Gaya Prasad Kar Vs.
Subrata Kumar Banerjee [2005] Insc 527 (3 October 2005)
Dr.Ar Lakshmanan & Altamas
Kabir Altamas Kabir,J.
This appeal pursuant to leave granted is directed against the judgment and
order dated 18.2.2003 passed by a learned single Judge of the Calcutta High
Court in a Civil Revision Application being C.O.No.472 of 2000 wherein the
respondent before us, who was the landlord, had challenged the Order dated
24.1.2000 passed by the learned Civil Judge (Junior Division), 3rd Court at
Howrah in Title Suit No.181 of 1995. By the said order the learned court
disposed of the petition filed under Section 17 (2) and (2A) of the West Bengal
Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act') by the
appellant herein who was the tenant and declaring that the appellant-tenant was
not a defaulter in payment of rent.
The respondent before us claims to be the absolute owner of the premises
situated at Holding No. 252/4, Panchanantala Road, Howrah- 711101, since his
purchase of the property by a registered deed of conveyance dated 16.3.1992.
After attornment, the appellant became the tenant under the respondent in
respect of the suit premises at a rental of Rs.40/- per month according to the
English calendar. According to the respondent-landlord, the appellant-tenant
was a statutory defaulter as he failed and neglected to pay the monthly rents
since the month of March 1994. Since, according to the respondent-landlord, the
suit premises was also reasonably required by him for his own use and occupation
and for the benefit of his dependents and family members, the
respondent-landlord sent a notice to the appellant-tenant under Section 13 (6)
of the Act calling upon the appellant-tenant to quit and vacate the tenanted
premises upon the expiry of the month of March 1995 or upon expiry of the month
of tenancy which would expire after a month from the date of receipt of the
notice. Inasmuch as, in-spite of having received the notice, the
appellant-tenant failed to vacate the suit premises, the respondent-landlord
was compelled to file a suit for eviction against the appellant-tenant, being
Title Suit No 181 of 1995, in the Court of Third Munsif at Howrah, inter alia
praying for a decree of eviction against the appellant-tenant and for delivery
of possession of the suit premises in favour of the respondent-landlord.
The appellant-tenant was served with summons of the suit on 27.5.1995 and
with the leave of the Court he began depositing the monthly rents for the suit
premises in court with effect from the month of July 1995. Prior to the said
period, as will appear from the materials on record, the rent for the month of
March 1994 was tendered by the appellant-tenant to the respondent- landlord on
2nd April 1994 and 25th April 1994 respectively, but the Money Orders were
refused by the respondent-landlord on 9th April 1994 and 29th April 1994. The
appellant-tenant thereafter deposited the rents for the months of March, April
and May 1994 with the Rent Controller, Howrah, and continued to deposit the
rents regularly with the said Rent Controller up to June 1995.
However, by way of caution, after receiving summons of the suit, the
appellant-tenant filed an application under Section 17 (2) and (2A) of the Act
together with an application for condonation of delay under Section 5 of the
Limitation Act. The respondent-landlord filed his objection to the said
application under Section 17 (2) and (2A) denying all the statements made
therein. The appellant-tenant's application under Section 5 of the Limitation
Act was allowed by the learned Civil Judge (Junior Division) on 4.9.1998 and
thereafter the application filed by the appellant-tenant under Section 17 (2)
and (2A) of the Act was taken up for hearing and after a protracted hearing, in
which evidence was led by the parties, the learned Civil Judge (Junior
Division) came to the conclusion that the monthly rents had been tendered by
the appellant-tenant within the time limit prescribed under Section 4 of the
Act, which the respondent-landlord intentionally did not accept, as a result
whereof the appellant-tenant was compelled to deposit the same with the Rent
Controller, Howrah and subsequently with the Court from the month of July 1995.
