determination the tenant is granted one month’s timeto pay to the landlord the amount which was specified. The proviso ofthe Act, limits the discretion of the court to extend the time for deposit ofarrears of rent. The extension can be provided once and not exceedingCtwo months.21. Sub section (3) provides for consequences of non-payment ofrent i.e. striking off the defence against the delivery of the possessionand to proceed with the hearing of the suit. Such provision is materiallydifferent from sub sections (2A) and (2B) which was being examinedDby this Court in B.P. Khemka. Sub sections (2A) and (2B) of Section17 of 1956 Act confer unfettered power on the court to extend the periodof deposit of rent, which is circumscribed by the proviso of sub sections(2) and (3) of Section 7 of the Act. Therefore, the provisions of subsection (2) are mandatory and required to be scrupulously followed bythe tenant, if the tenant has to avoid the eviction on account of non-Epayment of arrears of rent under Section 6 of the Act. There is an outerlimit for extension of time to deposit of arrears of rent in terms of theproviso to sub section (2) of Section 7 of the Act. The consequencesflowing from non-deposit of rent are contemplated under sub section (3)of Section 7 of the Act. Therefore, if the tenant fails to deposit admittedFarrears of rent within one month of receipt of summons or within onemonth of appearance without summons and also fails to make anapplication for determination of the disputed amount of rate of rent andthe period of arrears and the subsequent non-payment on determining ofthe arrears of rent, will entail the eviction of the tenant. Section 7 of the

Act provides for complete mechanism for avoiding eviction on theGground of arrears of rent, provided that the tenant takes steps ascontemplated under sub section (2) of Section 7 of the Act and depositsthe arrears of rent on determination of the disputed amount. The depositof rent along with an application for determination of dispute is pre-condition to avoid eviction on the ground of non-payment of arrears ofH

rent. In view thereof, tenant will not be able to take recourse to Section5 of the Limitation Act as it is not an application alone which is requiredto be filed by the tenant but the tenant has to deposit admitted arrears ofrent as well.

22. In view of the judgment in Nasiruddin, we do not find anyerror in the order passed by the learned Single Judge. The Trial CourtBshall proceed with the suit in accordance with law. The appeals aredismissed.

Kalpana K. Tripathy

Appeals dismissed.