J.L. Varandani
Vs. Smt. Ashalata Mukherjee [1990] INSC 218 (3 August 1990)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Verma, Jagdish Saran (J) Punchhi,
M.M.
CITATION:
1990 SCR (3) 610 1990 SCC (4) 40 JT 1990 (3) 365 1990 SCALE (2)164
ACT:
West
Bengal Premises
Tenancy Act, 1956: Sections 17(2), (2A), (2B), (3) and (4).
Rent
Control--Default in payment of rent--Suit for eviction-- Benefit of protection
against eviction to the tenant under Section 17(4)Deposit of rent in compliance
with Court's order under Sections 17(2) and 17(2A)--Condition precedent--Non
striking off defence by the Court under section 17(3) for failure to deposit
rent within the speci- fied time--Whether leads to presumption that time was
ex- tended and delay condoned.
HEAD NOTE:
The
respondent-landlady filed a suit for eviction of the appellanttenant on the
ground of default in payment of rent.
The
appellant deposited the rent and made an application under section 17(2) of the
West Bengal Premises Tenancy Act, 1956. The Trial Court determined the rent
payable and di- rected deposit of the arrears of rent. The suit was subse- quently
compromised.
The
appellant again committed a default in payment of rent and the respondent filed
another suit for eviction. The appellant filed petition under section 17(2) and
(2A), disputing the amount of rent and also seeking permission to deposit rent
by installments. The Trial Court decided the rent payable and directed the
appellant to deposit the arrears of rent in monthly installments by the 15th of
each month. Thereupon the appellant-tenant claimed protection under section
17(4) which was resisted by the landlady on the ground that (i) the protection
cannot be granted as per the proviso to section 17(4), since he has already
been granted relief once in the earlier suit, and (ii) Appel- lant's
non-compliance with the Court's order in depositing the rent disentitled him
from claiming relief under section 17(4).
The
Trial Court decreed the respondent's suit and the first appellate Court as well
as the High Court confirmed the same by dismissing the appeals preferred by the
appel- lant.
611 In
the appeal to this Court it was contended on behalf of the appellant that since
the follow-up action of the Court under section 17(3) viz. striking off the defence
has not been ordered, it should be presumed that the delay in depositing the
rent was condoned thereby entitling the appellant to relief under section
17(4).
Dismissing
the appeal, this Court,
HELD:
The mere fact that the Court has not passed an order striking off the defence
as contemplated under Section 17(3) because of the tenant's failure to deposit
within the time specified in the order passed under Section 17(2) and 17(2A),
does not necessarily lead to a presumption that the time was extended. On the
other hand Section 17(2B) which is a mandatory provision lays down that 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 in sub-section (1). [615H; 616C] In the
instant case no application for extension of time was made by the appellant.
Therefore, in the absence of such application it cannot be contended that the
Court is deemed to have condoned the delay. [616G] Since deposit of rent as per
Court's order under Section 17(2) and (2A) is the condition precedent for
seeking relief under section 17(4) the appellant who has not fulfilled the same
cannot claim the said relief. The orders of the Court below are therefore
confirmed. [616H]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 671 of 1985.
From
the Judgment and Order dated 24th August, 1984 of the Calcutta High Court in
Appeal from Appellate Decree No. 263 of 1979.
N.S. Nesargi
and Dr. Meera Agarwal for the Appellant.
Rajan Mahapatra
and Rathin Das for the Respondents.
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. The matter
arises under the West Bengal Premises Tenancy Act, 1956 ('Act' for short).
The
appellant is the tenant occupying the premises belonging to the respondent 612
on a monthly rent of Rs.475. The respondent landlady filed a Suit No. T.S.
84/73 on the ground of default of rent for the period from May to August, 1973.
The appellant deposited the rent and made an application under Section 17(2) of
the Act.
The
trial court vide its order dated 27.2.74 held that the rent payable is only
Rs.450 per month and directed the appellant to deposit the balance of arrears
of rent within 15 days. At this stage a compromise memo was filed and the suit
was compromised in terms of the compromise memo. In the memo it was mentioned
that the default was of the first instance and that there would be no decree
for khas posses- sion. It appears the appellant again committed default in
payment of rent from June to December, 1975 (both months inclusive). The
respondent landlady filed Title Suit No. 3/76 after giving notice for eviction.
