Full Judgment Text
2025 INSC 984
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
IN
[SPECIAL LEAVE PETITION (C) NO. 10900 OF 2024]
SEVENTH DAY ADVENTIST
SENIOR SECONDARY SCHOOL ...APPELLANT
VERSUS
ISMAT AHMED AND OTHERS ...RESPONDENTS
J U D G M E N T
J.K. Maheshwari, J.
1. Leave granted.
1
2. Challenging the order impugned dated 20.03.2024 passed by
2
High Court at Calcutta, confirming the order dated 17.07.2023 of
the Small Causes Court, which rejected the application under
Section 5 of the Limitation Act, 1963 filed by appellant–tenant
seeking condonation of delay in filing application under Section
Signature Not Verified
Digitally signed by
NIDHI AHUJA
Date: 2025.08.14
16:26:16 IST
Reason:
1
C.O. No. 2783 of 2023
2
Ejectment Suit No. 133 of 2019
1
7(1) of the West Bengal Premises Tenancy Act, 1997 (in short
‘WBPT Act’ ), the present appeal has been filed.
3. The appellant is a tenant in the suit premise being Flat No. 8,
First Floor, 44, Elliot Road, Kolkata, West Bengal, and the
respondents are the landlord. The relationship of landlord and the
tenant is not in dispute. The admitted monthly rent of the suit
premise is Rs. 1090/-. The landlord instituted the ejectment suit
on 11.06.2019 on the grounds of arrears of rent, bona-fide need
and sub-letting. On issuance of notice, summons were served upon
tenant on 29.09.2022. From the next day and date, i.e., 30.09.2022
till 27.10.2022, the Courts were closed because of Durga Puja
vacation in Kolkata. Thereafter, on 14.11.2022, the tenant filed the
applications under Sections 7(1) and 7(2) of the WBPT Act along
with application under Section 5 of the Limitation Act with the
prayer to condone the delay of 17 days in filing the application
under Section 7(1) of the WBPT Act.
4. In the application filed under Section 7(1) of the WBPT Act,
prayer was made to deposit the ‘current rent’ for the month of
November 2022 at the rate of Rs. 1090/- per month and to pass
such order as the Court may deem fit. Similarly, application under
2
Section 7(2) of the WBPT Act, was filed seeking determination of
default period, if any, and to refund the excess amount paid and to
pass such order as may deem fit.
5. Learned Small Causes Court by the impugned order rejected
the application under Section 5 of the Limitation Act, inter-alia ,
observing that the period to file an application as specified under
Section 7(1) of the WBPT Act is thirty days, which cannot be
extended by aid of Section 5 of the Limitation Act. Aggrieved by the
said order, the tenant preferred the revision before the High Court,
which was dismissed maintaining the order of the learned Small
Causes Court with certain observations qua applicability of
Sections 7(1) and (2) of the WBPT Act. Hence, this appeal.
6. Mr. Uday Gupta, learned senior counsel for the appellant–
tenant has strenuously urged that the tenant was lawfully
inducted by the respondents and has regularly paid the rent by
cheque to the son-in-law of the landlord (respondent no. 1), details
of which have been specified in the application preferred under
Section 7(1) and 7(2) of WBPT Act. It is urged that as per the details
of the cheque amount, a total sum of Rs. 2,80,500/- has been paid
and as per the averments made in the plaint, the rent due is from
3
March 2017, which comes to sixty eight months till date of filing of
applications under Section 7(1) and 7(2). As such the payment
made is more than the rent amount due, therefore, refund of the
said amount was sought for. It is urged that when amount of rent
is paid in excess, the applications under Section 7(1) and (2) of
WBPT Act ought to be considered on merits along with the
application for condonation of delay filed under Section 5 of
Limitation Act, 1963 by the tenant.
7. Learned senior counsel extensively referring Sections 7(1),
7(2), 7(3) and 7(4) of the WBPT Act, contended that proviso
appended to Section 7(2) would apply to Section 7(1) also,
therefore, if there is any delay in filing of the application under
Section 7(1) and (2), the same may be condoned at least once up to
two months. In support of the said contention, reliance has been
placed on the judgment in the case of Debasish Paul and
3
Another vs. Amal Boral , in particular paragraph 17, and also
urged that judgment in Bijay Kumar Singh and Others vs. Amit
4
Kumar Chamariya and Another , does not deal with the issue as
involved in the present case as relied upon by the High Court in
3
(2024) 2 SCC 169
4
(2019) 10 SCC 660
4
the order impugned. In view of the foregoing, it is submitted that
by, condoning the delay, learned Small Causes Court may be
directed to consider the applications filed under Sections 7(1) and
(2) of the WBPT Act on its own merit.