Aggrieved by the said decision of the learned Civil Judge (Junior Division),
Howrah, the respondent-landlord filed a revision petition before the High
Court at Calcutta under Section 115 of the Code of Civil Procedure and the same
was numbered as C.O.No.472 of 2000. The learned single Judge came to the
finding that as the rent for the month of March 1994 had been tendered by the
appellant-tenant first on 2nd April 1994 and thereafter again on 25th April
1994, the initial tender was beyond the period prescribed under Section 4 of
the aforesaid Act and since the initial tender was invalid, all the other
subsequent deposits could not be held to be valid. On such reasoning, the
learned single Judge of the Calcutta High Court set aside the order passed by
the learned Civil Judge (Junior Division) and held that the appellant-tenant
was a defaulter in payment of rent from the month of March 1994. While holding
that the appellant- tenant was a defaulter, the learned single Judge also
observed that since the rents for the months of March 1994 to June 1995 had
already been deposited with the Rent Controller and subsequently in the trial
court, the respondent- landlord would be at liberty to withdraw the same.
It is the said decision of the learned single Judge of the Calcutta High
Court which is the subject matter of the civil appeal before us.
Appearing in support of the appeal, Mr. Pijush K. Roy, learned advocate,
urged that by no stretch of imagination could the appellant-tenant be said to
be a defaulter in payment of rent, since admittedly the rents had regularly
been deposited first with the Rent Controller, Howrah and thereafter with the
trial court with effect from March 1994. Mr. Roy submitted that the delay of 15
days in tendering the monthly rent for the month of March 1994 had been
occasioned by the fact that although initially the said amount had been
tendered within the time prescribed under Section 4 of the above Act, upon the
refusal by the respondent-landlord to accept the same, the same had to be
tendered again but a few days beyond the period prescribed under Section 4 of
the above Act. Mr.Roy submitted that on account of the above, the
appellant-tenant filed an application under Section 5 of the Limitation Act for
condonation of delay in tendering the rent and such application had been duly
allowed by the learned Civil Judge (Junior Division), Howrah, upon payment of
costs.
Mr.Roy then urged that, in any event, the West Bengal Premises Tenancy Act,
1956, had been enacted as a benevolent piece of legislation and under Section
17 (2A) of the said Act the court had been vested with ample power to extend
the time for making all deposits under Sub-section (1) and Sub- section (2) of
Section 17 of the said Act. Mr.Roy submitted that such an application having
been made, the same had been duly allowed by the learned Civil Judge (Junior Division)
and it was not open to the respondent-landlord to claim that the
appellant-tenant was, in fact, a defaulter in payment of monthly rents which
under the aforesaid Act has very serious consequences. In support of his
aforesaid submission, Mr.Roy firstly referred to a decision of this Court in
the case of M/s. B.P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick And Anr.,
(1987) 2 SCC 407, which was a case dealing with delay of two months in payment
of the rent. Considering the provisions of Section 17 (2A) and Section 17 (2A)
(b) of the Act, this Court held that the said default was a default in a
technical sense and not in the real sense and was hence of an inconsequential
nature. It was further observed that having regard to the intendment of the Act
and the nature of the provisions, it can never be said that the defaults were
of such a serious nature as to warrant the court refusing to exercise its
discretion and to feel constrained to strike out the defence.
Following the decision in B.P.Khemka's case (supra), this Court in the case
of Gopal Chandra Ghosh vs. Renu Bala Majumdar (Smt.) And Anr., (1994) 2 SCC
258, took a similar view regarding the powers of the court to extend the time
for making deposits of rents.
Mr. Roy then referred to a three-Judge Bench decision of this Court in Shibu
Chandra Dhar vs. Pasupati Nath Auddya, (2002) 3 SCC 617, where in similar
circumstances, this Court held that the relevant provisions would indicate that
the court has power to extend the time but that such power has to be judicially
exercised. Mr. Roy urged that in the aforesaid circumstances, the decision of
the learned single Judge of the Calcutta High Court could not be sustained and
was liable to set aside.
Opposing the prayer made on behalf of the appellant-tenant, Mr.Bijan Kumar
Ghosh, learned advocate appearing for the respondent-landlord, reiterated the
stand taken before the High Court that since the initial deposit of the monthly
rent for the month of March 1994 had been tendered beyond the time prescribed under
Section 4 of the Act, the said deposit and all subsequent deposits must be held
to be invalid and, therefore, the High Court had rightly held that the
appellant-tenant was a defaulter in payment of the monthly rents.