In that suit the appellant filed a petition under Section 17(2) and Section
17(2A) of the Act. By Order No. 26 dated 23.3.77 the trial court decided that
the rent payable was Rs.475 per month and the appellant was asked to deposit
the arrears at the rate of Rs.3 15 per month by the 15th of each month
commencing from April, 1977. The appellant contested the suit and filed a
written statement claiming benefit under Section 17(4) of the Act pleading that
it was the first default. The respond- ent landlady contested the same stating
that no such relief can be granted as per the proviso to the Section since such
a relief was already granted once and that at any rate the appellant did not
comply with the order while making the deposit of the arrears by 15th of each
month and on that ground also no relief can be granted under Section 17(4).
The
trial court decreed the suit and the first appellate court as well as the High
Court dismissed the appeals pre- ferred by the appellant.
In
this appeal firstly it is contended that though there was delay in paying the
installments as per Order dated 23.3.77 passed under Sections 17(2) and 17(2A)
the Court did not order striking off the defence as provided under Section
17(3) and therefore the delay must be deemed to have been condoned and
consequently it must be held that the appellant made the deposits as required
by sub-sections (2) and (2A) of Section 17 and hence he is entitled to claim
relief under Section 17 (4). The second contention is that the default which is
the subject matter of Title Suit No. 3/76 should be treated as the first
default inasmuch as the relief granted in Title Suit No. 84/73 in respect of
the default for the period from May to August, 1973 was not one under Section
17(4) since the suit was decreed by way of compromise.
When
this matter came up before another Bench of this Court consisting of two Hon'ble
Judges, in support of the second contention, 613 reliance was placed on Jagan Nath
v. Ram Kishan Das & Anr., [1985] 2 SCR 388, (a decision of three-Judges)
where a similar provision in the Delhi Rent Control Act, 1958 was considered in
a case where the earlier suit was withdrawn.
The
Bench felt that the provision was construed in a narrow and technical sense and
referred this matter to a Bench of three Judges and that is how this matter has
come up before us.
All
the three courts below have held that the appellant did not make the deposits
before 15th day of each month as per the order dated 23.3.77 passed under
Section 17(2) and Section 17(2A). Unless such a deposit is duly made no relief
can be granted under Section 17(4) of the Act. At this stage it becomes
relevant to refer to the provisions of Section 17. Section 17 reads as under:
"S.
17. When a tenant can get the benefit of protection against eviction--(1) On a
suit or proceeding being insti- tuted by the landlord on any of the grounds
referred to in Section 13, the tenant shall, subject to the provisions of
sub-section (2) within one month of the service of the writ of summons on him
or where he appears in the suit or pro- ceeding without the writ of summons
being served on him, within one month of his appearance deposit in court or
with the Controller or pay to the landlord an amount calculated at the rate of
rent at which it was last paid, for the period for which the tenant 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 together with interest
on such amount calculated at the rate of eight and one-third per cent, per
annum from the date when any such amount was payable up to the date of deposit,
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.
(2) If
in any suit or proceeding referred to in subsection (1) there is any dispute as
to the amount of rent payable by the tenant, the tenant shall within the time
specified in sub-section (-1), deposit in court the amount admitted by him to
be due from him together with an applica- tion to the Court 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 such
application, the Court shall-- 614 (a) having regard to the rate at which rent
was last paid, and the period for which default may have been made, by the
tenant, make, as soon as possible within a period not ex- ceeding one year, a
preliminary order, pending final deci- sion of the dispute, specifying the
amount, if any, due from the tenant and thereupon the tenant shall, within one
month of the date of such preliminary order, deposit in court or pay to the
landlord the amount so specified in the prelimi- nary order; and (b) having
regard to the provisions of this Act, make, as soon after the preliminary order
as possible, a final order determining the rate of rent and the amount to be
deposited in Court or paid to the landlord and either fixing the time within
which the amount shall be deposited or paid or, as the case may be, directing
that the amount already deposited or paid be adjusted in such manner and within
such time as may be specified in the order.