8. Per contra , Mr. Swarnendu Chatterjee, learned counsel
representing respondents–landlord has vehemently contended that
applications under Sections 7(1) and (2) of the WBPT Act have not
been filed within the prescribed statutory period of thirty days from
the date of receipt of summons, therefore, learned Small Causes
Court was right in rejecting the application filed under Section 5 of
Limitation Act, 1963, which is affirmed by the High Court. Learned
counsel placed reliance on the judgment of Bijay Kumar (supra)
to support that unless the deposit of the admitted amount of rent
has been made, the application under Section 7(1) and (2) of the
WBPT Act ought not to be entertained.
9. Mr. Nidhesh Gupta, learned senior counsel has appeared as
amicus curiae pursuant to our order dated 19.02.2025 and has
ably assisted the Court by placing his erudite submissions for
consideration. His propositions are twofold. Firstly , he has
submitted that, proviso to Section 7(2) of the WBPT Act applies to
5
sub-section (1) of Section 7 also. Referring relevant provisions and
emphasising the word ‘amount of rent’, ‘payment’ and ‘deposit’ as
referred at various places in Section 7(1), 7(2) and 7(3) along with
specification of time for such payment and deposit after
determination, he submitted that the proviso deals with extension
of ‘time’ as prescribed for ‘pay’ and ‘deposit’ in Sections 7(1) and (2)
both. In case the first proposition does not found favour, then the
second proposition may be considered, i.e., since the proviso is
textually located at the end of sub-section (2) of Section 7 and per
se does not refer to sub-section (1), but only refers to time specified
therein, it must be confined in its operation to latter part of sub-
section (2) of Section 7 alone.
10. After having heard the learned counsel for both the parties,
submissions of learned amicus, and on perusal of the facts and
material placed before us in the present case, the moot question
that falls for our consideration is ‘whether applications filed under
Sections 7(1) and (2) of the WBPT Act by the tenant without deposit
of rent after lapse of statutory period of thirty days, along with an
application under Section 5 of the Limitation Act, rejected by Court
6
of Small Causes as not entertainable, confirmed by the High Court
is justified?’
11. For appreciating the question as posed in detail, the
provisions of Section 7 of the WBPT Act which are relevant for
determination of the same are required to be noted and examined
and therefore, we reproduce them hereinbelow:
“7. When a tenant can get the benefit of
protection against eviction.
(1) (a) On a suit being instituted by the landlord
for eviction on any of the grounds referred to in section
6, the tenant shall, subject to the provisions of sub-
section (2) of this section, pay to the landlord or deposit
with the Civil Judge all arrears of rent, calculated at
the rate at which it was last paid and upto the end of
the month previous to that in which the payment is
made together with interest at the rate of ten per cent
per annum.
(b) Such payment or deposit shall be made
within one month of the service of summons on the
tenant or, where he appears in the suit without the
summons being served upon him, within one month of
his appearance.
(c) The tenant shall thereafter continue to
pay to the landlord or deposit with the Civil
Judge month by month by the 15th of each succeeding
month, a sum equivalent to the rent at that rate.
7
(2) If in any suit referred to in sub-section (1),
there is any dispute as to the amount of the rent
payable by the tenant, the tenant shall, within the time
specified in that sub-section, deposit with the Civil
Judge the amount admitted by him to be due from him
together with an application for determination of the
rent payable. No such deposit shall be accepted unless
it is accompanied by an application for determination
of the rent payable. On receipt of the application, the
Civil Judge shall, having regard to the rate at which
rent was last paid and the period for which default
may have been made by the tenant, make, as soon as
possible within a period not exceeding one year, an
order specifying the amount, if any, due from the
tenant and, thereupon, the tenant shall, within one
month of the date of such order, pay to the landlord
the amount so specified in the order:
Provided that having regard to the circumstances of
the case, an extension of time may be granted by the
Civil Judge only once and the period of such extension
shall not exceed two months.
(3) If the tenant fails to deposit or pay any
amount referred to in sub-section (1) or sub-section (2)
within the time specified therein or within such
extended time as may be granted, the Civil
Judge shall order the defence against delivery of
possession to be struck out 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 possession of the premises to the
8
landlord on the ground of default in payment of rent
by the tenant, shall be made by the Civil Judge, but he
may allow such cost as he may deem fit to the
landlord:
Provided that the tenant shall not be entitled to any
relief under this sub-section if, having obtained such
relief once in respect of the premises, he again makes
default in payment of rent for four months within a
period of twelve months or for three successive rental
periods where rent is not payable monthly.
