1
CORRECTED
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7849 OF 2019
(ARISING OUT OF SLP (C) NO.24280 OF 2019)
(DIARY NO. 22352 OF 2017)
| BIJAY KUMAR SINGH & OTHERS | .....APPELLANT(S) |
|---|
| VERSUS | |
| AMIT KUMAR CHAMARIYA & ANR. | .....RESPONDENT(S) |
WITH
CIVIL APPEAL NO. 7850 OF 2019
(ARISING OUT OF SLP (C) NO.24284 OF 2019)
(DIARY NO. 22504 OF 2017)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by the
High Court of Calcutta on 13.05.2016 in two separate eviction
petitions filed by the respondent herein against two tenants.
2. Learned Single Judge has set aside the order dated 10.08.2011
whereby an application filed by the appellant under Section 7(2) of
1
the West Bengal Premises Tenancy Act, 1997 was allowed.
1 For short the “Act”
2
3. The brief facts leading to the present appeals are that the
respondent filed an eviction petition against the appellants on the
ground of non-payment of arrears of rent in respect of two shops
alleging that initially, Sudama Singh was tenant on the monthly
rent of Rs.45/- and Rs.25/- per month but now the rent payable is
Rs.306/- and Rs.174/- per month. It is the case of the respondent
that a Receiver was appointed in Money Execution Case No.
23/1961 and the said Receiver was discharged vide order dated
10.02.2009. The respondent demanded arrears of rent but since
the amount of arrears at the rate of Rs.306/- per month was not
paid, the petition for eviction was filed. The appellant did not
deposit any rent but filed an application to determine the arrears
of rent asserting that they have paid monthly rent up to the month
of June 1993 to the Receiver. However, the Receiver has not
informed the appellants as to the person authorised to collect
rent, therefore, they could not pay it.
4. The learned Trial Court allowed the application, determined the
arrears 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 Court as it chose to follow the order passed in CO 1941
of 2013, though another Coordinate Bench had taken a contrary
view in CO 55 of 2014. Learned Single Judge found that in the
order passed by Coordinate Bench in CO 55/2014, no lis was
3
decided and that no principle was laid down which may give light
to the learned Trial Court to decide the pending litigation.
Therefore, the learned Single Judge, decided the matter on merits
rather than referring it to the larger Bench for decision.
5. In this background, the argument of the learned counsel
appearing for the appellant is that the High Court has not
maintained judicial decorum and should have referred the matter
to the larger Bench to decide the scope and ambit of Section 7(2)
of the Act. We find that since a short question of law arises for
consideration, therefore, without going into the question as to
whether learned Single Judge should have referred the matter to
the larger Bench or not, the question to be decided by this Court
is to bring certainty in respect of scope of Section 7 of the Act.
6. Learned counsel for the appellant contends that the provisions of
Section 7(2) of the Act are pari-materia to Section 17(2) of West
2
Bengal Premises Tenancy Act, 1956 which was the subject matter
of consideration in an earlier judgment of this Court reported as
3
B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick .
Learned counsel for the appellant argued that the Limitation Act,
1963 would be applicable to seek condonation of delay in filing an
application under Section 7(2) of the Act. The learned Counsel also
placed reliance upon judgments reported as Shibu Chandra
2 for short the “1956 Act”
3 (1987) 2 SCC 407
4
4
Dhar v. Pasupati Nath Auddya and Gaya Prasad Kar v.
5
Subrata Kumar Banerjee
7. On the other hand, learned counsel for the respondent submitted
that the judgments in B.P. Khemka , Shibhu Chandra Dhar and
Gaya Prasad 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 starting with a non obstante clause. There is
no such equivalent provision in the Act which was enacted while
repealing the 1956 Act. It is argued that B. P. Khemka has been
considered by a three Judge Bench judgment reported as Arjun
6
Khiamal Makhijani Etc vs Jamnadas C. Tuliani & Ors. Etc
and distinguished the same in view of sub section (2A) of the 1956
Act.
8. In another three Judge Bench judgment reported as Nasiruddin
7
and Ors. vs Sita Ram Agarwal , it was held that in terms of
clause (a) of sub-section (2A) of Section 17 of the 1956 Act, the
requisite power to extend the time for deposit of rent on an
application made by the tenant is without any restriction. It was
further held that the question of application of Section 5 of the
Limitation Act, 1963 would arise, 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) of the
4 (2002) 3 SCC 617
5 (2005) 8 SCC 14(3)
6 ( 1989) 4 SCC 612
7 (2003) 2 SCC 577
5
8
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
provides that the tenant shall on the first date of hearing or, on or
before such date, shall deposit in court or pay to the landlord in
court from the date of such determination the amount so
determined 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 exceed three months as
extended by this Court. 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. It is thus contended
that provisions of the Rajasthan Act are close to the language of
Section 7 of the Act. Therefore, the Limitation Act is not applicable
to seek condonation of delay in filing an application under Section
7(2) of the Act. It was held as under:
| “ | 15. | | B.P. Khemka | | [(1987) 2 SCC 407 : AIR 1987 SC 1010] |
|---|
| 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 6 of 1967, which was | | | | | |
| replaced by the West Bengal Premises Tenancy | | | | | |
| (Amendment) Act 30 of 1969 came to be promulgated with | | | | | |
| efef ct from 26-8-1967. The Act gave a retrospective efef ct | | | | | |
8 for short the “Rajasthan Act”.
