Full Judgment Text
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CASE NO.:
Appeal (civil) 5077 of 1998
PETITIONER:
Nasiruddin and Ors.
RESPONDENT:
Sita Ram Agarwal
DATE OF JUDGMENT: 28/01/2003
BENCH:
CJI, S.B. Sinha & AR. Lakshmanan.
JUDGMENT:
JUDGMENT
As regards applicability of Section 5 of the Limitation Act, 1963 in
the matter of default in deposit of rent as also interpretation of the word
’shall’ occurring in the Rajasthan Premises (Control of Rent & Eviction)
Act, 1950 (hereinafter referred to ’the Act’, for the sake of brevity), a
Division Bench of this Court by an order dated 21.3.2002 referred the matter
to a three Judge Bench observing :
"Looking to the importance of the questions
and the conflicting views taken in the judgments of
this Court, we deem it proper that the case is heard
by a Bench of three Judges."
That is how the matter is before us.
Before adverting to the aforementioned questions, the factual matrix
involved in the matter may be noticed. The appellant herein is the landlord
in respect of the suit premises and the respondent is a tenant therein.
Allegedly, the respondent did not pay rent for the period 1.8.1986 to
31.1.1987 wherefor upon service of the legal notice, a suit for possession
and arrears of rent was filed which was marked as Civil Suit No.824 of
1993.
The learned Trial Judge in terms of the provisions contained in
Section 13(3) of the Act determined the provisional rent @ Rs.80/- per
month and by an order dated 9.9.1991 directed the respondent to deposit the
arrears as also current rent in court. Admittedly, the respondent did not
deposit the same within the period specified therein. The appellant herein
filed an application purported to be under Section 13(5) of the Act;
whereafter on or about 9.11.1993 the respondent filed an application for
condonation of delay. By reason of an order dated 20.1.1994, the said
application for condonation of delay was dismissed, inter alia, on the ground
that the same was not filed within time. A revision application was
thereafter filed by the respondent questioning the legality or validity of the
said order, inter alia, on the ground that there is no law barring filing of an
application for condonation of delay after expiry of the period specified for
deposit of rent.
It appears that a Full Bench of the Rajasthan High Court in Gopal
Dass & others vs. Nathulal Baraya [AIR 1983 Raj. 222] had held that an
application under Section 5 of the Limitation Act in the matter of deposit of
rent in terms of Section 13(4) of the Act was maintainable. The said
decision was rendered having regard to Rajasthan Premises (Control of Rent
& Eviction) (Amendment) Act, 1975, in terms whereof Section 13-A was
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inserted whereby and whereunder the court was obligated to determine the
amount of arrears of rent up to the date of the order as also the amount of
interest thereon at the rate of 6% per annum and cost of the suit allowable to
the landlord and direct the tenant to pay the amount so determined within
such time, not exceeding ninety days as may be fixed by the court and on
such payment being made within the time fixed as aforesaid, the proceedings
were to be disposed of as if the tenant has not committed any default.
A learned Single Judge of the High Court at the hearing of the
revision application filed by the respondent was, however, of the view that
as the Full Bench in Gopal Dass’s case (supra) was concerned with
interpretation of Section 13-A(b) of the Act; the question as regards
applicability of Section 5 of the Limitation Act in the matter arising under
Section 13(4) of the said Act requires consideration by a larger Bench. The
learned Single Judge was further of the view that the decision of the Full
Bench in Gopal Dass’s case (supra) required reconsideration also on the
question as to whether the court has any power to extend the time beyond
the period prescribed under Section 13(4) of the Act having regard to the
fact that the said decision based on various judgments of this Court relating
to different Rent Control statutes of various States which were not in pari
materia with the provisions of the Act.
Pursuant to or in furtherance of the said observations of the learned
single Judge, a Full Bench of five Judges was constituted. By reason of the
impugned judgment dated 17.12.1997, three Hon’ble Judges of the High
Court held that Section 5 of the Limitation Act is applicable where there is
default in deposit of arrears of rent within specified period whereas two
other members of the Bench held to the contrary.
