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CASE NO.: Appeal (civil)  7253 of 2002

PETITIONER: Manik Lal Majumdar & Ors.

RESPONDENT: Gouranga Chandra Dey & Ors.

DATE OF JUDGMENT: 12/01/2005

BENCH: CJI R. C. Lahoti, G. P. Mathur P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

G. P. MATHUR, J.

1.      In view of difference of opinion between two learned Judges, the  present appeal was placed for hearing before this larger Bench and the issue  involved is whether an appeal preferred under Section 20 of the Tripura  Buildings (Lease and Rent Control) Act, 1975 (hereinafter referred to as ’the  Act’) without payment to the landlord or deposit with the appellate court all  arrears of rent admitted by the tenant to be due is not maintainable and is  liable to be rejected on that ground alone.

2.      Respondent No. 1 \026 Gouranga Chandra Dey filed an eviction petition  under Section 12 of the Act on the ground of bona fide requirement and also  default in payment of rent.  The  appellant-tenant contested the petition  taking various pleas.  The Rent Control Court, after appraisal of evidence on  record, recorded a finding that the plea raised by the landlord regarding bona  fide requirement of the premises was not established, but the appellants were  defaulters in payment of rent and accordingly passed an order directing their  eviction and for handing over possession of the premises in question to  respondent No. 1.  The appellants preferred an appeal against the decision of  the Rent Control Court, but the same was dismissed  by Civil Judge (Senior  Division), West Tripura, on the ground that as the appellants had failed to  deposit the arrears of rent as directed by the Rent Control Court, the appeal  preferred by them was not maintainable in view of Section 13(1) of the Act.   Thereafter the appellants preferred a Revision Petition before the District  Judge which was allowed and the order of Civil Judge (Senior Division) was  set aside and the appeal was remanded for consideration on merits.  Feeling  aggrieved, respondent No.1 filed a petition under Article 226 of the  Constitution before the Gauhati High Court. The learned Single Judge who  heard the petition was of the opinion that in view of the decision of the  Supreme Court in Chinnamma vs. Gopalan and others 1995 (6) SCC 491  an  earlier Division Bench decision of Gauhati High Court  in Binapani Roy &  Ors vs. State of Tripura and others 1994 (1) GLR 98 required  reconsideration by a larger Bench.  Thereafter the petition was heard by a  Division Bench which came to the conclusion that the decision of this Court  in Channamma vs. Gopalan and others (supra) did not touch the controversy  in dispute and accordingly the earlier decision rendered by the said High  Court in Binapani Roy’s case (supra) did not require reconsideration.   It was  further held that an appeal against an order under Section 12 of the Act was  not competent unless the provisions of Section 13(1) of the Act were  complied with and, accordingly, the reference to the larger Bench made by  the learned Single Judge was declined leaving the matter to be heard on  merits by the learned Single Judge.  

3.      The appellants  filed a Special Leave Petition against the decision of  the High Court which, after grant of leave, was heard by a bench of two

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learned Judges.  Shivaraj V. Patil, J held that in view of Section 13(1) of the  Act, before a tenant prefers an appeal under Section 20 against an order of  eviction made against him under Section 12 of the Act, he must either pay to  the landlord or deposit with the Rent Control Court all arrears of rent in view  of explicit language used in Section 13(1) of the Act.  However, D.M.  Dharmadhikari, J. held that a tenant can file or present a memorandum of  appeal in accordance with sub-section (1) of Section 20 of the Act, but until  and unless he seeks an order from the appellate authority in accordance with  sub-section (2) of Section 13 and makes deposit of all arrears of rent and  continues to pay future rent in the manner and within the time directed by  the appellate authority, he would not be entitled to prosecute the appeal and  obtain any interim or final relief against the order of the Rent Control Court  as is contemplated in sub-sections (2) & (3) respectively of the said Section.

4.      In order to appreciate the contentions raised by learned counsel for the  parties, it will be convenient to set out Sections 13 and 20 of the Act which  are relevant for the decision of the controversy.        "Section 13(1) :  No tenant against whom an application for  eviction has been made by a landlord under section 12 shall be  entitled to contest the application before the Rent Control Court  under that section, or to prefer an appeal under section 20  against any order made by the Rent Control Court on the  application, unless he has paid or pays to the landlord, or  deposits with the Rent Control Court or the appellate authority,  as the case may be, all arrears of rent admitted by the tenant to  be due, in respect of the building up to the date of payment or  deposit, and continues to pay or to deposit any rent which may  subsequently become due in respect of the building, until the  termination of the proceedings before the Rent Control Court or  the appellate authority, as the case may be.