12. Bare reading of the aforesaid provisions makes it clear that
as per sub section (1) of Section 7, in a suit for eviction filed by the
landlord on any grounds as specified in Section 6 of the WBPT Act,
the tenant shall, subject to provisions of sub-section (2), pay to the
landlord or deposit in the Court, all arrears of rent calculated at
the rate at which it was last paid together with interest at the rate
of ten per cent per annum. As mandated by Section 7(1)(b), the said
payment or deposit shall be made within one month from the date
of service of the summons on tenant or from the date of appearance
in case the tenant appears without service of summons. The said
two provisions apply in a case where arrears of rent are admitted.
Thereafter, Section 7(1)(c) puts a further condition that after the
admitted arrears are paid, the tenant shall continue to pay or
9
deposit with the landlord or Civil Judge, as the case may be, a
monthly sum of rent at that rate on or before fifteenth day of
consecutive month.
13. As per sub-section (2), if there is a dispute as to the amount
of rent payable by the tenant, he is required to deposit the admitted
amount due from him in the Court within the time as specified [one
month as per Section 7(1)(b)] ‘together’ with an application for
determination of the rent payable. It is emphasised that deposit of
rent shall not be accepted unless the said prayer is accompanied
with an application for determination of the rent. Meaning thereby,
to seek protection against eviction, the tenant is required to deposit
the admitted amount of rent within the time as specified, i.e.,
within one month from the date of summons served or where
tenant appears in the suit without the summons being served upon
him, along with an application for determination of the rent so
payable. As such, in case where there is no dispute as to arrears of
rent, it ought to be paid within a month and, in case it is in dispute,
even then, tenant would be required to deposit within the same
time coupled with an application as discussed above.
10
14. To supplement the aforesaid, word ‘together’ used in Section
7(2) preceding ‘with an application for determination of the rent
payable’ emphasises that the deposit of admitted amount of rent
within a period of thirty days as specified must accompany the
application for determination of rent payable. At this stage, we can
5
profitably refer to ‘P. Ramanatha Aiyar’s Advanced Law Lexicon’
to understand the meaning of ‘together’. According to the same,
‘together’ means “in company” or “conjointly” or “simultaneously” .
Accordingly, on contextual application of the word ‘together’, it is
clear that the application for determination of rent must be filed
within the same period which is provided for ‘deposit’ or ‘pay’, i.e.,
thirty days.
15. On receiving such application, the Court having regard to the
rate of rent last paid and period of which default has been made by
the tenant shall make an order on such application not later than
one year and thereupon the tenant shall within the period of one
month of the date of such order, pay to the landlord the amount so
specified in the order. That is to say, the determination of the rent
on the parameters as specified in the latter part of sub-section (2)
5 rd
P. Ramanatha Aiyar , Advanced Law Lexicon Pg. 4707 (3 Edition, 2005)
11
and on such determination within one month of the date of the
order, the amount as specified in the order is to be paid. The
proviso thereto deals with the extension of time, which can only be
once and not beyond period of two months.
16. Having perused Section 7 of WBPT Act, it is apparent that
sub-section (1) is subject to sub-section (2). Further, sub-section
(3) specifies consequences of non-compliance of sub-sections (1)
and (2) by the tenant, leading to striking out of defence against
delivery of possession and the Court shall proceed with the hearing
of the suit. Sub-section (4) of Section 7 of WBPT Act makes it clear
that in a proceeding of eviction, no order for delivery of possession
of the premises to the landlord shall be passed by the Court on the
ground of default of payment if the tenant deposits the rent under
sub-sections (1) or (2), but the Court may allow such cost to the
landlord as deemed fit. As per proviso, it is clear that if tenant was
allowed the relief as indicated hereinabove, but later he makes
default in payment of rent for four months within one year or in
case three successive rental periods, where the rent is not payable
monthly, the relief of protection against eviction available under
12
sub-section (4) cannot be allowed granting benefit of protection
against eviction to the tenant.