The Full Bench was further of the view that since the applicability of
the Indian Limitation Act, 1963 is not expressly excluded by reason of the
provisions of the Act, Section 5 of the Limitation Act, 1963 would be
applicable in a case where the tenant could not deposit the rent within the
time pursuant to the order passed under Section 13(3) of the Act. The Full
Bench also held that the word "shall" has to be interpreted as "may" and it is
in the discretion of the Court to condone the delay in default of payment/
deposit of rent within specified period.
In that view of the matter, the order rejecting the application under
Section 5 of the Limitation Act was set aside and the revision petition filed
by the respondent was allowed. It is against the said judgment, the
appellants have preferred this appeal.
Two questions which arise for our consideration are, firstly, that
whether the matter stands covered by the decision of this Court in M/s. B.P.
Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Anr. [(1987) 2 SCC
407]; and, secondly, whether the provisions of Section 5 of the Limitation
Act, 1963 is applicable where there is a default in depositing the rent within
stipulated time by the tenant.
Section 13(1)(a) of the Act enables a landlord to sue for a decree of
eviction in the event a tenant has neither paid nor tendered the amount of
rent due from him for six months. In terms of sub-section (3) of Section 13
which was substituted by Section 8(i) of the Rajasthan Act No.14 of 1976 it
is obligatory on the court to provisionally determine the amount of rent
wherefor no application is required to be filed. Sub-sections (4) and (5) of
the said Act which are relevant for this appeal read thus :-
"(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
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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).
(5). If a tenant fails to deposit or pay any
amount referred to in sub-section (4), on the date
or within the time specified therein, the court shall
order the defence against eviction to be struck out
and shall proceed with the hearing of the suit."
A bare perusal of the aforementioned provisions would show that in
terms of sub-section (4) of Section 13, a tenant is required to deposit the
amount of rent determined by the Court under sub-section (3) within fifteen
days of the date of determination or within such further time not exceeding
three months, as may be extended by the court.
It is not in dispute that by reason of 1976 Amendment, the following
was specifically inserted :-
"Within such further time not exceeding 3 months
as may be extended by the Court or the words" or
within such further time not exceeding 15 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)"
The word ’shall’, which is ordinarily imperative in nature, has been
used in sub-section (4) of Section 13. The power of the court has also been
limited to the extent that it can extend time for such deposit not exceeding
three months and so far as the deposit of monthly rent is concerned, by
fifteen days. The court’s power, therefore, is restricted. In case tenant
deposits the provisional rent as determined by the Court within stipulated
period the tenant is relieved by the eviction decree.
In the aforementioned backdrop, the decision of this Court in M/s B.P.
Khemka’s case (supra) may be noticed.
M/s. B.P. Khemka (supra) arose out of the West Bengal Premises
Tenancy Act, 1956 (in short ’the West Bengal Act’). In the said case the
tenant committed default in payment of arrears of rent and the landlord
brought a suit for eviction on the ground of default. While the suit was
pending, the West Bengal Premises Tenancy (Amendment) Ordinance No. 6
of 1967, which was replaced by the West Bengal Premises Tenancy
(Amendment) Act 30 of 1969 came to be promulgated with effect from
August 26, 1967. The Act gave a retrospective effect to the amendments by
providing that the amendments made by Section 2 of the Ordinance shall
have effect in respect of all suits including appeals which were pending at
the date of commencement of the Ordinance. The amendments inter alia
enabled tenants who were in default to apply to the court and pay the arrears
of rent in instalments and thereby avert their eviction. In pursuance thereof,
the tenant deposited the rent. However, he subsequently committed default
in paying monthly rent. Consequently, the defence was struck off on the
ground that in paying the rent for the months of September, 1968 and March
1969, there had been a delay of 44 days and 6 days respectively, which was
in contravention of Section 17(1) of the West Bengal Act.
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In this context sub-sections (2A), (2B), (3) and (4) of Section 17 of
the West Bengal Act may be noticed which read as under:
"(2A) Notwithstanding anything contained in sub-
section (1) or sub-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) xxx xxx xxx xxx
(2B) No application for extension of time for the
deposit or payment of any amount under clause (a)
of sub-section (2A) shall be entertained unless it is
made before the expiry of the time specified
therefor in sub-section (1) or sub-section (2);"
"(3) If a 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 allowed
under clause (a) of sub-section (2-A), or fails to
deposit or pay any instalment permitted under
clause (b) of sub-section (2-A) within the time
fixed therefor, the court shall order the defence
against delivery of possession to be struck out and
shall proceed with the hearing of the suit.
