Singh & Ors Vs. Anand Kumar Sharma & Ors  Insc 32 (28 January 2003)
S.B. Sinha & Ar. Lakshmanan. Khare, Cji.
appellants herein are the tenants. The landlord brought a suit for eviction of
the tenant, inter alia on the ground of personal necessity as well as for
default in payment of rent. The trial court dismissed the suit.
the first appellate court allowed the appeal of landlord and thus the suit on
the ground of default was decreed. The second appeal, by the tenants, was
dismissed. The High Court held that mere acceptance of delayed rent by the
Landlord did not amount to waiver of the right which was accrued to him under
the Act and also the tenant has committed default in payment of the rent. It is
against the said judgment, the tenants preferred present appeal by means of a
special leave petition.
the matter came up before a Bench of this Court, the Bench was of the view that
as the case may require consideration of the correctness of the view taken by a
Full Bench of Patna High Court in Raj Kumar Prasad vs. Uchit Narain Singh [AIR
1980 Patna (FB) 242] in view two decisions of this Court in Gowali Charan vs. Surendra
Kumar Khandani and others (1987 Suppl. SCC 578) and Satyanarain Kandu vs. Smt. Hemlata
and others (1996 PLR 110 SC) both by two-Judge Bench and as such has referred
the matter to a Bench of three Ld. Judges . It is in this way, this matter has
come up before us. Learned Counsel for the appellant urged that view taken by
the High Court is in conflict with the two decisions of this Court and
therefore the Judgment under challenge deserved to be set aside.
not find any merit in the argument for the reasons stated hereinafter.
11(1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act reads
Eviction of tenants (1) Notwithstanding anything contained in my contract or
law to the contrary but subject to the provisions of the Industrial disputes
Act, 1947 (Act XIV of 1947), and to those Section 18, where a tenant is in
possession of any building, he shall not be liable to eviction therefrom except
in execution of a decree passed by the Court on one or more of the following
Where the amount of two months rents, lawfully payable by the tenant and due
from him is in arrears by not having been paid within the time fixed by
contract, or in the absence of such contract, by the last day of the month next
following that for which the rent is payable or by not having been validly
remitted or deposited in accordance with Section 16." The provisions of
the said Act would clearly show that unlike Rent Control Statutes of other
States, the expression 'wilful default' or 'habitual default' has not been used
therein. The words are 'is in arrears'. In the event, rent for two months is
not paid a cause of action arises. The statute mandates that the rent should be
paid within the time fixed by the contract and in absence thereof by the last
date of the month next following. The obligation on the part of the tenant to
pay rent in the manner laid down under the Act, being a statutory one, he must
comply therewith strictly. The statute, therefore, in other words, prescribes
the period within which the rent must be rendered to the landlord by a tenant.
When the statute lays down the period during which the rent is required to be
paid or deposited, the same is required to be complied with.
in E. Palanisamy vs. Palanisamy (dead) by Lrs. and others (2003 (1) SCC 123), 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
not only a beneficial enactment for the tenant but also for the benefit of the
landlord. (See Shri Lakshmi Venkateshwara Enterprises Pvt. Ltd. vs. Syeda Vajuninissa
Begum (Smt.) and others 1994 (2) SCC 671).
there is another aspect of the matter which cannot be lost sight of. It is a
well settled principle that if a thing is required to be 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 page111 it is stated as follows:
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." It is in the aforementioned
backdrop the decisions of this Court relied upon by Mr. Upadhyay are required
to be considered.
Charan vs. Surendra Kumar Khandani and others (1987 Suppl. SCC 578), this Court
did not lay down any law within the meaning of Article 141 of the Constitution
of India. The judgment does not contain any reason. It does not set out any
fact nor did it take notice of any precedent. It is difficult to ascertain as
to on what grounds this Court observed:
regard to the fact that the entire rent for the period in question from
January-February, 1967 to January-February, 1968 had been paid to the
plaintiff, we do not think that the High Court was justified in holding that
the plea of wilful default has been established entitling the plaintiff to a
decree for eviction under Section 11(1)(c) of the Bihar Buildings (Lease, Rent
and Eviction) Control Act, 1982." This decision in our opinion does not
lay down the correct law and must be over-ruled.
Kandu vs. Smt. Hemlata and others (1996 PLR 110 SC), this Court passed an order
presumably in exercise of its jurisdiction under Article 142 of Constitution of
India. In that case, it was categorically held that the default had taken place
but the same was held to be merely a technical one. If a cause of action arose
for the landlord to file a suit for eviction against the tenant, such a cause
of action cannot be held to be non-existent only because, in the opinion of
this Court, the default was technical one. The said decision also does not lay
down the correct view of the law and must be over- ruled.
therefore, are of the opinion that the High Court has rightly held that by
reason of the said two decisions, the Full Bench decision of the High Court
cannot be said to have been over-ruled.
C.A. No. 5077/1998, which we have decided today, we have held that where a
statute empowers the Court to extend time or further time when a tenant fails
to deposit rent within the stipulated time, only in such cases, the Court
possesses power to extend time and in no other cases.
aforesaid reasons, the appeal is dismissed. However, there shall be no orders
as to costs.