17. In view of the foregoing, while bringing the said Section, the
legislative intent was to provide protection to the tenant against
eviction, subject to compliance of deposit of arrears of rent if there
is no dispute as to amount of rent, within one month from the date
of service of summons, along with interest at the rate of ten per
cent per annum. The tenant is further required to deposit the
regular rent as prescribed in Section 7(1)(c). In case, there is a
dispute of the amount of rent payable, the tenant is required to
deposit the amount due as admitted by him within thirty days and
file an application conjointly for determination of rent within the
same period. The said application may possibly be entertained and
decided by the Court thereafter only. This Court in the case of
Bijay Kumar (supra) had an occasion to consider the scope of
Section 7(2) of the WBPT Act wherein the tenant had not deposited
or paid the admitted rent while moving an application seeking
determination of rent. Trial Court while allowing such application
granted time to pay the admitted rent, but High Court set-aside the
order of the Trial Court. While confirming the order of the High
13
Court on the issue of deposit of rent admitted by tenant under
Section 7(2) on the application for determination of rent, this Court
observed as under –
“21. …the deposit of rent along with an application for
determination of dispute is a precondition to avoid
eviction on the ground of non-payment of arrears of
rent. In view thereof, tenant will not be able to take
recourse to Section 5 of the Limitation Act as it is not
an application alone which is required to be filed by
the tenant but the tenant has to deposit admitted
arrears of rent as well. ”
18. Thus, in case of disputed rent, this Court was of the view that
to avail the benefit of protection against eviction under the WBPT
Act, the tenant has to do the following to avoid eviction, first, to
deposit rent admitted by him to be due; second, an application for
determination of rent payable be filed along with. The tenant had
neither deposited, nor paid the admitted rent and had only filed the
application for determination of rent belatedly along with an
application under Section 5 of the Limitation Act, 1963.
19. On perusal of provisions of the WBPT Act, it appears that
Section 40 prescribes the applicability of the Limitation Act, 1963
in proceedings and appeals. ‘Proceedings’ as defined in ‘P.
14
6
Ramanatha Aiyar’s Advanced Law Lexicon’ includes ‘any suit,
appeal or application’ . Since the said provision is relevant, it is
reproduced for ready reference as under:-
“40. Application of the Limitation Act, 1963 to
proceedings and appeals.
Subject to the provisions of this Act relating to
limitation, the provisions of the Limitation Act, 1963,
shall apply to proceedings and appeals under this
Act . ”
Upon reading of the aforesaid, it is clear that the provisions
of the Limitation Act, 1963, would apply to the proceedings and
appeals subject to the provisions of the WBPT Act relating to
limitation. Thus, the applicability of the Limitation Act, 1963 vis-
à-vis WBPT Act is not in general, but subject to the provisions of
the limitation specified in the WBPT Act itself.
20. In the said context, this Court in Debasish Paul (supra)
referred to the judgment in Bijay Kumar (supra) and in paragraph
16, while examining the applicability of Section 5 application under
Limitation Act, 1963, observed as under:-
“16. We have no doubt over the proposition that
though generally the Limitation Act is applicable to the
6 rd
P. Ramanatha Aiyar , Advanced Law Lexicon Pg. 3745 (3 Edition, 2005)
15
provisions of the said Act in view of Section 40 of the
said Act, if there is a lesser time period specified as
limitation in the said Act, then the provisions of the
Limitation Act cannot be used to expand the same. It
is in this context that in Nasiruddin case [Nasiruddin
v. Sita Ram Agarwal, (2003) 2 SCC 577] , it has been
mentioned that the real intention of the legislation
must be gathered from the language used. Thus, the
reasoning in Bijay Kumar Singh case [Bijay Kumar
Singh v. Amit Kumar Chamariya, (2019) 10 SCC 660 :
(2020) 1 SCC (Civ) 24] cannot be doubted more so as
the requirement is for a tenant to file an application,
but he has to deposit the admitted arrears of rent as
well, which has certainly not been done. ”
21. In view of the foregoing, it can safely be concluded that in
general, the applicability of the Limitation Act, 1963 is permissible
subject to limitation prescribed under the provisions of the WBPT
Act. In this sense, this Court was right in observing that if a lesser
time period or limitation has been specified for proceedings under
the WBPT Act, then extension of time applying the provisions of the
Limitation Act, 1963 cannot be allowed. Be that as it may, in the
present case, neither the rent as specified under Sections 7(1) and
7(2) has been paid or deposited by the tenant, nor the application
for determination of rent has been filed within the period of thirty
days as prescribed. Therefore, in the absence of fulfilment of these
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twin conditions, tenant cannot avail the benefit of protection
against eviction as envisaged under Section 7 of WBPT Act.