(4) If a tenant makes deposit or payment as
required by sub-section (1), sub-section (2), or
sub-section (2-A) no decree or order for delivery
of possession of the premises to the landlord on the
ground of default in payment of rent by the tenant
shall be made by the court but the court may allow
such costs as it may deem fit to the landlord."
This Court in M/s. B.P. Khemka’s case (supra) while interpreting the
provisions of sub-section (4) held that the proviso makes it clear that if the
subsequent default is for a period of 4 months within a period of 12 months,
the tenant can claim relief under the sub-section once again. Since the
default was less than 40 days, this Court held that under the said proviso, the
delay could be condoned.
In terms of clause (a) of sub-section (2A) of Section 17 of the West
Bengal Premises Tenancy Act, 1956 requisite power to extend the time for
deposit of rent on an application made by the tenant is conferred in the court
in relation whereto there does not exist any restriction.
It is beyond any cavil that the question as to whether the provision is
directory or mandatory would depend upon the language employed therein.
[See Union of India and Others vs. Filip Tiago De Gama of Vedem Vasco
De Gama [AIR 1990 SC 981 = (1989) Suppl. 2 SCR 336].
This Court in Bhavnagar Unversity v. Palitana Sugar Mill Pvt. Ltd. &
Ors. [2002 (9) SCALE 102], has observed :-
"Scope of the legislation on the intention of the
legislature cannot be enlarged when the language
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of the provision is plain and unambiguous. In other
words statutory enactments must ordinarily be
construed according to its plain meaning and no
words shall be added, altered or modified unless it
is plainly necessary to do so to prevent a provision
from being unintelligible, absurd, unreasonable,
unworkable or totally irreconcilable with the rest
of the statute"
[See also M/s Unique Butyle Tube Industries Pvt. Ltd. vs. U.P.
Financial Corporation & Ors. (2002 (9) SCALE 778].
It is also a well-settled principle of law that the decision on an
interpretation of one statute can be followed while interpreting another
provided both the statutes are in pari materia and they deal with identical
scheme.
The High Court relied upon the following decisions dealing with
respectively with the Rent Control Acts of the different States:
i) AIR 1980 SC 587 : 1980 (2) SCC 151 Shyamacharan
Sharma vs. Dharamdas dealing with the M.P.
Accommodation Control Act,
ii) AIR 1980 SC 1664 : 1980 (3) SCC 610 Miss Santosh
Mehta Vs. Om Prakash and Ors. dealing with the Delhi
Rent Control Act.
iii) AIR 1984 SC 1932 : 1984 (3) SCC 111 Ram Murti Vs.
Bholanath and Ors. dealing with the Delhi Rent
Control Act.
iv) AIR 1985 SC 964 : 1985 (3) SCC 53 Ganesh Prasad
Sah Kesri Vs. Lakshi Narain Gupta dealing with the
Bihar Building.
v) AIR 1987 SC 1010 : 1987 (2) SCC 407 B.P. Khemka
Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Ors.
dealing with West Bengal Premises Tenancy Act.
The question, therefore, which would arise for our consideration is as
to whether the respective State Acts on the basis whereupon the impugned
judgments of this Court had been rendered are analogous to the provisions
of the Act or not.
In Shyama Charan Sharma vs. Dharmdas [AIR 1980 SC 587 : (1980)
2 SCC 151], the provisions of the M.P. Accommodation Control Act, 1961
(hereinafter referred to as "the M.P. Act") was in question. Sub-sections (1)
and (6) of Section 13 thereof are as follows :
"(1) On a suit or proceeding being instituted the
landlord on any of the ground referred to in section
12, the tenant shall, within one month of the
service of summons on him or within such further
time as the court may, on an application made to it,
allow in this behalf, deposit in the court to pay to
the landlord an amount calculated at the rate of
rent at which it was paid for which the rent may
have made default including the period subsequent
thereto up to the end of the month previous to that
in which the deposit or payment is made; and shall
thereafter continue to deposit or pay, month by
month, by the 15th of each succeeding month a sum
equivalent to the rent at that rate.