6
| 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. | | | | | | | | |
| | | xxx xxx xxx | | | | | |
| | | | | | | | |
| 17. | | This Court in | | | B.P. Khemka case | | | [(1987) 2 SCC 407 : AIR |
| 1987 SC 1010] 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.” | | | | | | | | |
| | | | | | | | |
9. The reliance is placed upon Monoj Lal Seal v. Octavious Tea &
9 10
Industries Ltd , E. Palanisamy v. Palanisamy , and Balwant
| provisions can be said to be directory or mandatory | . |
|---|
counsel for the respondent referred to various orders passed by
the Calcutta High Court, taking a view that non-deposit of arrears
of rent will result in dismissal of the application under Section 7 of
the Act.
| 10. | | We do not fni d any error in the order passed by the High Court. |
|---|
9 (2015) 8 SCC 640
10 (2003) 1 SCC 123
11 (2003) 3 SCC 433
7
One of the grounds of the eviction in terms of the Section 6(1)(b)
of the Act is default in payment of rent for three months within the
period of twelve months, or for three rental periods within the
period of three years where the rent is not payable monthly. It is
Section 7 of the Act which provides for an opportunity to the
tenant to make the payment of 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:
“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.
(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
subsection, 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
8
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 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 subsection 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.”
11. The Act has repealed the 1956 Act which had almost similar
provisions as contained in Section 7(1) and 7(2) of the Act, but the
material distinction is of sub sections (2A) and (2B) inserted by
West Bengal Premises Tenancy (Amendment) Ordinance No. IV of
1967. This was replaced by West Bengal Premises Tenancy
(Amendment) Act 30 of 1969 with effect from 26.08.1967, giving
retrospective effect to the amendments which were made
applicable to all suits, including appeals, which were pending
9
before commencement of the Ordinance. Sub sections (2A) and
(2B) so inserted read as thus:
“( 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) having regard to the circumstances of the tenant as also of the<br>landlord and the total sum inclusive of interest required to be<br>deposited or paid under sub-section (1) on account of default in the<br>payment of rent, permit the tenant to deposit or pay such sum in<br>such instalments and by such dates as the Court may fix: | | | | | |
| Provided that where payment is permitted by instalments such sum<br>shall include all amounts calculated at the rate of rent for the period<br>or default including the period subsequent thereto up to the end of<br>the month previous to that in which the order under this sub-section<br>is to be made with interest on any such amount calculated at the<br>rate specified in sub-section (1) from the date when such amount<br>was payable up to the date of such order. | | | | | |
| (2B) No application for extension of time for the deposit or payment<br>of any amount under clause (a) of sub-section (2A) shall be<br>entertained unless it is made before the expiry of the time specified<br>therefor in sub-section (1) or sub-section (2), and no application for<br>permission to pay in instalment under clause (b) of sub-section (2A)<br>shall be entertained unless it is made before the expiry of the time<br>specified in sub-section (1) for the deposit or payment of the amount<br>due on account of default in the payment of rent.” | | | | | |
| | | | | | |
| 12. This Court, while considering the above provisions of the<br>1956 Act in B.P. Khemka held as under: | | | | | | |
| “11. Since the Ordinance came to be replaced long after | | | | | |
| | 11. | | Since the Ordinance came to be replaced long after | | |
| by the Act, Section 5 of the Ordinance was not reproduced | | | | | |
| in the Act because it had served its purpose. What is, | | | | | |
| however, of signifci ance is that Section 5 of the Ordinance | | | | | |
| entitled the appellant to fli e an application under Section | | | | | |
| 17(2-A)( | | | | b | ), in the suit fli ed by the fri st respondent which |
| was pending then. Unfortunately, the High Court has looked | | | | | |
| only into the Act and not the Ordinance and that is how | | | | | |
| Section 5 of the Ordinance has escaped its notice. When | | | | | |
| Section 17(2-A) and Section 5 of the Ordinance are read | | | | | |
| conjointly it may be seen that it was the intention of the | | | | | |
| legislature to extend the benefti of subsection (2-A) to all | | | | | |
| pending suits and appeals irrespective of the fact whether | | | | | |
10
| the time limit of one month prescribed under Section 17(1) | | | | | | | | |
|---|
| had expired or not. No other construction is possible | | | | | | | | |
| because any other construction would have the effect of | | | | | | | | |
| rendering otiose Section 5 of the Ordinance….. | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| 12. | If it was the intention of the legislature to restrict the | | | | | | | |
| benefti s given under Section 17(2-A) to only those tenants | | | | | | | | |
| against whom suits had been fli ed within one month prior | | | | | | | | |
| to the promulgation of the Ordinance, there was no | | | | | | | | |
| necessity to give retrospectivity to sub-section (2-A) under | | | | | | | | |
| Section 5 of the Ordinance. It has, therefore, to be held that | | | | | | | | |
| all tenants against whom suits or appeals were pending on | | | | | | | | |
| the date of the promulgation of the Ordinance were entitled | | | | | | | | |
| to seek the benefti of Section 17(2-A) by fli ing an | | | | | | | | |
| application within one month from the date of promulgation | | | | | | | | |
| of the Ordinance. The High Court was, therefore, in error in | | | | | | | | |
| holding that the application under Section 17(2-A)( | | | | | | | a | ) was |
| itself not maintainable. If the High Court's view is to be | | | | | | | | |
| accepted it would then amount to asking the appellant to | | | | | | | | |
| perform the impossible i.e. asking the appellant to flie an | | | | | | | | |
| application under Section 17(2-A)( | | b | ) which came into force | | | | | |
| on August 26, 1967 within one month from April 6, 1967 | | | | | | | | |
| when the suit summons was served. Therefore the fri st | | | | | | | | |
| question has to be answered in favour of the appellant. The | | | | | | | | |
| resultant position would then be that insofar as the | | | | | | | | |
| payment of arrears for the period ending February 29, 1968 | | | | | | | | |
| is concerned, the appellant had complied with the orders of | | | | | | | | |
| the court under Section 17(2-A)( | | | b | ) and was therefore | | | | |
| entitled to claim the benefti of Section 17(4).” | | | | | | | | |
| | | | | | | | | |
| 13. | | The said judgment was followed in | Shibu Chandra Dhar |
|---|
| considering the 1956 Act. The judgment in | Gaya Prasad Kar | is |
|---|
also interpreting the provisions of the 1956 Act.