22. Now reverting on the ancillary issue, whether compliance of
the provisions of Sections 7(1) and 7(2) so far as it relates to
payment or deposit of the rent and filing of application within the
time as specified is mandatory or directory? In order to understand
whether such compliance is mandatory or directory, it is essential
to look into the language as used in those provisions. After perusal
of Section 7(1)(a), it is clear that on institution of a suit, it is
incumbent on the tenant to deposit the rent, therefore, the word
‘tenant shall’ has been used with ‘pay to landlord or deposit’. Even
in Section 7(1)(b), it is provided that such payment or deposit ‘shall’
be within one month of the service of summons or within one
month from the date of appearance. Further, in Section 7(1)(c) it is
provided that after the payment or deposit has been made by the
tenant in terms of Section 7(1)(a), the tenant ‘shall ’ continue to do
th
the same by 15 of each succeeding month.
23. Similarly, in Section 7(2) which deals with the situation of
disputed rent, the tenant within the time specified in that Section
i.e., 7(1)(b), ‘shall’ deposit the amount admitted by him to be due
17
along with application for determination of rent. The proviso
appended therein relates to extension of time only once and upto a
maximum period of two months. The proviso reads as ‘…an
extension of time may be granted…’
24. In view of the plain reading of the provisions specified in
Sections 7(1)(a)(b)(c) and 7(2) and also the proviso thereto, it is clear
that for the purpose of payment or deposit of the arrears of rent or
rent admitted to be due within the time as specified and also for
filing of the application, the word ‘shall’ has been used. However,
for the purpose of extension of time, the word ‘may’ has been used
indicating discretion vested with the Court.
25. In this regard, guidance may be taken from three-Judge
Bench judgment in the case of ‘Nasiruddin and Others Vs. Sita
7
Ram Agarwal’ wherein this Court, inter-alia, interpreted the
mandatory or directory nature of expressions ‘shall’ and ‘may’
used in Section 13(4) of Rajasthan Premises (Control of Rent and
Eviction) Act, 1950 (in short ‘1950 Act’ ) in the framework of rent
deposit obligations qua determination of provisional rent. How and
7
(2003) 2 SCC 577
18
for what purpose the word shall has been used in this regard in
Section 13(4) of 1950 Act is referred which reads as thus:
“13. (4) The tenant shall deposit in court or pay to the
landlord the amount determined by the court under
sub-section (3) within fifteen days from the date of
such determination, or within such further time, not
exceeding three months, as may be extended by the
court. The tenant shall also continue to deposit in court
or pay to the landlord, month by month, the monthly
rent subsequent to the period up to which
determination has been made, by the fifteenth of each
succeeding month or within such further time not
exceeding fifteen days, as may be extended by the
court, at the monthly rate at which the rent was
determined by the court under sub-section (3). ”
While interpretating the said provisions some paragraphs of the
judgment which are relevant for our purposes are reproduced as
under:-
“37. The court's jurisdiction to interpret a statute can
be invoked when the same is ambiguous. It is well
known that in a given case the court can iron out the
fabric but it cannot change the texture of the fabric. It
cannot enlarge the scope of legislation or intention
when the language of the provision is plain and
unambiguous. It cannot add or subtract words to a
statute or read something into it which is not there. It
cannot rewrite or recast legislation. It is also
necessary to determine that there exists a
19
presumption that the legislature has not used any
superfluous words. It is well settled that the real
intention of the legislation must be gathered from the
language used. It may be true that use of the
expression “shall or may” is not decisive for arriving at
a finding as to whether the statute is directory or
mandatory. But the intention of the legislature must be
found out from the scheme of the Act. It is also equally
well settled that when negative words are used the
courts will presume that the intention of the legislature
was that the provisions are mandatory in character.
38. Yet there is another aspect of the matter which
cannot be lost sight of. It is a well-settled principle that
if an act is required to be performed by a private
person within a specified time, the same would
ordinarily be mandatory but when a public
functionary is required to perform a public function
within a time-frame, the same will be held to be
directory unless the consequences therefor are
specified. In Sutherland's Statutory Construction, 3rd
Edn., Vol. 3, at p. 107 it is pointed out that a statutory
direction to private individuals should generally be
considered as mandatory and that the rule is just the
opposite to that which obtains with respect to public
officers. Again, at p. 109, it is pointed out that often
the question as to whether a mandatory or directory
construction should be given to a statutory provision
may be determined by an expression in the statute
itself of the result that shall follow non-compliance
”
with the provision.