(6) If the tenant fails to deposit or pay any amount
as required by this section the court may order the
defence against eviction to be struck out an shall
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proceed with the hearing of the suit."
(Emphasis mine)
A bare perusal of the said provisions would clearly go to show that by
reason of the provisions of Section 13(1) of the M.P. Act, the Court has been
conferred power to extend the time for deposit of rent to any such further
time, as it may, on an application made to it, allow in this behalf. The power
of the court under the M.P. Act is not restricted. However, discretion
available to the court under the Rajasthan Act, as noticed hereinbefore is
limited. Furthermore, in sub-section (6) of Section 13 of the M.P. Act, the
word ’may’ has been used which is directory; in contra-distinction with the
word ’shall’ employed in the Rajasthan Act.
The M.P. Act provides for the power of the court to extend the time
in the event sufficient cause therefor is shown which is absent in the
Rajasthan Act. Furthermore, in terms thereof once the rent has been
determined, the same has to be deposited within the prescribed period
wherefor there exists no provision for filing an application.
In Miss Santosh Mehta vs. Om Prakash & Ors. [1980 (3) SCR 325 :
(1980) 3 SCC 610] and Ram Murti vs. Bholanath and Others [AIR 1984 SC
1392 : (1984) 3 SCC 111], this Court was concerned with the provision of
Section 15 of the Delhi Rent Control Act, 1958 which is in the following
term :
(1) In any proceeding for the recovery of
possession of any premises on the ground specified
in clause (a) of the proviso to sub-section (1) of
section 14, the controller shall after giving the
parties an opportunity of being heard, make an
order directing the tenant to pay to the landlord or
deposit with the controller within one month of the
date of the order, an amount calculated at the rate
of rent at which it was ast paid for the period for
which the arrears of rent were legally recoverable
from the tenant including the period subsequent
thereto up to the end of the month previous to that
in which payment or deposit is made and to
continue to pay or deposit, month by month by the
15th of each succeeding month a sum equivalent to
the rate of rent.
(3) If in any proceedings referred to in
subsection (1) or subsection (2), there is any
dispute as to the amount of rent payable by the
tenant, the Controller shall, within fifteen days of
the date of first hearing of the proceedings fix an
interim rent in relation to the premises to be paid
or deposited in accordance with the provisions of
subsection (1) or subsection (2), as the case may
be, until the standard rent in relation thereto is
fixed having regard to the provisions of this act,
and the amount of arrears, if any, calculated on the
basis of standard rent shall be paid or deposited by
the tenant within one month of the date on such
further time as the Controller may allow in this
behalf.
(7) If the tenant fails to deposit or pay any
amount as required by this section the court may
order the defence against eviction to be struck out
and shall proceed with the hearing of the
application."
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(Emphasis mine)
Yet again Section 15 of the Delhi Rent Control Act confers power
upon the court to extend the time for deposit of rent to any such period, as it
may in this behalf deem fit. Furthermore, even in sub-section (7) of Section
15 the word ’may’ has been used. We may notice that under sub-section (5)
of Section 13 of the old Act the word ’shall’ has been used and construing
the said provision, this Court in V.K. Verma vs. Radhey Shyam [AIR 1964
SC 1317], noticed :
".the change of words from "the court shall
order the defence against ejectment to be struck
out" to the words "the controller may order the
defence against eviction to be stuck out" is clearly
deliberate modification in law in favour of the
tenant. Under the old act the court had no option
but to strike out the defence if failure to pay or
deposit the rent is proved; under the new act the
controller who takes the place of the court has a
discretion in the matter; so that in proper cases he
may refuse to strike out the defence."