| 14. | | However, another three Judge Bench judgment in | Arjun Khiamal |
|---|
| while examining provisions of the Bombay Rents, Hotel and<br>Lodging House Rates Control Act,194712 considered the judgment<br>reported as Vatan Mal v. Kailash Nath13, dealing with the<br>Rajasthan Act, held that Section 13(a) of the Rajasthan Act was to<br>confer benefits on all tenants against whom suits for eviction on | | | |
| | confer benefits on all tenants against whom suits for eviction on | |
| while | | examining provisions of the | Bombay | Rents, Hotel and |
|---|
| Rajasthan | Act, held | that Section 13(a) of the Rajasthan Act was to |
|---|
12 for short the “Bombay Act”
13 (1989) 3 SCC 79
11
| the ground of default of payment of rent were pending. Such<br>judgment was not found to be attracted in view of mandatory<br>provisions contained in Section 12(3)(a) of the Bombay Act. The<br>judgment in B.P. Khemka was found not to be of any assistance<br>for the same reason. | the ground of default of payment of rent were pending. Such | | | | | | | | | | | | |
|---|
| | | | | | | | | | | | | |
| 15. This Court in Nasiruddin also considered the question as to<br>whether provisions of a statute being directory or mandatory<br>would depend upon the language implied therein, and referred to<br>a judgment reported as Union of India v. Philip Tiago De<br>Gama14. This Court also examined the judgment in<br>Shyamcharan Sharma v. Dharamdas15, wherein it was found<br>that there is no restriction in M.P. Accommodation Control Act,<br>196116 to condone delay to deposit the arrears of rent, whereas,<br>the discretion available to the court under the Rajasthan Act is<br>limited. For the same reason, it was found that in terms of the<br>Delhi Rent Control Act, 195817, the court has power to extend the<br>time to deposit arrears of rent. This Court held as under: | | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | “31. We may further notice that in Shibu Chandra | | | | | | | | | | | |
| | | 31. | We may further notice that in | | | | | | | | Shibu Chandra | |
| | Dhar | | v. | | Pasupati Nath Auddya | | [(2002) 3 SCC 617] which | | | | | |
| | also arose out of the West Bengal Premises Tenancy Act, it | | | | | | | | | | | |
| | was held that under sub-section (2-A) 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 | | | | | | | | | | | |
| judgment in | B.P. Khemka | was found not to be of any assistance |
|---|
14 ( 1990) 1 SCC 277
15 (1980) 2 SCC 151
16 For short the “M.P. Act”
17 For short the “Delhi Act”
12
| cases of small default beyond the reason of the tenant, the<br>time cannot be extended.<br>32. It is interesting to note that in Ganpat<br>Ladha v. Sashikant Vishnu Shinde [(1978) 2 SCC 573 :<br>(1978) 3 SCR 198] this Court while interpreting similar<br>provisions occurring in Section 12(3)(a) of the Bombay<br>Rents, Hotel, Lodging House Rates Control Act, 1947<br>(hereinafter referred to as “the Bombay Rent Act”) held:<br>(SCC p. 580, para 11)<br>“Section 12(3)(b) does not create any discretionary<br>jurisdiction in the Court. It provides protection to the<br>tenant on certain conditions and these conditions have<br>to be strictly observed by the tenant who seeks the<br>benefti of the section. If the statutory provisions do not<br>go far enough to relieve the hardship of the tenant the<br>remedy lies with the legislature. It is not in the hands of<br>courts.”<br>Thus under the Bombay Rent Act only on certain grounds<br>the court can exercise its discretionary power and not on<br>other grounds.” | | cases of small default beyond the reason of the tenant, the | | | | | |
|---|
| | time cannot be extended. | | | | | |
| | 32. It is interesting to note that in Ganpat<br>Ladha v. Sashikant Vishnu Shinde [(1978) 2 SCC 573 :<br>(1978) 3 SCR 198] this Court while interpreting similar<br>provisions occurring in Section 12(3)(a) of the Bombay<br>Rents, Hotel, Lodging House Rates Control Act, 1947<br>(hereinafter referred to as “the Bombay Rent Act”) held:<br>(SCC p. 580, para 11) | | | | | |
| | | | | | | |
| | | “Section 12(3)(b) does not create any discretionary<br>jurisdiction in the Court. It provides protection to the<br>tenant on certain conditions and these conditions have<br>to be strictly observed by the tenant who seeks the<br>benefti of the section. If the statutory provisions do not<br>go far enough to relieve the hardship of the tenant the<br>remedy lies with the legislature. It is not in the hands of<br>courts.” | | | | |
| | Thus under the Bombay Rent Act only on certain grounds<br>the court can exercise its discretionary power and not on<br>other grounds.” | | | | | |
| | | | | | | |
| 16. While examining as to when the provision of a statute is to be<br>treated as directory or mandatory, this Court held in Nasiruddin<br>case that if an act is required to be performed by a private person<br>within a specified time, the same would ordinarily be mandatory<br>but when a public functionary is required to perform a public<br>function within a time-frame, the same will be held to be directory<br>unless the consequences thereof are specified. It was held as<br>under: | | | | | | | |
| 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 | | | | | |
| treated as directory or mandatory, this Court held in | Nasiruddin |
|---|
| case | that if an act is required to be performed by a private person |
|---|
| unless the consequences thereof are specified. | It was held as |
|---|
13
| necessary to determine that there exists a presumption | | | | | | | | | |
|---|
| that the legislature has not used any superful ous 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 fni ding 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 | | | | | | | | | |
| specifei d 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 specifei d. | | | | | | | | | |
| 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 ofcfi ers. 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. | | | | | | | | | |
| | | | | xxx xxx xxx | | | | |
| | | | | | | | | |
| 40. | | | | Thus, on analysis of the aforesaid two decisions we fni d | | | | | |
| that wherever the special Act provides for extension of time | | | | | | | | | |