20
In the context of the said case, the word ‘shall’ used in Section
13(4) for deposit was treated as mandatory because of the
consequence of non-compliance was provided in Section 13(5), i.e.,
striking out the defence against eviction. Moreover, the word ‘may’
has been used in the context of power of the Court in extending the
already prescribed time period of fifteen days in depositing the
determined rent.
26. In addition, as per ‘P. Ramanatha Aiyar’s Advanced Law
8
Lexicon’ , the word ‘shall’ is defined as “in common parlance, a term
which, it is said, has always a compulsory meaning, and in its
common and ordinar y usage, unless accompanied by qualifying
words which show a contrary intent, always refers to the future; but
it may be used in a sense of ‘must’ of which it is a synonym.”.
Therefore, the said word used in statute is generally mandatory.
Similarly, ‘may’ is defined as “In general, May is an auxiliary verb
qualifying the meaning of another verb by expressing the ability,
contingency, possibility, or probability …… As used in statute, in its
ordinary sense the word is permissive and not mandatory , merely
importing permission, ability, possibility, or contingency.”
8 rd
P. Ramanatha Aiyar , Advanced Law Lexicon Pg. 4325 (3 Edition, 2005)
21
9
Simultaneously, in ‘Principles of Statutory Interpretation’ , revised
by Justice A.K. Patnaik, it is specifically said that use of word ‘shall’
with respect to one matter and use of word ‘may’ with respect to
another matter in the same section of statute shall normally lead
to the conclusion that the word ‘shall’ imposes an obligation,
whereas the word ‘may’ confers a discretionary power. In this
regard, guidance can be taken from the judgment of this Court in
the case of Ganesh Prasad Sah Kesari and Anr. Vs. Lakshmi
10
Narayan Gupta .
27. In the case of Govindlal Chhaganlal Patel Vs. The
Agricultural Produce Market Committee, Godhra and
11
Others , three-Judge Bench of this Court while interpreting the
words ‘shall’ and ‘may’ as referred in the Crawford on Statutory
Construction (Ed. 1940, Article 261 p.516) , set out the following
passage from an American case approvingly:
“The question as to whether a statute is mandatory
or directory depends upon the intent of the
legislature and not upon the language in which the
intent is clothed. The meaning and intention of the
legislature must govern, and these are to be
ascertained, not only from the phraseology of the
9
Justice G.P. Singh, Principles of Statutory Interpretation Including the General Clauses Act,
th
1897 with Notes, Pg. 453 (14 Edition, 2016)
10
1985 3 SCC 53
11
1975 2 SCC 482
22
provision, but also by considering its nature, its
design, and the consequences which would follow
from construing it the one way or the other.”
As such, the governing factor is the meaning and intent of the
Legislature, which cannot merely be gathered from the words used
in statute, but are based on variety of other circumstances and
considerations. In the judgment of ‘Khub Chand and Others Vs.
12
State of Rajasthan and Others , this Court observed as under:
-
“…. The term “shall” in its ordinary significance is
mandatory and the court shall ordinarily give that
interpretation to that term unless such an
interpretation leads to some absurd or inconvenient
consequence or be at variance with the intent of the
legislature, to be collected from other parts of the
Act. The construction of the said expression
depends on the provisions of a particular Act, the
setting in which the expression appears, the object
for which the direction is given, the consequences
that would flow from the infringement of the
direction and such other considerations.”
28. Hence, taking clue from the above referred judgments and
principles of the statutory interpretation, the intent of WBPT Act
and the circumstances wherein, the words ‘shall’ and ‘may’ have
been used in the same Section at different places, is required to be
adverted. As referred above in paragraphs 22, 23 and 24, it is
12
AIR 1967 SC 1074
23
apparent that whenever the words ‘payment’ or ‘deposit’ of rent
(disputed or undisputed) have been used, the tenant has been cast
with an obligation to deposit such rent within the specified time by
using the word ‘shall’ therein. In case of disputed rent, the tenant
is also required to file an application along with such deposit. The
legislative intent behind using the word ‘shall’ is to ensure that in
case the tenant who is in occupation of premises defaults in
payment of rent due to some inadvertence or fault, on ground of
which the eviction is sought by the landlord, then on service of the
summons, to prevent his defence from getting struck-off, the
tenant must comply with the twin pre-requisites. Section 7(1)
provides that the tenant shall pay to landlord or deposit all arrears
of rent, while the textual setup of first part of sub-section (2) of
Section 7 is that the tenant shall within the time specified, ‘pay’ or
‘deposit’ the amount of rent as admitted as due by him. Indeed, it
is true that in the latter part of sub-section (2) of Section 7, the
word ‘shall’ has again been used in the context of deciding the
application for determination of the rent, stating therein that
‘ tenant shall within one month of the date of such order, pay to the
landlord the amount so specified in the order’. Therefore, in the
latter part, the word ‘tenant shall’ would be referable for payment
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of the amount to the landlord so specified in the order, and in the
said interpretive context, the extension of time is based on the
discretion of the Civil Judge only once, which may not exceed
beyond two months. Thus, the proviso appended therein would
apply only to a case where the amount specified in the order after
determination was not paid within the period as specified therein.