(Emphasis mine)
In Ganesh Prasad Sah Kesri v. Lakshmi Narain Gupta [1985 (3) SCR
825 : (1985) 3 SCC 53], this Court was concerned with interpretation of
Section 11-A of the Bihar Buildings (Lease Rent and Eviction) Control
Act, 1947 (hereinafter referred to ’Bihar Act of 1947’) which was in the
following term :
"11-A. Deposit of rent by tenants in suits for
ejectment If in a suit for recovery of possession
the tenant contests the suit, as regards claim for
ejectment, the landlord may make an application at
any stage of the suit for order on the tenant to
deposit month by month rent at a rate at which it
was last paid and also the arrears of rent, if any;
and the court, after giving an opportunity to the
parties to be heard, may make an order for deposit
of rent at such rate as may be determined month by
month and the arrears of rent, if any, and on failure
of the tenant to deposit the arrears of rent within
fifteen days of the date of the order or the rent at
such rate for any month by the fifteenth day of the
next following month, the court shall order the
defence against ejectment to be struck out and the
tenant to be placed in the same position as if he
had not defended the claim to ejectment. The
landlord may also apply for permission to
withdraw the deposited rent without prejudice to
his right to claim decree for ejectment and the
court may permit him to do so. The court may
further order the recovery of cost of suit and such
other compensation as may be determined by it
from the tenant."
The said provision of the Bihar Act of 1947 did not contain any
negative provision as is there in the present Act. Furthermore, even under
the said provision an application was required to be filed which is not the
case in this appeal. For that reasons the decision in Ganesh Prasad Sah
Kesri (supra) is distinguishable and has no application to the present case.
We may further notice that in Shibu Chandra Dhar Vs. Pasupati Nath
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Auddya [(2002) 3 SCC 617], which also arose out of the West Bengal
Premises Tenancy Act, it was held that under sub-section (2A) of Section 17
of the Act, the Court has a power to extend the period for depositing the rent
in the event of default by the tenant to deposit the rent within a stipulated
time. This Court further held that if a Court has no power to extend the
time, then in cases of small default beyond the reason of the tenant, the time
cannot be extended.
(Emphasis mine)
It is interesting to note that in Ganpat Ladha vs. Shashikant Vishnu
Shinde [1978 (3) SCR 198 : 1978 (2) SCC 573], this Court while
interpreting similar provisions occurring in Section 12(3)(a) of the Bombay
Rent, Hotel, Lodging Houses Rates Control Act, 1947 (hereinafter referred
to as "the Bombay Rent Act") held :
"Section 12(3)(b) does not create any discretionary
jurisdiction in the Court, it provides protection to
the tenant on certain conditions and these
conditions have to be strictly observed by the
tenant who seeks the benefit of the section. If the
statutory provisions do not go far enough to relieve
the hardship of the tenant the remedy lies with the
legislature, it is not in the hands of the Court."
Thus under the Bombay Rent Act only on certain grounds the Court can
exercise its discretionary power and not on other grounds.
Yet again in Mrs. Manju Choudhary and another vs. Dulal Kumar
Chandra [AIR 1988 SC 602], this Court interpreting the provision of
Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control
Ordinance 1982 being Ordinance No.63 of 1982 (hereinafter referred to as
’the Bihar Rent Ordinance, 1982’), held :
"Section 13 of the Act stipulates that if in a suit for
recovery of possession of any building the tenant
contests the suit as regards the claim for ejectment,
the landlord may move an application at any stage
of the suit for an order on the tenant to deposit rent
month by month at the rate at which it was last
paid and also subject to the law of limitation, the
arrears of rent, if any, and the court after giving an
opportunity to the parties to be heard may make an
order to deposit the rent month by month at such
rates as to be determined and the arrears, both
before and after the institution of the suit, if any,
and thereafter provides "on failure of the tenant to
deposit the arrears of rent within 15 days of the
next following month the court shall order the
defence against the ejectment to be struck off".
Therefore, there is a duty cast on the court to strike
out the defence if there is a failure of the tenant to
deposit arrears of rent within 15 days. In this case,
both the trial court as well as the High Court have
found that there was, in fact, a delay to pay the
arrears of rent within 15 days. In that view of the
matter it is not possible to interference with the
order of the High Court."
In the said case there was delay of about four to five days in
depositing the rent allegedly on the ground of bank strike but the defence
against the eviction was struck off.