Mr.Ghosh urged that the application under Section 17 (2) and (2A) of the
above Act could not possibly cure the initial defect since the provisions
thereof were referable only to Sub-section (1) and Sub-section (2) of Section
17 and not Section 4 of the above Act.
Mr.Ghosh submitted that in the aforesaid circumstances, the application
filed by the appellant-tenant under the aforesaid provisions were of no
relevance to the facts at issue in the instant case.
Having regard to the fact that the West Bengal Premises Tenancy Act, 1956,
is a benevolent piece of legislation, we have carefully gone through the
provisions of the Act and the submissions made in connection therewith for the
purpose of examining the correctness of the view taken by the learned single
Judge of the Calcutta High Court.
While it is no doubt true that Section 4 of the Act provides that rents are
to be paid within the time fixed by the contract, or, in the absence of a
contract, by the 15th day of the month next following the month for which it is
payable, once a suit is filed on any of the grounds referred to in Section 13,
the tenant would be entitled to the benefits of extension of time under
Sub-Section (1) and Sub-section (2) of Section 17 of the Act with reference to
the amounts to be deposited within Sub-section (1) and (2) thereof. For the
purpose of better understanding, the provisions of Section 17 (1), Section 17
(2) and Section 17 (2A) are extracted hereinbelow:- "Section 17. When a
tenant can get the benefit of protection against eviction. (1) On a suit or
proceeding being instituted 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 proceeding 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 sub-section (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 application 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 (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 exceeding one
year, a preliminary order, pending final decision 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 preliminary 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 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 landlord
and the total sum inclusive of interest required to be deposited or paid under
sub- section (1) on account of default in the payment of rent, permit the
tenant to deposit or pay such sum in such instalments and by such dates as the
Court may fix:
Provided that where payment is permitted by instalments such sum shall
include all amounts calculated at the rate of rent for the period of default
including the period subsequent thereto up to 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 specified in sub-section (1) from the date
when such amount was payable up to the date of such order." From the said
provision, it would be evident that it was the intention of the Legislature
that on a suit for eviction being filed under the provisions of this Act, the
tenant was required to deposit rent either in court or with the Rent Controller
or pay to the landlord an amount equivalent to 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 of rent is made together with interest at the rate indicated
therein. In the instant case, there is no willful default in tendering of the
rents by the tenant to the landlord and it was only on account of the initial
refusal of the landlord that the tenant was compelled to tender rents for the
month of March 1994 for the second time which was according to the time
prescribed under Section 4 of the Act.
In our view, the provisions of the Act vests the court with ample authority
to extend the time for making the deposit of rents in case of default and this
is a fit case where the learned Civil Judge (Junior Division) has on a true
interpretation of the provisions of the Act and the circumstances of the case
came to a finding that the appellant-tenant was not a defaulter. As expressed
by this Court in B.P.Khemka's case (supra), the default, if any, was too
technical to be taken note of so as to arrive at a conclusion that the tenant
had committed wilful default in payment of the monthly rents.
Apart from the above, Section 39 of the Act provides that subject to the
provisions in this Act relating to limitation, all the provisions of the Indian
Limitation Act, 1908 shall apply to suits, appeals and proceedings under this
Act. Since Section 17 (2A) confers power upon the court to extend time for
making deposits of all arrears for the period in default, the application made
by the appellant-tenant under Section 5 of the Limitation Act for condonation
of delay in the initial tendering of the rent becomes meaningful.
For the reasons aforesaid, we are unable to agree with the views expressed
by the learned single Judge of the Calcutta High Court and we accordingly set
aside the order passed by the learned single Judge in the revision application
and restore the order of the learned Civil Judge (Junior Division), Howrah
holding that the appellant-tenant was not a defaulter in payment of the rents.
The appeal is accordingly allowed but there will be no order as to costs.
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