| or condonation of default, the 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. | | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| 41. | | | | 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.” | | | | | | | | | |
| | | | | | | | | |
14
| 17. Further, a three Judge Bench of this Court in a judgment reported<br>as Union of India and Others v. A. K. Pandey18 held as under: | | | | | |
|---|
| | | | | |
| “15. | | The principle seems to be fairly well settled that | | |
| prohibitive or negative words are ordinarily indicative | | | | |
| of mandatory nature of the provision; although not | | | | |
| conclusive. The Court has to examine carefully the | | | | |
| purpose of such provision and the consequences that | | | | |
| may follow from non-observance thereof. If the context | | | | |
| does not show nor demands otherwise, the text of a | | | | |
| statutory provision couched in a negative form | | | | |
| ordinarily has to be read in the form of command. | | | | |
| When the word “shall” is followed by prohibitive or | | | | |
| negative words, the legislative intention of making the | | | | |
| provision absolute, peremptory and imperative | | | | |
| becomes 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 accused being | | | | |
| charged for which he is to be tried and his arraignment | | | | |
| and interval time in Rule 34 must be read as absolute. | | | | |
| There is a purpose behind this provision: that purpose | | | | |
| is that before the accused is called upon for trial, he | | | | |
| must be given adequate time to give a 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 his witnesses. He may even decide not | | | | |
| to defend the charge(s) but before he decides his line | | | | |
| of action, he must be given clear ninety-six hours.” | | | | |
| The judgment in | B.P. | | Khemka | is in respect of a statute giving |
|---|
power to condone delay without any fetters. The amendments
| carried with retrospective effect | 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 of
the amendments, the tenant deposited the rent. However, he
subsequently committed default in paying monthly rent.
18 (2009) 10 SCC 552
15
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. This Court 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.
Provisions of M.P. Act and of Delhi Act are also similar.
| 19. | | Sub section (1) of Section 7 of the Act relieves the tenant from |
|---|
the ejectment on the ground of non-payment of arrears of rent if
he pays to the landlord or deposits it with the Civil Judge all
arrears of rent, calculated at the rate at which it was last paid
and up to 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. 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.
20. Therefore, sub section (1) deals with the payment of arrears of
rent when there is no dispute about the rate of rent or the period
of arrears of rent. Sub section (2) of the Act comes into play if
there is dispute as to the amount of rent including the period of
16
arrears payable by the tenant. In that situation, the tenant is
obliged to apply within time as specified in sub section (1) that is
within one month of the receipt of summons or within one month
of appearance before the court to deposit with the Civil Judge the
amount admitted by him to be due. The tenant is also required to
file an application for determination of the rent payable. Such
deposit is not to be accepted, unless it is accompanied by an
application for determination of rent payable. Therefore, sub
section (2) of the Act requires two things, deposit of arrears of
rent at the rate admitted to be due by the tenant along with an
application for determination of the rent payable. If the two
conditions are satisfied then only the Court having regard to the
rate at which rent was last paid and for which tenant is in default,
may make an order specifying the amount due. After such a
determination the tenant is granted one month’s time to pay to
the landlord the amount which was specified. The proviso of the
Act, limits the discretion of the court to extend the time for
deposit of arrears of rent. The extension can be provided once
and not exceeding two months.
21. Sub section (3) provides for consequences of non-payment of rent
i.e. striking off the defence against the delivery of the possession
and to proceed with the hearing of the suit. Such provision is
materially different from sub sections (2A) and (2B) which was
| being examined by this Court in | B.P. Khemka. | Sub sections (2A) |
|---|
17
and (2B) of Section 17 of 1956 Act confer unfettered power on the
court to extend the period of 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 sub section (2) are
mandatory and required to be scrupulously followed by the tenant,
| if the tenant has to avoid the | eviction | on account of non-payment |
|---|
of arrears of rent under Section 6 of the Act. There is an outer limit
for extension of time to deposit of arrears of rent in terms of the
proviso to sub section (2) of Section 7 of the Act. The
consequences flowing from non-deposit of rent are contemplated
under sub section (3) of Section 7 of the Act. Therefore, if the
tenant fails to deposit admitted arrears of rent within one month
of receipt of summons or within one month of appearance without
summons and also fails to make an application for determination
of the disputed amount of rate of rent and the period of arrears
and the subsequent non-payment on determining of the arrears of
rent, will entail the eviction of the tenant. Section 7 of the Act
provides for a complete mechanism for avoiding eviction on the
| ground of arrears of rent, | provided | that the tenant takes steps as |
|---|
contemplated under sub section (2) of Section 7 of the Act and
deposits the arrears of rent on determination of the disputed
amount. The deposit of rent along with an application for
determination of dispute is a pre-condition 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
18
| 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.
22. In view of the judgment in Nasiruddin , we do not find any error
in the order passed by the learned Single Judge. The Trial Court
shall proceed with the suit in accordance with law. The appeals
are dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 22, 2019.