(2)     The deposit under sub-section (1) shall be made within  such time as the Rent Control Court may fix and in such  manner as may be prescribed and shall be accompanied by the  fee prescribed for the service of notice referred to in sub-section  (4).     

Provided that the time fixed by the Rent Control Court  for the deposit of the arrears of rent shall not be less than forty  five days from the date of the order and the time fixed for the  deposit of rent which subsequently accrues due shall not be less  than two weeks from the date on which the rent becomes due.

(3)     If any tenant fails to pay or to deposit the rent as  aforesaid, the Rent Control Court or the appellate authority, as  the case may be, shall, unless the tenant shows sufficient cause  to the contrary, stop all further proceedings and make an order  directing the tenant to put the landlord in possession of the  building.  

(4)     When any deposit is made under sub-section(1), the Rent  Control Court or the appellate authority, as the case may be,  shall cause notice of the deposit to be served on the landlord in  the prescribed manner, and the amount deposited may, subject  to such conditions as may be prescribed, be withdrawn by the  landlord on application made by him to the Rent Control Court  or the appellate authority in that behalf.   

Section 20(1)(a) :  The State Government may, by general or  special order notified in the Official Gazette, confer on such  officers and authorities not below the rank of a subordinate  judge the powers of appellate authorities for the purposes of  this Act in such areas or in such classes as may be specified in  the order.  

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(b)     Any person aggrieved by an order passed by the Rent  Control Court may, within thirty days from the date of such  order, prefer an appeal in writing to the appellate authority  having jurisdiction.

Note : In computing the thirty days in this clause, the time taken  to obtain a certified copy of the order appealed against shall be  excluded.  

(2)     On such appeal being preferred, the appellate authority  may order stay of further proceedings in the matter pending  decision on the appeal.  

(3)     the appellate authority shall call for the records of the  case from Rent Control Court and after giving the parties an  opportunity of being heard, and if necessary, after making such  further inquiry as it thinks fit, either directly or through the  Rent Control Court, shall decide the appeal.

Explanation : The appellate authority may, while confirming  the order of eviction passed by the Rent Control Court, grant an  extension of time to the tenant for putting the landlord in  possession of the building.      

(4)     The appellate authority shall have all the powers of the  Rent Control  Court including the fixing of arrears of rent.

(5)     the decision of the appellate authority, and subject to  such decision, an order of the Rent Control Court shall be final  and shall not be liable to be called in question in any court of  law, except as provided in Section 22."

5.      Shri A.K. Ganguli, learned senior counsel for the appellants has  submitted that Section 20 of the Act which is a provision for preferring an  appeal against the order of the Rent Control Court does not lay down that  payment or deposit of all admitted arrears of rent is a condition precedent for  preferring an appeal.  In view of the clear mandate of sub-section (4) of  Section 20 that the appellate court shall have all the power of Rent Control  Court including fixing of arrears of rent, and having regard to the scheme  contained in sub-sections (2) & (3) of Section 13 of the Act, the appellate  authority can not only quantify the arrears of rent, but also the time limit for  depositing the same.  The appellate authority has been expressly conferred  power under sub-section (3) of Section 13 to grant further time or to  condone the default in making the deposit on sufficient cause being shown  and, therefore, an appeal preferred without making the requisite deposit  cannot be held to be not maintainable and is not liable to be rejected  straightaway on that ground alone.  Learned counsel has also submitted that  the mere filing of the appeal without payment or making the deposit by itself  does not cause any prejudice to the landlord inasmuch as it will always be  open to the appellate authority not to proceed with the hearing of the appeal  or to pass any interim order in favour of the tenant-appellant until the  requisite payment or deposit has been made.  Learned counsel for the  respondent(landlord) has, on the other hand, submitted that no litigant has  any inherent right of appeal in any cause.  The right of appeal is a creature of  the statute and it is always open to the legislature to provide or lay down the  condition subject to which alone an appeal may be preferred.   In this  connection learned counsel has drawn analogy from some taxing statutes  which require deposit of admitted amount of tax and also Section 173 of  Motor Vehicles Act for entertaining the appeal.  He has  further submitted  that the language of the statute is clear and unambiguous and on a plain  language thereof, the payment or deposit of admitted amount of rent by the  tenant is a condition precedent for preferring an appeal and in absence of  such payment or deposit, the appeal would be incompetent and is liable to be  rejected.