Consequently, by virtue of the proviso, in the latter part, the word
‘shall’ would intend only to the time period prescribed in the order,
and it would not include the time period for initial period as
specified under Section 7(1)(a) and (b) and the former part of
Section 7(2).
29. In addition, Section 7(1) and first part of sub-section (2) of
Section 7 are comparable, both requiring deposit/pay
admitted/undisputed amount of rent. However, Section 7(2) casts
an additional obligation on the tenant to file an application for
determination for rent along with such deposit within the specified
time frame. The Legislature in its wisdom did not provide for any
extension of time for payment or deposit under Section 7(1),
making it clear that no such extension was intended in the
corresponding part in Section 7(2). Since the deposit and
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application are to be made together by the tenant mandatorily
within a specific time, in our considered view, extension of time as
given in proviso to Section 7(2) is not applicable to either.
Therefore, the proviso can only be construed to permit extension in
payment of amount so specified in order of determination passed
by the Civil Judge as envisaged in the latter part of sub-section (2)
of Section 7. Stated differently, the word ‘may’ used in the proviso
of Section 7(2) would only relate to extension of time, which is a
discretion vested with the Civil Judge and it would not construe
any other meaning. Moreover, it can be said that since in sub-
section (3) of Section 7, the consequence of non-compliance has
been specified, therefore, use of the word ‘shall’ in Sections 7(1)(a),
7(1)(b) and 7(2) is a mandatory compliance for the tenant, failing
which, his defence against eviction shall be struck off.
30. In the case of Debasish Paul (supra), the suit was filed for
eviction by landlord. On entering appearance, applications under
Sections 7(1) and 7(2) of the WBPT Act were filed with a delay of 10
months without any application under Section 5 of the Limitation
Act. The trial Court rejected the said applications because they
were not filed within the statutory time. In revision, the High Court
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set-aside the order of the trial Court and granted liberty to the
tenant for filing applications along with application under Section
5 of the Limitation Act, 1963, explaining the sufficient cause. When
the matter reached this Court in appeal, this Court had specifically
opined that if lessor time period has been specified for limitation in
the WBPT Act, then the provisions of the Limitation Act, 1963
cannot be used to extend the same and set-aside the order of High
Court while sustaining the order of the trial Court.
31. Learned counsel appearing on behalf of the appellant made a
strenuous attempt relying upon the observations made in
paragraphs 17, 18 and 19 of the judgment rendered in Debasish
Paul (supra), wherein the Court has referred to the judgment of
Bijay Kumar (supra). In this regard, paragraphs 17, 18 and 19 are
relevant and are reproduced below as thus:-
“17. We are of the view that a combined reading
of the two statutes would suggest that while the
Limitation Act may be generally applicable to the
proceedings under the Tenancy Act, the restricted
proviso under Section 7 of the said Act, providing a
time period beyond which no extension can be
granted, has to be applicable. The proviso is after
sub-section (2) of Section 7 but sub-section (2) of
Section 7 in turn refers to sub-section (1) implying
the application of the proviso to sub-section (1) too.
18. There is also a larger context in this behalf as
the Tenancy Acts provide for certain protections to
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the tenants beyond the contractual rights. Thus, the
provisions must be strictly adhered to. The
proceedings initiated on account of non- payment of
rent have to be dealt with in that manner as a
tenant cannot occupy the premises and then not
pay for it. This is so even if there is a dispute about
the rent. The tenant is, thus, required to deposit all
arrears of rent where there is no dispute on the
admitted amount of rent and even in case of a
dispute. The needful has to be done within the time
stipulated and actually should accompany the
application filed under sub- sections (1) & (2)
of Section 7 of the said Act. The proviso only gives
liberty to extend the time once by period not
exceeding two months.