In a case where the statutory provision is plain and unambiguous, the
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court shall not interpret the same in a different manner, only because of
harsh consequences arising therefrom. In E. Palanisamy vs. Palanisamy
(Dead) by Lrs. and Others [(2003) 1 SCC 122], a Division Bench of this
Court observed :
".The rent legislation is normally intended for
the benefit of the tenants. At the same time, it is
well settled that the benefits conferred on the
tenants through the relevant statutes can be
enjoyed only on the basis of strict compliance with
the statutory provisions. Equitable consideration
has no place in such matters"
It is also pertinent to note that the Rent Control Act is a welfare
legislation not entirely beneficial enactment for the tenant but also for the
benefit of landlord. [See: Shri Lakshmi Venkateshwara Enterprises Pvt.
Ltd. vs. Syeda Vajhiunnissa Begum (Smt.) and Others [(1994) 2 SCC 671].
In that view of the matter, balance has to be struck while interpreting the
provisions of the Rent Act.
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 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 re-write or recast legislation.
It is also necessary to determine that there exists a 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 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.
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, Statutory Construction,
3rd edition, 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.
At p.111 it is stated as follows :
"As a corollary of the rule outlined above,
the fact that no consequences of non-compliance
are stated in the statute, has been considered as a
factor tending towards a directory construction.
But this is only an element to be considered, and
is by no means conclusive."
Thus, on analysis of the aforesaid two decisions we find that wherever
the special Act provides for extension of time or condonation of default, the
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Court possesses the power therefor, but where the statute does not provide
either for extension of time or to condone the default in depositing the rent
within the stipulated period, the Court does not have the power to do so.
In that view of the matter it must be held that in absence of such
provisions in the present Act the Court did not have the power to either
extend the period to deposit the rent or to condone the default in depositing
the rent.
Coming to the second question, we are of the view that Section 5 of
the Limitation Act, 1963 is not applicable where there is a default in
depositing the rent by the tenant under Section 13(4) of the Act.
It is true that Rajasthan Act does not expressly exclude the application
of Limitation Act. But Section 5 in its terms is not applicable to wherever
there is a default in depositing the rent by the tenant.
Section 5 of the Limitation Act reads thus:
"5. Extension of prescribed period in certain
cases. Any appeal or any application, other than
an application under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908, may be
admitted after the prescribed period, if the
appellant or the applicant satisfied the court that he
had sufficient cause for not preferring the appeal or
making the application within such period."
On perusal of the said Section it is evident that the question of
application of Section 5 would arise where any appeal or any application
may be admitted after the prescribed period, if the appellant or the applicant
satisfies the court that he had sufficient cause for not making the appeal or
application within such period. Section 13(4) provides that in a suit for
eviction on the ground set forth in clause (a) of sub-section (1), the tenant
shall on the first date of hearing or on or before such date, the Court may on
the application fixed in this behalf or within such time the tenant shall
deposit in court or pay to the landlord in court as determined under sub-
section (3) from the date of such determination or within such further time
not exceeding three months as may be extended by the Court. Thus, sub-
section (4) itself provides for limitation of a specific period within which the
deposit has to be made, which cannot be exceeding three months as extended
by this Court.
The matter may be examined from another angle. The deposit by the
tenant within 15 days is not an application within the meaning of Section 5
of the Limitation Act, 1963. Since the deposit does not require any
application, therefore, the provisions of Section 5 cannot be extended where
the default takes place in complying with an order under sub-section (4) of
Section 13 of the Act.
The provisions of Section 5 of the Limitation Act must be construed
having regard to Section 3 thereof. For filing an application after the expiry
of the period prescribed under the Limitation Act or any other special statute
a cause of action must arise. Compliance of an order passed by a Court of
Law in terms of a statutory provision does not give rise to a cause of action.
Failure to comply with an order passed by a Court of Law instant
consequences are provided for under the statute. The court can condone the
default only when the statute confers such a power on the Court and not
otherwise. In that view of the matter we have no other option but to hold
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that Section 5 of the Limitation Act, 1963 has no application in the instant
case.
In M/s Jayanta Cycle and Motor Mart, Kanpur vs. Assistant
Commissioner, Sales Tax [AIR 1969 All. 200], V.G. Oak, CJ observed :
"Delay may be condoned if a party makes delay in
filing an appeal or moving an application, but no
such situation arose in the present case. The
petitioner made delay in depositing the admitted
tax. The Appeal itself was filed within time. The
Assistant Commissioner rightly held that there was
no room to give the appellant the benefit of
Section 5 of Indian Limitation Act."