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6.      Clause (b) of sub-section (1) of Section 20 provides that any person  aggrieved  by an order passed by the Rent Control Court may, within thirty  days from the date of such order, prefer an appeal in writing to the appellate  authority having jurisdiction.  Sub-section (4) of Section 20 specifically  provides that the appellate authority shall have all the powers of the Rent  Control Court including the fixing of arrears of rent.  Section 13 is a general  provision which applies both during the pendency of eviction proceedings  under Section 12 of the Act before the Rent Control Court and also to  proceedings before an  appellate authority in  an appeal under Section 20 of  the Act.  Sub-section (1) of Section 13 lays down that any tenant against  whom an application for eviction has been made by a landlord shall not be  entitled to contest the application before the Rent Control Court or to prefer  an appeal under Section 20 against any order made by the said Court unless  he has paid or pays to the landlord or deposits with the Rent Control Court  or the appellate authority, as the case may be,  all arrears of rent, admitted by  the tenant to be due and continues to pay or deposit any rent which may  subsequently become due in respect of the building in question until the  termination of the  proceedings before the Rent Control Court or the  appellate authority, as the case may be.  The expression "all arrears of rent  admitted by the tenant to be due", if interpreted literally, would mean that  unless the tenant specifically admits any arrears of rent to be due to the  landlord, the condition to make the payment of arrears of rent in order to  contest the original proceedings before the Rent Control Court or to prefer  an appeal as provided under Section 13 of the Act would not arise.  The  High Court in Binapani Roy’s case (supra) has held that giving literal  meaning to the words " admitted by the tenant to be due" would frustrate the  provisions of Section 13 of the Act and make the same nugatory or otiose.  The object of sub-section (1) of Section 13 of the Act is to avoid litigation  for realization of arrears of rent which is likely to accumulate during the  course of litigation, which may be a long period and also to deter the tenant  from resorting to an unfair practice to use and occupy the tenanted premises  without payment of any rent so long as the litigation continues.  The High  Court was of the opinion that the reasonable meaning of the words "admitted  by the tenant to be due"  is the inference of admission from the material on  record.  If the material on record prima facie discloses the admission of  relationship of landlord and tenant and the rate of monthly rent payable, the  tenant would be required to pay or deposit arrears of rent and continue  payment of current rent during the pendency of the litigation, as enjoined  under Section 13 of the Act.  Dharmadhikari, J. has expressed his  concurrence with the aforesaid view taken by the Division Bench of the  Gauhati High Court in the case of Binapani Roy (supra).  We are also of the  opinion that the view taken by the Division Bench of the High Court on this  point is perfectly sound as giving a literal meaning to the expression "all  arrears of rent admitted by the tenant to be due" may defeat the very object  of enacting Section 13 of the Act and an unscrupulous tenant may continue  to enjoy the premises  without payment of any rent to the landlord by  protracting the litigation and the landlord may have to wait till the final  decision of the case to recover his dues by taking execution proceedings.     

7.      Sub-section (2) of Section 13 provides that a deposit under sub- section (1) shall be made within such time as the Rent Control Court may  fix.  The proviso appended to this  sub-section shows that the time fixed by  the Rent Control Court for the deposit of arrears of rent shall be within forty  five days  from the date of the order and the time fixed for the deposit of rent  which subsequently accrues due shall not be less than two weeks from the  date on which the rent becomes due.   Sub-section (3) of Section 13 lays  down that if any tenant fails to pay or to deposit the rent as provided in sub- section (1), the Rent Control Court or the appellate authority, as the case  may be, shall, unless the tenant shows sufficient cause to the contrary, stop  all further proceedings and make an order directing the tenant to put the  landlord in possession of the building.  The effect of sub-section (3)  therefore, is that if the tenant does not comply with the requirement of sub- section (1) the Rent Control Court or the appellate authority  as the case may  be, shall stop further proceedings and direct the tenant to put the landlord in

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possession of the building.  However, a discretion has been conferred upon  the Rent Control Court or the appellate authority not to pass such an order  i.e. of stopping further proceedings and directing the tenant to put the  landlord in possession of the building, if the tenant shows sufficient cause  for not having complied with the requirement of sub-section (1) of Section  13 of the Act.  It may be noticed that the legislature has made a specific  provision by enacting sub-section (4) of Section 20 of the Act, namely, that  the appellate authority shall have all the powers of the Rent Control Court  including fixing of arrears of rent.  Though the sub-section is couched in  wide language conferring all the powers of Rent Control Court upon the  appellate authority, still the legislature consciously and deliberately has  added the words "including the fixing of arrears of rent".  The expression  "arrears of rent" finds place in sub-section (1) of Section 13 of the Act  and  is clearly referable to the said provision.               

