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CASE NO.: Appeal (civil)  3178 of 2005

PETITIONER: Gaya Prasad Kar                                                  

RESPONDENT: Subrata Kumar Banerjee                                         

DATE OF JUDGMENT: 03/10/2005

BENCH: Dr.AR Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T  

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

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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

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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.\027 (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

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for determination of the rent  payable.  On receipt of such  application, the Court shall\027

(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

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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.