19
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7849 OF 2019
(ARISING OUT OF SLP (C) NO.24280 OF 2019)
(DIARY NO. 22352 OF 2017)
| BIJAY KUMAR SINGH & OTHERS | .....APPELLANT(S) |
|---|
| VERSUS | |
| AMIT KUMAR CHAMARIYA & OTHERS | .....RESPONDENT(S) |
WITH
CIVIL APPEAL NO. 7850 OF 2019
(ARISING OUT OF SLP (C) NO.24284 OF 2019)
(DIARY NO. 22504 OF 2017)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by the
High Court of Calcutta on 13.05.2016 in two separate eviction
petitions filed by the respondent herein against two tenants.
2. Learned Single Judge has set aside the order dated 10.08.2011
whereby an application filed by the appellant under Section 7(2) of
19
the West Bengal Premises Tenancy Act, 1997 was allowed.
19 For short the “Act”
20
3. The brief facts leading to the present appeals are that the
respondent filed an eviction petition against the appellants on the
ground of non-payment of arrears of rent in respect of two shops
alleging that initially, Sudama Singh was tenant on the monthly
rent of Rs.45/- and Rs.25/- per month but now the rent payable is
Rs.306/- and Rs.174/- per month. It is the case of the respondent
that a Receiver was appointed in Money Execution Case No.
23/1961 and the said Receiver was discharged vide order dated
10.02.2009. The respondent demanded arrears of rent but since
the amount of arrears at the rate of Rs.306/- per month was not
paid, the petition for eviction was filed. The appellant did not
deposit any rent but filed an application to determine the arrears
of rent asserting that they have paid monthly rent up to the month
of June 1993 to the Receiver. However, the Receiver has not
informed the appellants as to the person authorised to collect
rent, therefore, they could not pay it.
4. The learned Trial Court allowed the application, determined the
arrears 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 Court as it chose to follow the order passed in CO 1941
of 2013, though another Coordinate Bench had taken a contrary
view in CO 55 of 2014. Learned Single Judge found that in the
order passed by Coordinate Bench in CO 55/2014, no lis was
21
decided and that no principle was laid down which may give light
to the learned Trial Court to decide the pending litigation.
Therefore, the learned Single Judge, decided the matter on merits
rather than referring it to the larger Bench for decision.
5. In this background, the argument of the learned counsel
appearing for the appellant is that the High Court has not
maintained judicial decorum and should have referred the matter
to the larger Bench to decide the scope and ambit of Section 7(2)
of the Act. We find that since a short question of law arises for
consideration, therefore, without going into the question as to
whether learned Single Judge should have referred the matter to
the larger Bench or not, the question to be decided by this Court
is to bring certainty in respect of scope of Section 7 of the Act.
6. Learned counsel for the appellant contends that the provisions of
Section 7(2) of the Act are pari-materia to Section 17(2) of West
20
Bengal Premises Tenancy Act, 1956 which was the subject matter
of consideration in an earlier judgment of this Court reported as
21
B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick .
Learned counsel for the appellant argued that the Limitation Act,
1963 would be applicable to seek condonation of delay in filing an
application under Section 7(2) of the Act. The learned Counsel also
placed reliance upon judgments reported as Shibu Chandra
20 for short the “1956 Act”
21 (1987) 2 SCC 407
22
22
Dhar v. Pasupati Nath Auddya and Gaya Prasad Kar v.
23
Subrata Kumar Banerjee
7. On the other hand, learned counsel for the respondent submitted
that the judgments in B.P. Khemka , Shibhu Chandra Dhar and
Gaya Prasad 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 starting with a non obstante clause. There is
no such equivalent provision in the Act which was enacted while
repealing the 1956 Act. It is argued that B. P. Khemka has been
considered by a three Judge Bench judgment reported as Arjun
24
Khiamal Makhijani Etc vs Jamnadas C. Tuliani & Ors. Etc
and distinguished the same in view of sub section (2A) of the 1956
Act.
8. In another three Judge Bench judgment reported as Nasiruddin
25
and Ors. vs Sita Ram Agarwal , it was held that in terms of
clause (a) of sub-section (2A) of Section 17 of the 1956 Act, the
requisite power to extend the time for deposit of rent on an
application made by the tenant is without any restriction. It was
further held that the question of application of Section 5 of the
Limitation Act, 1963 would arise, 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) of the
22 (2002) 3 SCC 617
23 (2005) 8 SCC 14(3)
24 ( 1989) 4 SCC 612
25 (2003) 2 SCC 577
23
26
Rajasthan Premises (Control of Rent and Eviction) Act, 1950
provides that the tenant shall on the first date of hearing or, on or
before such date, shall deposit in court or pay to the landlord in
court from the date of such determination the amount so
determined 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 exceed three months as
extended by this Court. 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. It is thus contended
that provisions of the Rajasthan Act are close to the language of
Section 7 of the Act. Therefore, the Limitation Act is not applicable
to seek condonation of delay in filing an application under Section
7(2) of the Act. It was held as under:
| “ | 15. | | B.P. Khemka | | [(1987) 2 SCC 407 : AIR 1987 SC 1010] |
|---|
| 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 6 of 1967, which was | | | | | |
| replaced by the West Bengal Premises Tenancy | | | | | |
| (Amendment) Act 30 of 1969 came to be promulgated with | | | | | |
| efef ct from 26-8-1967. The Act gave a retrospective efef ct | | | | | |
26 for short the “Rajasthan Act”.