8.      It is a well-settled principle that the intention of the legislature  must be found by reading the statute as a whole and in order to ascertain the  meaning of a clause in a statute, the court must look at the whole statute, at  what precedes and what succeeds and not merely the clause itself.  The court  must ascertain the intention of the legislature by directing its attention not  merely to the clauses to be construed, but to the entire statute; it must  compare the clause with the other parts of the law and the setting in which  the clause to be interpreted occurs (see State of West Bengal vs. Union of  India AIR 1963 SC 1241 and R.S. Raghunath vs. State of Karnataka AIR  1992 SC 81).   Therefore, it is necessary to give full meaning and effect to  the provisions of sub-sections (2) and (3) of  Section 13 of the Act.  The full  play and effect cannot be given to sub-sections (2) and (3) of Section 13 of  the Act if the expression "prefer an appeal" is interpreted to mean that the  payment to the landlord or deposit with the Rent Control Court of all arrears  of rent admitted by the tenant to be due is a pre-condition for filing a  memorandum of appeal.  However, if such payment or deposit of arrears of  admitted rent is not held to be a pre-condition for mere filing or presentation  of memorandum of appeal, it will be possible for the appellate authority to  give full effect to sub-sections (2) & (3) of Section 13 of the Act.      

9.      The dictionary meaning of the word ’prefer’ is as under:

       To bring forward for consideration; to place in advance; to bear  before; put before; to move ahead or set forward.  

       According to Black’s Law Dictionary, the word ’prefer’ means as  under:          To bring before; to prosecute to try to proceed with.  Thus preferring  an indictment signifies prosecuting or trying an indictment.  

10.     In  Commissioner of Income Tax vs. B.N. Bhattacharjee AIR 1979 SC  1725 while interpreting the proviso appended to sub-section (1) of Section  245 of the  Income Tax Act which said that " no such assessee shall be  entitled  to make an application in a case where the Income Tax Officer has  preferred an appeal  under sub-section (2) of Section 253 against the order to  which the assessee’s appeal relates", it was observed that there is good  ground to think that an appeals means an effective appeal.   The Court went  on to observe that it may mean ’prosecute’ or ’effectively pursue a  proceeding’ or ’merely institute’ it.  Purposefully interpreted, preferring an  appeal means more than formally filing it but effectively pursuing it.                                                    11.     If the expression "prefer an appeal" occurring in sub-section (1) of  Section 13 of the Act  is interpreted to mean the mere filing of a  memorandum of appeal, it may also result in extreme hardship to the tenant  or even make the provisions of Section 20 regarding an appeal against the  order of Rent Control Court nugatory in some cases.  It may be noticed  under clause (b) of sub-section (1) of Section 20, the limitation for preferring  an appeal against the order passed by the Rent Control Court is only thirty

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days.  Therefore, if the appeal is not preferred within the said period of thirty  days (excluding the period spent in obtaining the certified copy of the order  appealed against), the same shall become barred by limitation and would be  liable to be rejected on that ground alone.  The tenant, on account of some  personal difficulty or problem may not be in a position to deposit all arrears  of rent  admitted by him to be due within the period of thirty days.   In such  an event, he may be precluded from challenging the order of Rent Control  Court as the memorandum of appeal filed by him without making payment  or deposit of arrears of rent would be liable to be rejected straightaway.  We  are, therefore, of the opinion that on a conjoint reading of all the provisions  of the Act and giving a fair and reasonable interpretation thereto an appeal  under Section 20 of the Act may be filed or presented without payment to  the landlord or deposit with the appellate authority all arrears of rent  admitted by the tenant to be due and it cannot be held to be incompetent.   However, it will be open to the appellate authority not to proceed with the  hearing of the appeal or to pass any interim order in favour of the appellant- tenant until he has paid or deposited all arrears of rent admitted by him to be  due, and for such purposes the appellate authority shall have all the powers  under sub-sections (2) and (3) of Section 13 of the Act.

12.     The view taken by the appellate authority that as the appellant(tenant)  had not paid or deposited all arrears of rent admitted by him to be due the  appeal filed by him was incompetent is, therefore, clearly unsustainable in  law and the revisional authority rightly set aside the said order and remanded  the matter for fresh consideration by the appellate authority.  The Division  Bench of the High Court, under the impugned order, has held that the  reference to larger bench made by the learned Single Judge was not called  for and directed the writ petition to be placed for hearing on merits before  the learned Single Judge.  Since we have held that the appeal filed by the  appellant against the decision of the Rent Control Court could not be  rejected only on the ground that the admitted arrears of rent had not been  paid or deposited, the hearing of the writ petition now by the learned Single  Judge would entail waste of public time.  We, therefore, direct that the  appeal preferred by the appellant be heard and decided in accordance with  the direction issued by the learned District Judge, West Tripura, by the  judgment and order dated 26.4.1997 in Civil RCC Revision  No. 2 of 1996  and in accordance with law.   The appeal is disposed of in terms of these  directions.

13.     The parties shall bear their own costs.