(2A)
Notwithstanding anything contained in subsec- tion (1) or sub-section (2), on
the application of the tenant, the Court may, by order,-- (a) extend the time
specified in sub-section (I) or sub- section (2) for the deposit or payment of
any amount re- ferred to therein;
(b)
having regard to the circumstances of the tenant as also of the landlord and
the total sum inclusive or interest required to be deposited or paid under
subsection (1) on account of default in the payment of rent, permit the tenant
to deposit or pay such sum in such installments and by such dates as the Court
may fix;
Provided
that where payment is permitted by in- stallments such sum shall include all
amounts, calculated at the rate of rent for the period of default including the
period subsequent thereto upto the end of the month previous to that in which
the order under this sub-section is to be made with interest on any such amount
calculated at the rate 615 specified in sub-section (1) from the date when such
amount was payable upto the date of such order.
(2B)
No application for extension of time for the deposit or payment of any amount
under clause (a) of subsec- tion (2A) shall be entertained unless it is made
before the expiry of the time specified therefore in sub-section (1) or
sub-section (2), and no application for permission to pay in installment under
clause (b) or sub-section (2A) shall be entertained unless it' is made before
the expiry of the time specified in sub-section (1) for the deposit or payment
of the amount due on account of default in the payment of rent.
(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 (2A), or fails to deposit or
pay any installment permitted under clause (b) of sub-section (2A) within the
time fixed therefore, 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 re- quired of sub-section (1), sub-section
(2) or sub-section (2A) 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 land- lord:
Provided
that a tenant shall not be entitled to any relief under this sub-section if,
having obtained such relief once in respect of the premises, he has again made
default in the payment of rent for four months within a period of twelve
months." The learned counsel for the appellant submits that assuming that
there was delay in making the deposit of installments of the rent as per the
said order, the follow-up action by the Court as contemplated under Section
17(3) namely strik- ing off the defence has not been ordered and therefore it
should be presumed that the delay was condoned or deemed to have been condoned.
We are unable to agree with this submis- sion of the learned counsel for the
appellant. As already 616 mentioned, the appellant filed petition under
Sections 17(2) and 17(2A) pending the present suit disputing the amount of rent
and also seeking permission to deposit the rent by way of installments. The
rent was held to be Rs.475 per month and the same was directed by the Court to
be paid by monthly installments before 15th of each month but the appellant did
not make the deposits duly. Admittedly no application was made for extension of
time. Section 17(2) provides that if in any suit there is dispute as to the
amount of rent pay- able the tenant within the time specified shall deposit in
court the amount admitted by him to be due from him with an application for
determination of rent. Section 17(2A) pro- vides for extension of the specified
time and also to depos- it the rent by way of installment under the orders of
the Court. Section 17(2B) lays down that no application for extension of time
shall be entertained unless it is made before the expiry of the specified time
under sub-section(1) or sub-section (2) and it further lays down that no applica-
tion for permission to pay in installments under clause (b) of sub-section (2A)
shall be entertained unless it is made before the expiry of the time specified.
Section 17(3), on which reliance is placed by the appellant lays down that if a
tenant fails to deposit, or pay any amount referred to in sub-section (1) or
sub-section (2)' within the time speci- fied therein or within such extended
time as may be allowed under clause (a) of sub-section (2A), or fails to
deposit or pay any installment permitted under clause (b) of sub-sec- tion
(2A), the Court shall order the defence against deliv- ery of possession to be
struck out shall proceed with the hearing of the suit. We have already noted
that no applica- tion for extension of time was made. The mere fact that the
court has not passed an order striking off the defence as contemplated under Section
17(3) because of the tenant's failure to deposit within the time specified in
the order passed under Sections 17(2) and 17(2A) does not necessarily lead to a
presumption that the time was extended. On the other hand Section (2B) which is
a mandatory provision laid down that 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
in sub-section (1). There- fore in the absence of such application it be
contended that the Court is deemed to have condoned the delay. That being the
position it must be held that the appellant tenant to make the deposit of the
rent as per Order No. 26 dated 25, 3.77 passed under Section 17(2) and 17(2A). Since
such a deposit is the condition precedent for seeking relief under Section
17(4) the appellant who has not fulfilled the same cannot claim the said
relief. On this ground alone the orders of the courts below have to be
confirmed. In this view of the matter we do not propose to go into the 617
second contention in this appeal. It may be decided in any other appropriate
case where the question directly arises.
The premises
in question is in Calcutta City where accommo- dation problem is very acute. Therefore the
appellant is given time till 31st March, 1991 to vacate the premises on filing
the usual undertaking within three weeks from today.
The
appeal is accordingly dismissed. In the circumstances of the case there will be
no order as to costs.
T.N.A.
Appeal dis- missed.
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