24
| 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. | | | | | | | | |
| | | xxx xxx xxx | | | | | |
| | | | | | | | |
| 17. | | This Court in | | | B.P. Khemka case | | | [(1987) 2 SCC 407 : AIR |
| 1987 SC 1010] 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.” | | | | | | | | |
| | | | | | | | |
9. The reliance is placed upon Monoj Lal Seal v. Octavious Tea &
27 28
Industries Ltd , E. Palanisamy v. Palanisamy , and Balwant
| provisions can be said to be directory or mandatory | . |
|---|
counsel for the respondent referred to various orders passed by
the Calcutta High Court, taking a view that non-deposit of arrears
of rent will result in dismissal of the application under Section 7 of
the Act.
| 10. | | We do not fni d any error in the order passed by the High Court. |
|---|
27 (2015) 8 SCC 640
28 (2003) 1 SCC 123
29 (2003) 3 SCC 433
25
One of the grounds of the eviction in terms of the Section 6(1)(b)
of the Act is default in payment of rent for three months within the
period of twelve months, or for three rental periods within the
period of three years where the rent is not payable monthly. It is
Section 7 of the Act which provides for an opportunity to the
tenant to make the payment of 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:
“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.
(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
subsection, 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
26
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 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 subsection 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.”
11. The Act has repealed the 1956 Act which had almost similar
provisions as contained in Section 7(1) and 7(2) of the Act, but the
material distinction is of sub sections (2A) and (2B) inserted by
West Bengal Premises Tenancy (Amendment) Ordinance No. IV of
1967. This was replaced by West Bengal Premises Tenancy
(Amendment) Act 30 of 1969 with effect from 26.08.1967, giving
retrospective effect to the amendments which were made
applicable to all suits, including appeals, which were pending
27
before commencement of the Ordinance. Sub sections (2A) and
(2B) so inserted read as thus:
“( 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) having regard to the circumstances of the tenant as also of the<br>landlord and the total sum inclusive of interest required to be<br>deposited or paid under sub-section (1) on account of default in the<br>payment of rent, permit the tenant to deposit or pay such sum in<br>such instalments and by such dates as the Court may fix: | | | | | |
| Provided that where payment is permitted by instalments such sum<br>shall include all amounts calculated at the rate of rent for the period<br>or default including the period subsequent thereto up to the end of<br>the month previous to that in which the order under this sub-section<br>is to be made with interest on any such amount calculated at the<br>rate specified in sub-section (1) from the date when such amount<br>was payable up to the date of such order. | | | | | |
| (2B) No application for extension of time for the deposit or payment<br>of any amount under clause (a) of sub-section (2A) shall be<br>entertained unless it is made before the expiry of the time specified<br>therefor in sub-section (1) or sub-section (2), and no application for<br>permission to pay in instalment under clause (b) of sub-section (2A)<br>shall be entertained unless it is made before the expiry of the time<br>specified in sub-section (1) for the deposit or payment of the amount<br>due on account of default in the payment of rent.” | | | | | |
| | | | | | |
| 12. This Court, while considering the above provisions of the<br>1956 Act in B.P. Khemka held as under: | | | | | | |
| “11. Since the Ordinance came to be replaced long after | | | | | |
| | 11. | | Since the Ordinance came to be replaced long after | | |
| by the Act, Section 5 of the Ordinance was not reproduced | | | | | |
| in the Act because it had served its purpose. What is, | | | | | |
| however, of signifci ance is that Section 5 of the Ordinance | | | | | |
| entitled the appellant to fli e an application under Section | | | | | |
| 17(2-A)( | | | | b | ), in the suit fli ed by the fri st respondent which |
| was pending then. Unfortunately, the High Court has looked | | | | | |
| only into the Act and not the Ordinance and that is how | | | | | |
| Section 5 of the Ordinance has escaped its notice. When | | | | | |
| Section 17(2-A) and Section 5 of the Ordinance are read | | | | | |
| conjointly it may be seen that it was the intention of the | | | | | |
| legislature to extend the benefti of subsection (2-A) to all | | | | | |
| pending suits and appeals irrespective of the fact whether | | | | | |
28
| the time limit of one month prescribed under Section 17(1) | | | | | | | | |
|---|
| had expired or not. No other construction is possible | | | | | | | | |
| because any other construction would have the effect of | | | | | | | | |
| rendering otiose Section 5 of the Ordinance….. | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| 12. | If it was the intention of the legislature to restrict the | | | | | | | |
| benefti s given under Section 17(2-A) to only those tenants | | | | | | | | |
| against whom suits had been fli ed within one month prior | | | | | | | | |
| to the promulgation of the Ordinance, there was no | | | | | | | | |
| necessity to give retrospectivity to sub-section (2-A) under | | | | | | | | |
| Section 5 of the Ordinance. It has, therefore, to be held that | | | | | | | | |
| all tenants against whom suits or appeals were pending on | | | | | | | | |
| the date of the promulgation of the Ordinance were entitled | | | | | | | | |
| to seek the benefti of Section 17(2-A) by fli ing an | | | | | | | | |
| application within one month from the date of promulgation | | | | | | | | |
| of the Ordinance. The High Court was, therefore, in error in | | | | | | | | |
| holding that the application under Section 17(2-A)( | | | | | | | a | ) was |
| itself not maintainable. If the High Court's view is to be | | | | | | | | |
| accepted it would then amount to asking the appellant to | | | | | | | | |
| perform the impossible i.e. asking the appellant to flie an | | | | | | | | |
| application under Section 17(2-A)( | | b | ) which came into force | | | | | |
| on August 26, 1967 within one month from April 6, 1967 | | | | | | | | |
| when the suit summons was served. Therefore the fri st | | | | | | | | |
| question has to be answered in favour of the appellant. The | | | | | | | | |
| resultant position would then be that insofar as the | | | | | | | | |
| payment of arrears for the period ending February 29, 1968 | | | | | | | | |
| is concerned, the appellant had complied with the orders of | | | | | | | | |
| the court under Section 17(2-A)( | | | b | ) and was therefore | | | | |
| entitled to claim the benefti of Section 17(4).” | | | | | | | | |
| | | | | | | | | |
| 13. | | The said judgment was followed in | Shibu Chandra Dhar |
|---|
| considering the 1956 Act. The judgment in | Gaya Prasad Kar | is |
|---|
also interpreting the provisions of the 1956 Act.