19. The respondent neither paid the rent, nor
deposited the rent by moving the application nor
deposited it within the extended time as stipulated
in the proviso. The mere allegation of absence of
correct legal advice cannot come to the aid of the
respondent as, if such a plea was to be accepted it
would give a complete licence to a tenant to occupy
premises without payment of rent and then claim
that he was not correctly advised. If the tenant
engages an advocate and abides by his advice,
then the legal consequences of not doing what is
required to be done, must flow. ”
32. In the said context, if we see the intent of legislature as
discussed and relying upon two cases of three-Judge Bench of this
Court, we intend to explain that Section 7 of the WBPT Act
prescribes when a tenant can get the benefit of protection against
eviction. The opening word of sub-section (1) i.e., ‘on a suit being
instituted by the landlord for eviction’ makes it clear that in case
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the tenant defaults in payment of rent and the suit is brought as
specified in the WBPT Act, then on deposit/payment of admitted
rent, an opportunity ought to be provided to get the benefit of
protection against eviction. Therefore, for availing such benefit,
some pre-requisites are there, which is of deposit of the rent, either
disputed or undisputed as admitted, within the specified time. In
case, the rent is disputed, the tenant has to mandatorily file an
application, by virtue of word ‘shall’ used to such extent either in
Section 7(1)(a)(b)(c) or first part of Section 7(2). However, in the
latter part of Section 7(2), which is for payment of amount on
determination by the Civil Judge within the time as specified after
compliance of the pre-deposit and on filing an application for
determination within the specified time, such payment has to be
made by the tenant within one month of date of order passed by
Civil Judge. The proviso refers to extension of time with an intent
to grant one more opportunity to the tenant after determination of
rent for deposit.
33. At this juncture, we also deem it relevant to refer sub-section
(3) of Section 7, wherein it is specified that if tenant fails to deposit
or pay any amount referred in sub-section (1) or sub-section (2)
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within the time specified therein or within such extended time as
may be granted by the Court, his defence against delivery of
possession shall be struck out. So it deals with the following
contingencies; first is of Section 7(1)(a)(b)(c), second is of former
part of Section 7(2) and third is of latter part of Section 7(2) and in
default of either of the situations, the Judge shall order the defence
against delivery of possession to be struck out and shall proceed
with the hearing of the suit specifying the consequences of failure
to do any of the three situations. While using the word extended
time in sub-section (3), the word shall has been used, therefore,
this would also be referable to the provision which leads to the
conclusion that in case the tenant fails to deposit the determined
amount within the time specified or within the extended time. In
that contingency the order of striking out of defence be passed and
suit be proceeded for hearing. As explained from above discussion,
we are constrained to say that the arguments as advanced by the
learned counsel for the appellant relying upon the paragraphs 17,
18 and 19 of the judgment in Debasish Paul (supra) are not
germane, hence repelled.
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34. After perusal of the facts of the case at hand, the summons
were served on appellant on 29.09.2022. From the next date, i.e.,
30.09.2022 to 27.10.2022, Durga Puja vacation in Kolkata started.
As per the provisions of the General Clauses Act, limitation period
of thirty days would start from the date of receiving of the summons
and it would complete on 28.10.2022, prior to completion of Durga
Puja vacation. Therefore, the rent was required to be deposited
within thirty days along with an application immediately on
reopening of Courts, but application was filed with a delay of 17
days on 14.11.2022. Therefore, due to non-compliance of deposit
and filing of an application within the prescribed period of 30 days,
the consequence as specified in sub-section (3) of Section 7 shall
follow. The benefit of proviso with respect to the extended time
would not be available to the appellant prior to rent determination
stage.
35. As concluded above, the applicability of Limitation Act is
subject to provisions of the WBPT Act. Meaning thereby, if the time
limit has been prescribed to do some act it cannot be extended by
aid of proviso of sub-section (2) of Section 7. As such, the
inescapable conclusion in the facts and the law as discussed
31
hereinabove, is that the compliance as required to be done by the
tenant in Section 7(1)(a)(b)(c) and first part of Section 7(2) regarding
deposit of rent and filing an application within the same time is
mandatory. In default, they cannot avail the benefit of the proviso
of sub-section (2) which only relates to the payment of determined
amount of rent and whereby the Civil Judge may exercise the
discretion to grant extension of time.
36. Accordingly, and in view of the above discussions, the present
appeal of the tenant fails and is dismissed while maintaining the
order passed by the learned Small Causes Court and the High
Court in above terms. Pending application(s), if any, shall stand
disposed of.
…..…………………………..J.
[J.K. MAHESHWARI]
…..…………………………..J.
[ARAVIND KUMAR]
New Delhi;
th
13 August 2025.
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