Pathak, J.,(as he then was) observed :
"Section 5 is not attracted when the question arises
whether the delay in depositing the admitted tax
should be condoned. It seems to me that the
application made by the Petitioner for condonation
of delay in depositing the entire amount of
admitted tax is not maintainable under Section 5 of
Limitation Act."
In Hukumdev Narain Yadav vs. Lalit Narain Mishra [ 1974 (3) SCR
31 ], P. Jaganmohan Reddy, J. held that Section 5 of the Limitation Act does
not govern an election petition. The said decision has been followed in
Kulamani Kar and others vs. Orissa Land Reforms Tribunal-cum-
Subordinate Judge, Cuttack and Others [AIR 1983 Orissa 63].
In The Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs. M/s
Parson Tools and Plants, Kanpur [AIR 1975 SC 1039 = (1975) 4 SCC 22],
this Court upon referring to various decisions observed :
"Thus the principle that emerges is that if the
Legislature in a special statute prescribes a certain
period of limitation for filing a particular
application thereunder and provides in clear terms
that such period on sufficient cause being shown,
may be extended, in the maximum, only upto a
specified time-limit and no further, then the
tribunal concerned has no jurisdiction to treat
within limitation, an application filed before it
beyond such maximum time-limit specified in the
statute, by excluding the time spent in prosecuting
in good faith and due diligence any prior
proceedings on the analogy of Section 14(2) of the
Limitation Act."
In State of West Bengal and others vs. Kartick Chandra Das and
others [(1996) 5 SCC 342], this Court observed :
" In consequence, by operation of Section 29(2)
read with Section 3 of the Limitation Act,
limitation stands prescribed as a special law under
Section 19 of the Contempt of Courts Act and
limitation in filing Letters Patent appeal stands
attracted. In consequence, Sections 4 to 24 of the
Limitation Act stands attracted to Letters Patent
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appeal insofar as and to the extent to which they
are not expressly excluded either by special or
local law. Since the rules made on the appellate
side, either for entertaining the appeals under
clause 15 of the Letters Patent or appeals arising
under the contempt of courts, had not expressly
excluded, Section 5 of the Limitation Act becomes
applicable. We hold that Section 5 to the
Limitation Act does apply to the appeals filed
against the order of the learned Single Judge for
the enforcement by way of a contempt. The High
Court, therefore, was not right in holding that
Section 5 of the Limitation Act does not apply.
The delay stands condoned. Since the High Court
had not dealt with the matter on merits, we decline
of express any opinion on merits. The case stands
remitted to the Division Bench for decision on
merits."
Furthermore, for constituting an application within the meaning of the
said provision, there should be some request. [See Prem Raj vs. Ram
Charan, 1974 (3) SCR 494 : AIR 1974 SC 968].
Mr. Gupta, appearing on behalf of the respondent, however, placed
reliance upon a decision of this Court in Mukri Gopalan vs. Cheppilat
Puthanpurayil Aboobacker [(1995) 5 SCC 5]. Therein this Court was
concerned with extension of period of limitation in a case wherein an appeal
was to be preferred before an appellate authority under the Kerala Buildings
(Lease and Rent Control) Act, 1965. As for preferring an appeal a period of
limitation is prescribed, it was held that Section 5 of the Act was applicable
and, therefore, the said decision is of no help to the respondent.
Similarly in Shantilal M. Bhayani vs. Shanti Bai [(1995) Supp.(4)
SCC 578], this Court was concerned with the question as to whether the
provision of Section 5 of the Act would be applicable to an appeal filed
before the appellate authority functioning under the T.N. Buildings (Lease
and Rent Control) Act, 1960.
The question which arose for consideration therein was whether the
appellate authority was a court or a persona designata. Having regard to the
provisions of contained in sub-section (2) of Section 29, it was held that the
Limitation Act,1963 applies. Such is not the case here and, therefore, the
said decision is distinguishable.
For the aforesaid reasons, we are of the view that the judgment of the
High Court cannot be sustained. We, accordingly, set aside the judgment
under challenge.
The appeal is allowed. There shall be no order as to costs.