| 14. | | However, another three Judge Bench judgment in | Arjun Khiamal |
|---|
| while examining provisions of the Bombay Rents, Hotel and<br>Lodging House Rates Control Act,194730 considered the judgment<br>reported as Vatan Mal v. Kailash Nath31, dealing with the<br>Rajasthan Act, held that Section 13(a) of the Rajasthan Act was to<br>confer benefits on all tenants against whom suits for eviction on | | | |
| | confer benefits on all tenants against whom suits for eviction on | |
| while | | examining provisions of the | Bombay | Rents, Hotel and |
|---|
| Rajasthan | Act, held | that Section 13(a) of the Rajasthan Act was to |
|---|
30 for short the “Bombay Act”
31 (1989) 3 SCC 79
29
| the ground of default of payment of rent were pending. Such<br>judgment was not found to be attracted in view of mandatory<br>provisions contained in Section 12(3)(a) of the Bombay Act. The<br>judgment in B.P. Khemka was found not to be of any assistance<br>for the same reason. | the ground of default of payment of rent were pending. Such | | | | | | | | | | | | |
|---|
| | | | | | | | | | | | | |
| 15. This Court in Nasiruddin also considered the question as to<br>whether provisions of a statute being directory or mandatory<br>would depend upon the language implied therein, and referred to<br>a judgment reported as Union of India v. Philip Tiago De<br>Gama32. This Court also examined the judgment in<br>Shyamcharan Sharma v. Dharamdas33, wherein it was found<br>that there is no restriction in M.P. Accommodation Control Act,<br>196134 to condone delay to deposit the arrears of rent, whereas,<br>the discretion available to the court under the Rajasthan Act is<br>limited. For the same reason, it was found that in terms of the<br>Delhi Rent Control Act, 195835, the court has power to extend the<br>time to deposit arrears of rent. This Court held as under: | | | | | | | | | | | | | |
| | | | | | | | | | | | | |
| | “31. We may further notice that in Shibu Chandra | | | | | | | | | | | |
| | | 31. | We may further notice that in | | | | | | | | Shibu Chandra | |
| | Dhar | | v. | | Pasupati Nath Auddya | | [(2002) 3 SCC 617] which | | | | | |
| | also arose out of the West Bengal Premises Tenancy Act, it | | | | | | | | | | | |
| | was held that under sub-section (2-A) 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 | | | | | | | | | | | |
| judgment in | B.P. Khemka | was found not to be of any assistance |
|---|
32 ( 1990) 1 SCC 277
33 (1980) 2 SCC 151
34 For short the “M.P. Act”
35 For short the “Delhi Act”
30
| cases of small default beyond the reason of the tenant, the<br>time cannot be extended.<br>32. It is interesting to note that in Ganpat<br>Ladha v. Sashikant Vishnu Shinde [(1978) 2 SCC 573 :<br>(1978) 3 SCR 198] this Court while interpreting similar<br>provisions occurring in Section 12(3)(a) of the Bombay<br>Rents, Hotel, Lodging House Rates Control Act, 1947<br>(hereinafter referred to as “the Bombay Rent Act”) held:<br>(SCC p. 580, para 11)<br>“Section 12(3)(b) does not create any discretionary<br>jurisdiction in the Court. It provides protection to the<br>tenant on certain conditions and these conditions have<br>to be strictly observed by the tenant who seeks the<br>benefti of the section. If the statutory provisions do not<br>go far enough to relieve the hardship of the tenant the<br>remedy lies with the legislature. It is not in the hands of<br>courts.”<br>Thus under the Bombay Rent Act only on certain grounds<br>the court can exercise its discretionary power and not on<br>other grounds.” | | cases of small default beyond the reason of the tenant, the | | | | | |
|---|
| | time cannot be extended. | | | | | |
| | 32. It is interesting to note that in Ganpat<br>Ladha v. Sashikant Vishnu Shinde [(1978) 2 SCC 573 :<br>(1978) 3 SCR 198] this Court while interpreting similar<br>provisions occurring in Section 12(3)(a) of the Bombay<br>Rents, Hotel, Lodging House Rates Control Act, 1947<br>(hereinafter referred to as “the Bombay Rent Act”) held:<br>(SCC p. 580, para 11) | | | | | |
| | | | | | | |
| | | “Section 12(3)(b) does not create any discretionary<br>jurisdiction in the Court. It provides protection to the<br>tenant on certain conditions and these conditions have<br>to be strictly observed by the tenant who seeks the<br>benefti of the section. If the statutory provisions do not<br>go far enough to relieve the hardship of the tenant the<br>remedy lies with the legislature. It is not in the hands of<br>courts.” | | | | |
| | Thus under the Bombay Rent Act only on certain grounds<br>the court can exercise its discretionary power and not on<br>other grounds.” | | | | | |
| | | | | | | |
| 16. While examining as to when the provision of a statute is to be<br>treated as directory or mandatory, this Court held in Nasiruddin<br>case that if an act is required to be performed by a private person<br>within a specified time, the same would ordinarily be mandatory<br>but when a public functionary is required to perform a public<br>function within a time-frame, the same will be held to be directory<br>unless the consequences thereof are specified. It was held as<br>under: | | | | | | | |
| 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 | | | | | |
| treated as directory or mandatory, this Court held in | Nasiruddin |
|---|
| case | that if an act is required to be performed by a private person |
|---|
| unless the consequences thereof are specified. | It was held as |
|---|
31
| necessary to determine that there exists a presumption | | | | | | | | | |
|---|
| that the legislature has not used any superful ous 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 fni ding 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 | | | | | | | | | |
| specifei d 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 specifei d. | | | | | | | | | |
| 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 ofcfi ers. 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. | | | | | | | | | |
| | | | | xxx xxx xxx | | | | |
| | | | | | | | | |
| 40. | | | | Thus, on analysis of the aforesaid two decisions we fni d | | | | | |
| that wherever the special Act provides for extension of time | | | | | | | | | |
| or condonation of default, the 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. | | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |
| 41. | | | | 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.” | | | | | | | | | |
| | | | | | | | | |
32
| 17. Further, a three Judge Bench of this Court in a judgment reported<br>as Union of India and Others v. A. K. Pandey36 held as under: | | | | | |
|---|
| | | | | |
| “15. | | The principle seems to be fairly well settled that | | |
| prohibitive or negative words are ordinarily indicative | | | | |
| of mandatory nature of the provision; although not | | | | |
| conclusive. The Court has to examine carefully the | | | | |
| purpose of such provision and the consequences that | | | | |
| may follow from non-observance thereof. If the context | | | | |
| does not show nor demands otherwise, the text of a | | | | |
| statutory provision couched in a negative form | | | | |
| ordinarily has to be read in the form of command. | | | | |
| When the word “shall” is followed by prohibitive or | | | | |
| negative words, the legislative intention of making the | | | | |
| provision absolute, peremptory and imperative | | | | |
| becomes 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 accused being | | | | |
| charged for which he is to be tried and his arraignment | | | | |
| and interval time in Rule 34 must be read as absolute. | | | | |
| There is a purpose behind this provision: that purpose | | | | |
| is that before the accused is called upon for trial, he | | | | |
| must be given adequate time to give a 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 his witnesses. He may even decide not | | | | |
| to defend the charge(s) but before he decides his line | | | | |
| of action, he must be given clear ninety-six hours.” | | | | |
| The judgment in | B.P. | | Khemka | is in respect of a statute giving |
|---|
power to condone delay without any fetters. The amendments
| carried with retrospective effect | 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 of
the amendments, the tenant deposited the rent. However, he
subsequently committed default in paying monthly rent.
36 (2009) 10 SCC 552
33
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. This Court 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.
Provisions of M.P. Act and of Delhi Act are also similar.
| 19. | | Sub section (1) of Section 7 of the Act relieves the tenant from |
|---|
the ejectment on the ground of non-payment of arrears of rent if
he pays to the landlord or deposits it with the Civil Judge all
arrears of rent, calculated at the rate at which it was last paid
and up to 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. 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.
20. Therefore, sub section (1) deals with the payment of arrears of
rent when there is no dispute about the rate of rent or the period
of arrears of rent. Sub section (2) of the Act comes into play if
there is dispute as to the amount of rent including the period of
34
arrears payable by the tenant. In that situation, the tenant is
obliged to apply within time as specified in sub section (1) that is
within one month of the receipt of summons or within one month
of appearance before the court to deposit with the Civil Judge the
amount admitted by him to be due. The tenant is also required to
file an application for determination of the rent payable. Such
deposit is not to be accepted, unless it is accompanied by an
application for determination of rent payable. Therefore, sub
section (2) of the Act requires two things, deposit of arrears of
rent at the rate admitted to be due by the tenant along with an
application for determination of the rent payable. If the two
conditions are satisfied then only the Court having regard to the
rate at which rent was last paid and for which tenant is in default,
may make an order specifying the amount due. After such a
determination the tenant is granted one month’s time to pay to
the landlord the amount which was specified. The proviso of the
Act, limits the discretion of the court to extend the time for
deposit of arrears of rent. The extension can be provided once
and not exceeding two months.
21. Sub section (3) provides for consequences of non-payment of rent
i.e. striking off the defence against the delivery of the possession
and to proceed with the hearing of the suit. Such provision is
materially different from sub sections (2A) and (2B) which was
| being examined by this Court in | B.P. Khemka. | Sub sections (2A) |
|---|
35
and (2B) of Section 17 of 1956 Act confer unfettered power on the
court to extend the period of 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 sub section (2) are
mandatory and required to be scrupulously followed by the tenant,
| if the tenant has to avoid the | eviction | on account of non-payment |
|---|
of arrears of rent under Section 6 of the Act. There is an outer limit
for extension of time to deposit of arrears of rent in terms of the
proviso to sub section (2) of Section 7 of the Act. The
consequences flowing from non-deposit of rent are contemplated
under sub section (3) of Section 7 of the Act. Therefore, if the
tenant fails to deposit admitted arrears of rent within one month
of receipt of summons or within one month of appearance without
summons and also fails to make an application for determination
of the disputed amount of rate of rent and the period of arrears
and the subsequent non-payment on determining of the arrears of
rent, will entail the eviction of the tenant. Section 7 of the Act
provides for a complete mechanism for avoiding eviction on the
| ground of arrears of rent, | provided | that the tenant takes steps as |
|---|
contemplated under sub section (2) of Section 7 of the Act and
deposits the arrears of rent on determination of the disputed
amount. The deposit of rent along with an application for
determination of dispute is a pre-condition 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
36
| 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.
22. In view of the judgment in Nasiruddin , we do not find any error
in the order passed by the learned Single Judge. The Trial Court
shall proceed with the suit in accordance with law. The appeals
are dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
OCTOBER 22, 2019.
