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PETITIONER: J.L. VARANDANI

       Vs.

RESPONDENT: SMT. ASHALATA MUKHERJEE (DEAD) BY LRS.

DATE OF JUDGMENT03/08/1990

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: 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.

HEADNOTE:     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

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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]

JUDGMENT:     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

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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

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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

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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

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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. 618